STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNRISE COMMUNITY, INC., )

)

Petitioner, )

)

vs. ) Case No. 96-3149F

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, J. D. Parrish, held a telephone conference call in the above-styled case on September 30, 1996.

APPEARANCES

For Petitioner: Steven M. Weinger

Helena Tetzeli

KURZ BAN KURZ BAN and WEINGER, P.A.

2650 Southwest 27th Avenue, 2nd Floor Miami, Florida 33133

For Respondent: Roger Maas

Senior Attorney

Agency for Health Care Administration 2727 Mahan Drive, No. 1

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to attorneys' fees and costs and, if so, in what amount.

PRELIMINARY STATEMENT

This case is the progeny of DOAH Case No. 93-3687, wherein Petitioner, Sunrise Community, Inc., challenged the Department's

rejection of certain cost reports used to calculate the Medicaid reimbursement to which Petitioner was entitled. The recommended order issued in that case closed the file of the Division of Administrative Hearings and recommended that the agency issue a final order of dismissal.

Such recommendation was entered based upon the withdrawal of the agency action letter and the acceptance of the Petitioner's cost reports. Thus, there were no disputed issues of fact to be resolved. The recommended order was entered on December 29, 1993. By separate final order also entered that date, a motion for attorney's fees and costs was denied but recognized Petitioner's right to assert fees pursuant to Section 57.111, Florida Statutes, once the final order would be entered.

By final order entered by the Agency for Health Care Administration on May 2, 1996, the recommended order was adopted and incorporated by reference, the case was deemed moot, and the file in the matter closed. Thereafter, the Petitioner timely filed the instant motion for attorney's fees and costs.

Pursuant to notice, a conference call in the above-styled case was conducted and an order was entered on January 29, 1997, which granted the agency's motion to strike the request for fees based upon Section 57.105, Florida Statutes. Such order further granted Petitioner leave to file an amended petition with supporting affidavit as to the request for fees pursuant to Section 57.111, Florida Statutes. An amended motion for fees and costs together with the affidavit was filed on February 12, 1997. Respondent has not filed a response to such amended motion.

Rule 60Q-2.035(7), Florida Administrative Code, provides for an evidentiary hearing on an application or petition for attorney's fees and costs under Section 57.111, Florida Statutes, upon timely request. In this case, since no request for an evidentiary hearing has been filed, this cause may be determined based on the pleadings and supporting documents along with the files of the Division of Administrative Hearings.

FINDINGS OF FACT

1. On or about April 29, 1993, the Department of Health and Rehabilitative Services issued an agency action letter which rejected certain of Petitioner's cost reports in calculating the Medicaid reimbursement to which Petitioner was entitled. As a result, the Medicaid reimbursement to Petitioner was reduced.

   
   

2. Thereafter, Petitioner timely filed a challenge to the agency action, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings, DOAH Case No. 93-3687. Such case was assigned to Judge Arrington and scheduled for hearing in Miami for October 14-15, 1993.

   
   

3. On October 12, 1993, the Department filed a suggestion of mootness which led to the withdrawal of the agency action letter, the acceptance of Petitioner's cost reports, and, presumably, to the recalculation of the Medicaid reimbursement favorable to Petitioner.

   
   

4. On May 2, 1996, the agency, now the Agency for Health Care Administration, entered a final order adopting the recommended order.

   
   

5. On July 1, 1996, the Petitioner filed the instant motion for attorney's fees and costs and supporting memorandum of law together with the exhibits thereto.

   
   

6. On or about September 6, 1996, Respondent filed a motion to dismiss or alternatively motion to strike Petitioner's motion for attorney's fees and costs, and argued that the Petitioner is not entitled to fees pursuant to Section 57.105, Florida Statutes; that the affidavit submitted by Petitioner does not comply with the statute; that Petitioner is not a prevailing party under Section 57.111, Florida Statutes; and that the relief requested exceeds the maximum award of

   $15,000.00. Such responses relate only to the initial pleading filed, however, and not to the amended request filed on February 12, 1997.

   
   

7. Petitioner has a net worth of not more than

   $2,000,000.00 and its principal place of business is Dade County, Florida.

   
   

8. Petitioner's attorney's normal billing rate for general matters is $250.00 and he expended in excess of 100 hours of time in the litigation of the underlying matter.

   
   

9. Petitioner has requested $87,500.00 in attorney's fees as the prevailing party in the principal case and $21,875 for litigation on the issue of fees and costs.

   
   

10. Petitioner alleged it is entitled to fees and costs pursuant to Sections 57.105 and 57.111, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 57.105, Florida Statutes, provides, in part:

    
    

    1. The court shall award a reasonable attorney's fees to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. .

       . . (Emphasis added.)

       Such section does not authorize ah award of attorney's fees and costs in an administrative proceeding. Accordingly, the Division of Administrative Hearings does not have jurisdiction to award same pursuant to such statute.

       
       

12. Section 57.111, Florida Statutes, entitled the Florida Equal Access to Justice Act, provides for an award of attorney's fees and costs to a prevailing small business party in an administrative proceeding and sets forth the procedure and criteria for obtaining such an award. In furtherance of that statutory procedure, the Division of Administrative Hearings has promulgated Rule 60Q-2.035, Florida Administrative Code.

    
    

13. Section 57.111, Florida Statutes, provides, in pertinent part:

    
    

    (3)(d) . . . [t]he term "small business party" means:

    
    

    l.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments; or

    b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million. . . .

    
    

    * * *

    
    

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

14. In this case, the Respondent has, by its failure to respond to the amended request, conceded that Petitioner is a small business party, that the underlying action was initiated by the agency, that Petitioner prevailed in the underlying case, and that the attorney's fees and costs claimed are not unreasonable. Department of Insurance and Treasurer v. Administrators Corp., 603 So. 2d 1359 (Flat 1st DCA 1992).

    
    

15. Respondent has failed to set forth any basis from which it could be concluded that its actions were "substantially justified or special circumstances exist which would make the award unjust." Department of Professional Regulation v. Toledo Realty,Inc., 549 So. 2d 715 (Flat 1st DCA 1989).

    
    

16. The amended request for fees alleged that the Petitioner is a prevailing party in the underlying proceeding, that the Petitioner is a small business party, and that the Department was not substantially justified in issuing the agency action letter. It is clear the Petitioner succeeded in having the agency reverse its decision and recalculate the Medicaid reimbursement. Thus, the amended motion, together with the supporting affidavit, is legally sufficient to support an award of fees and costs.

    
    

17. Petitioner is entitled to recover $15,000, the maximum award allowed by law.

ORDER

Based on the foregoing, it is hereby ORDERED:

That the claim for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, is hereby granted with Petitioner being entitled to the statutory maximum award of

$15,000.00.

DONE AND ENTERED this 25th day of March, 1997, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1997.

COPIES FURNISHED:

Roger R. Maas Senior Attorney

Agency for Health Care Administration 2727 Mahan Drive, No. 1

Tallahassee, Florida 32308

Steven Weinger Helena Tetzeli

KURZ BAN KURZ BAN WEINGER and TETZELI, P.A.

2650 SW 27th Avenue, 2nd Floor Miami, Florida 33133

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, No. 3431

Tallahassee, Florida 32308

Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 96-003149F

Orders for Case No: 96-003149F