STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT FRANKL, D.C., )

)

Petitioner, )

)

vs. ) Case No. 98-2042F

)

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

July 27, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth Renee Alsobrook, Esquire

Alsobrook and Dove, P.A. Post Office Box 10426

Tallahassee, Florida 32312-2426

For Respondent: Thomas E. Wright, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229 STATEMENT OF THE ISSUES

At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." Also at issue is whether, as contended by Respondent, there is "a complete absence of a justiciable issue of either law or fact

raised by [Petitioner's claim]" and, therefore, Respondent should be awarded attorney's fees and costs pursuant to Section 57.105, Florida Statutes.

PRELIMINARY STATEMENT

On May 4, 1998, Petitioner, Robert S. Frankl, D.C.

(Dr. Frankl), filed a petition for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." The predicate for such an award was Dr. Frankl's contention that he was a "prevailing small business party" in a disciplinary proceeding Respondent had initiated against him (the underlying proceeding).

The Respondent, Department of Health (Department), responded to the petition for attorney's fees and costs on May 22, 1998.

According to the Department's response, it agreed that Dr. Frankl was a prevailing party in the underlying action and that his request for attorney's fees and costs was timely; however, it disputed Dr. Frankl's status as a "small business party," as defined by Section 57.111(3)(d), Florida Statutes; did not agree that the attorney's fees and costs sought by Dr. Frankl were reasonable and necessary; and contended its actions were substantially justified or special circumstances existed which would make an award unjust. Moreover, the Department's response included a counter-petition for attorney's fees and costs pursuant to Section 57.105(1), Florida Statutes, based on the following allegations:

1. On December 22, 1997, the Probable Cause Panel of the Board of Chiropractic reconsidered the above styled cause, and pursuant to that reconsideration dismissed the Administrative Complaint.

2. In return for a recommendation from the undersigned to the Probable Cause Panel to dismiss this case, counsel for the counter Respondent forwarded to the undersigned a letter evincing a wavier of attorney's fees and costs. [That letter is attached as Exhibit A and provides:

   
   

   Pursuant to our telephone conversation of Friday, December 19, 1997 this letter will confirm that upon your recommendation to the Probable Cause Panel of the board of Chiropractic on Monday, December 22, 1997 at 12:30 p.m. that you will be requesting on behalf of AHCA that the instant investigation in regards to

   Dr. Frankl be closed (given the Voluntary Dismissal)[.] Dr. Frankl, in turn, agrees to waive any action for attorneys' fees related to this case so long as the Probable Cause Panel elects to close their investigation against Dr. Frankl on December 19, 1997 (sic) at the hearing.]

   
   

3. The undersigned did in fact make such a recommendation to the Probable Cause Panel, and the Probable Cause Panel followed that recommendation and dismissed the Administrative Complaint herein.

4. The instant action for attorney's fees and costs filed by the Counter Respondent contains no justiciable of law or fact.

5. Counter Petitioner is incurring attorney's fees and costs in defense of this action.

On June 9, 1998, Dr. Frankl filed an answer to the counter- petition as follows:

1. Denied. It is not clear whether the probable cause panel meeting at which the referenced case was reconsidered and closed was held on December 22, 1997. The minutes of the meeting reference both "December 22,

   1997" and "Tuesday, December 23, 1997". The tape recording of the referenced reconsideration maintained by the Board of Chiropractic does not reference a date upon which the meeting was held. Dr. Frankl agrees that if the panel voted to close the case on December 22, 1997, he has agreed to waive attorney fees.

2. Denied. The exact waiver provided in Exhibit "A" to the Counter Petitioner is solely a waiver of attorney fees "so long as the Probable Cause Panel elects to close their investigation against Dr. Frankl . . . at the hearing" scheduled for December 22, 1997. It is unclear from the Board of Chiropractic Records that this condition was, in fact met. It is clear from the waiver itself that the Counter-Respondent did not at any time agree to waive his right to seek costs in this matter.

3. Admitted.

4. Denied. The following matters are at issue:

   1. The meeting of the condition of the waiver of attorney's fees.

   2. The award of attorney's fees if the condition has not been met.

   3. The award of costs.

5. The Counter-Respondent has no knowledge regarding the veracity of the allegations contained in paragraph five (5) of the Counter-Petition. (Emphasis in original.)

At hearing, Petitioner testified on his own behalf, and Petitioner's Exhibit 1 was received into evidence.1 Respondent called Thomas E. Wright and Robert B. Taylor, as witnesses, and Respondent's Exhibits 1, 2, 3, and 10 were received into evidence.2

The transcript of hearing was not ordered. Consequently, at the conclusion of the hearing, it was announced on the record that the parties were accorded ten days from the date of hearing to file proposed final orders. The parties elected to file such

proposals, and they have been duly considered.

FINDINGS OF FACT

Finding related to the underlying disciplinary action

1. The Department of Health, Division of Medical Quality Assurance, Board of Chiropractic (Department), is a state agency charged with the duty and responsibility for regulating the practice of chiropractic pursuant to Section 20.43 and

   Chapters 455 and 460, Florida Statutes.3

2. At all times material hereto, Petitioner, Robert Frankl,

   
   

   D.C. (Dr. Frankl), was licensed to practice chiropractic in the State of Florida, having been issued license number CH 0002560.

3. On August 6, 1997, the Department filed a two-count Administrative Complaint against Dr. Frankl (agency case number 94-20261). Count I charged Dr. Frankl violated Subsection 460.413(l)(m), Florida Statutes, by failing to keep written chiropractic records justifying the course of treatment of a patient, including patient histories, examination results, test results, X-rays, diagnosis of a disease, condition or injury. Count II charged Dr. Frankl violated Subsection 460.413(l)(v), Florida Statutes, by violating Rule 59N-17.0065(2), Florida Administrative Code, which requires that adequate patient records be legibly maintained, and that initial and follow-up services (daily notes) shall consist of documentation to justify care.

4. For such violations, the Department proposed that one or more of the following penalties be imposed:

   . . . suspension of . . . [Dr. Frankl's] license, restriction of . . . [Dr. Frankl's]

   practice, imposition of an administrative fine, issuance of a reprimand, placement of

   . . . [Dr. Frankl] on probation, and/or any other relief that the Board [of Chiropractic] deems appropriate.

   
   

5. Dr. Frankl disputed the allegations of fact contained in the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing. The matter was assigned DOAH Case No. 97-4109, and a hearing was duly scheduled for December 17, 1997.

6. Shortly prior to hearing, the Department filed a motion to relinquish jurisdiction that was denied by the administrative law judge. Pertinent to this case, the reaction of Dr. Frankl's counsel to the Department's maneuver was memorialized in a letter of November 20, 1997, from Dr. Frankl's counsel to the Department's counsel, as follows:

   This letter will confirm our telephone conversation of today in which you advised me that the Administrative Law Judge denied the AHCA's Motion to Relinquish Jurisdiction. At this point you are contemplating whether or not to voluntarily dismiss Count I and II of the Administrative Complaint. Thereafter, the AHCA may decide to re-charge Dr. Frankl if the Chiropractic Probable Cause Panel finds cause after re-reviewing this case.

   
   

   In the event that the AHCA recommends that this case be re-presented to the Probable Cause Panel for purposes of re-charging him, please be advised that Dr. Frankl will be prosecuting the AHCA and/or the Chiropractic Probable Cause Panel for attorney's fees especially given the potential dismissal of the pending charges against him. Dr. Frankl is willing to waive his claim for attorney's fees if the AHCA and/or the Panel consider immediate dismissal with prejudice of any and

   all charges arising out of this matter, including the charges alleged in the investigative report.

   
   

   From the beginning of the Panel's investigation of Dr. Frankl almost two years ago, they would have certainly pursued all potential violations against him for purposes of bringing the subsequent Administrative Complaint. Notwithstanding their investigation of all potential violations against Dr. Frankl, as identified in their investigative report, the AHCA chose only to prosecute two of those charges in the form of a two count Administrative Complaint against him. Certainly at that time counsel for the AHCA would have been aware of all of the charges in the investigative report when they filed the two count Complaint against him.

   
   

   By counsel for the AHCA's own actions in prosecuting only these two charges in the Complaint and not the remainder of the charges in the investigative report proves that the remaining allegations in the report are meritless (even though the AHCA would like to now have these same charges re- presented to the Probable Cause Panel for purposes of potentially re-charging him).

   Dr. Frankl has had to spend considerable monies, time, costs and attorney's fees in defending this matter. The situation is tantamount to a witch hunt by the Panel to find anything to hang over Dr. Frankl's head. Further, the last minute attempts by the AHCA on the eve of trial, presently set for December 17, 1997, to have the Judge relinquish jurisdiction because they realized the counts were meritless in view of their own experts' reports proves that the Panel and/or the State seek to prolong the process and harass Dr. Frankl and thereby deny him his day-in-court to defend these charges and bring this matter to a final resolution.

7. Subsequently, counsel for the Department and counsel for Dr. Frankl reached an agreement whereby counsel for the Department would recommend to the Board of Chiropractic that the

   investigation against Dr. Frankl be closed. In exchange, Dr. Frankl, through counsel, agreed, provided the investigation was closed, to waive any action for attorney's fees related to the case. The parties agreement was memorialized in a letter, dated December 19, 1997, from Dr. Frankl's counsel to the Department's counsel, as follows:

   Pursuant to our telephone conversation of Friday, December 19, 1997 this letter will confirm that upon your recommendation to the Probable Cause Panel of the Board of Chiropractic on Monday, December 22, 1997 at 12:30 p.m. that you will be requesting on behalf of AHCA that the instant investigation in regards to Dr. Frankl be closed (given the Voluntary Dismissal)4[.] Dr. Frankl, in turn, agrees to waive any action for attorneys' fees related to this case so long as the Probable Cause Panel elects to close their investigation against Dr. Frankl on December 19, 1997 (sic) [December 22, 1997] at the hearing.

8. A memorandum of the Probable Cause Panel, Board of Chiropractic, for the Probable Cause Panel meeting of December 22, 1997, notes that the panel resolved that "PROBABLE CAUSE WAS NOT FOUND IN THIS CASE." (Respondent's Exhibit 3.) That finding resulted in the entry of a formal "CLOSING ORDER" on January 16, 1998, which provided:

   THE COMPLAINT: The Complaint alleges that the Subject is in violation of Section 460.413(l)(m), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of the patient.

   
   

   THE FACTS: On or about June 18, 1995, Patients A.M. and J.M. voluntarily withdrew their complaint against the Subject; and

   stated that no violations occurred.

   
   

   On or about November 7, 1995, an Agency expert opined that the Subject's records on Patients A.M. and J.M. contain "adequate initial history and examination records" and "they seem to correspond with dates of services as are noted in billings."

   On or about April 3, 1996, probable cause was found that a violation of Section 460.413(l)(m), Florida Statutes, occurred.

   
   

   On or about April 4, 1997, another Agency expert opined "that legible written chiropractic records were kept on both patients J.M. and A.M. justifying treatment."

   
   

   THE LAW: Based on the foregoing, although probable cause had previously been found by the panel to exist, in light of the foregoing, the case shall be dismissed.

   
   

   It is, therefore, ORDERED that this matter be, and the same is hereby, DISMISSED.

   
   

   Findings relating to Dr. Frankl's claim for attorney's fees and costs under Section 57.111, Florida Statutes

   
   

9. Pertinent to Dr. Frankl's claim for attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Frankl prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs would be appropriate provided Dr. Frankl can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust.

10. Addressing first Dr. Frankl's status, the proof demonstrates that at the time the underlying proceeding was

    initiated, and at all other times material hereto, Dr. Frankl practiced chiropractic through a professional service corporation, as authorized by Chapter 621, Florida Statutes. The principal (sole) office of the corporation was located in Hollywood, Florida, and at the time the underlying action was initiated by the Department, the corporation had not more than 25 full-time employees or a net worth of not more than two million dollars. Dr. Frankl was, and continues to be, the sole owner of the corporation. Given the proof, for reasons more fully stated in the Conclusions of Law, Dr. Frankl was not a "small business party," as defined by law, when the underlying proceeding was initiated.5

11. As for the reasonableness of the attorney's fees and costs claimed, it is observed that, with regard to attorney's fees, Dr. Frankl offered no proof that any attorney time or fee was incurred in the underlying proceeding. Consequently, there is no record basis upon which to assess a reasonable fee. Standard Guarantee Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994).

12. With regard to costs, Dr. Frankl did offer testimony that, at the attorney's request, he provided his attorney in the underlying case with four copies of his office file at a cost of

    $118. There was, however, no showing as to why the documents were requested (their need), and, therefore, no showing that the costs were necessarily incurred. Fundamentally, copying costs are generally not recoverable, and there was no showing in the instant case that Dr. Frankl's claim met any recognized exception.6 Florida Rules of Court, Statewide Uniform Guidelines for Taxation of Costs in Civil Actions.

    Findings relating to the Department's claim for attorney's fees and costs under Section 57.105, Florida Statutes

    
    

13. Pertinent to the Department's claim for attorney's fees and costs under Section 57.105, Florida Statutes, the Department claims that there was a complete absence of any justiciable issue of law or fact to support Dr. Frankl's claim or application for an award of attorney's fees and costs under Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." The gravamen of the Department's position is its contention that, as evidenced by the letter (of December 19, 1997) from Dr. Frankl's counsel, he waived any claim for attorney's fees and costs when the Probable Cause Panel of the Board of Chiropractic closed their investigation (dismissed the case). In contrast,

    Dr. Frankl contends that there was never an agreement to waive costs. As for the waiver of attorney's fees, Dr. Frankl contended:

    . . . It is not clear whether the probable cause panel meeting at which the referenced case was reconsidered and closed was held on December 22, 1997. The minutes of the meeting reference both "December 22, 1997"

    and "Tuesday, December 23, 1997". The tape recording of the referenced reconsideration maintained by the Board of Chiropractic does not reference a date upon which the meeting was held. Dr. Frankl agrees that if the panel voted to close the case on December 22, 1997, he has agreed to waive attorney fees.7 (Emphasis in original.)

14. Addressing first the issue of attorney's fees, the only proof of record reflects that, at the Probable Cause Panel meeting of December 22, 1997, the Panel voted no probable cause or, stated differently, to close the case. Consequently, by the terms of their agreement, Dr. Frankl waived any claim for attorney's fees. Moreover, whether the Panel had voted on December 23, 1997, as opposed to December 22, 1997, to close the case is immaterial or, stated differently, a distinction without a meaningful difference. Consequently, Dr. Frankl's claim for attorney's fees was lacking any justiciable issue of law or fact.

15. While Dr. Frankl's claim lacked merit with regard to his claim for attorney's fees, the same cannot be said for his claim for costs. In this regard, it is observed that while the Department alleged the waiver was for attorney's fees and costs, the parties agreement (as evidenced by the letter of December 19, 1997) states otherwise, and the Department offered no proof that the parties intent was other than that evident from the express language of the parties' agreement.

16. Given the foregoing, it must be concluded that the Department failed to demonstrate that Dr. Frankl's claim was entirely without merit. More importantly, for reasons appearing

    in the Conclusions of Law, the Department was not, as a matter of law, entitled to attorney's fees under the provisions of Section 57.105, Florida Statutes. Finally, like Dr. Frankl, the Department failed to present competent proof to demonstrate what attorney's fees, if any, were necessarily and reasonably incurred.8

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 57.111, Florida Statutes.

18. Here, Dr. Frankl has filed an application with the Division of Administrative Hearings for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and the Department has counter-petitioned for attorney's fees and costs pursuant to Section 57.105(1), Florida Statutes. With regard to such claims, the burden rests on the respective proponent of the award to demonstrate, by a preponderance of the evidence, entitlement to the requested award. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977), ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

    The claim for attorney's fees and costs pursuant to Section 57.111, Florida Statutes

    
    

19. Pertinent to this case, the "Florida Equal Access to Justice Act," Section 57.111, Florida Statutes, provides:

    (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 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.

20. By its response to the application for attorney's fees and costs, the Department agreed that the underlying action was initiated by the Department, or its predecessor, that Dr. Frankl prevailed in the underlying proceeding, and that the claim for attorney's fees and costs was timely filed. Section 57.111(4), Florida Statutes, and Department of Insurance and Treasurer v. Administrators Corp., 603 So. 2d 1359 (Fla. 1st DCA 1992). However, the Department disputed Dr. Frankl's status as a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, did not agree that any attorney's fees or costs sought by Dr. Frankl were reasonable or necessary, and contended that, when the underlying proceeding was initiated, its actions were substantially justified or special circumstances exist which would make an award unjust.

21. Pertinent to this case, "small business party," as that term is used in Section 57.111, Florida Statutes, is defined as follows:

    (d) The term "small business party" means:

    1.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; .

    . .

    
    

    Section 57.111(3)(d)1a, Florida Statutes.

    
    

22. As noted in the Findings of Fact, at the time the underlying proceeding was commenced against Dr. Frankl, he practiced chiropractic through a professional service corporation and was not, therefore, a sole proprietor of an unincorporated business. Consequently, Dr. Frankl was not a "small business party," as defined by law. Section 57.111(3)(d)1a, Florida Statutes, Florida Real Estate Commission v. Shealy, 647 So. 2d

    151 (Fla. 1st DCA 1994). See also Rivera v. Deauville Hotel, Employers' Service Corp., 277 So. 2d 265 (Fla. 1973), (An award of attorney fees to any litigant is in derogation of the common law and is allowed only when provided for by contract or statute.); Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995), ("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."); and Hooper v. State Road Department, 105 So. 2d 515, 516 (Fla. 2d DCA 1958), ("[I]t is a cardinal rule of statutory construction that the plain meaning of a statute will not be disturbed in the absence of ambiguity or conflict."). Finally, were an ambiguity or conflict to exist with the statute, which it does not, it is a general principle of statutory, construction that the mention of one thing implies the

    exclusion of another. Devin v. City of Hollywood, 351 So. 2d 1022 (Fla. 4th DCA 1976). Hence, where, as here, a statute enumerates who may file a claim, it would ordinarily be construed as excluding from its operation all those not expressly mentioned. Consequently, Dr. Frankl has failed to demonstrate entitlement to attorney's fees and costs under Section 57.111, Florida Statutes.9

    The claim for attorney's fees and costs pursuant to Section 57.105, Florida Statutes

    
    

23. Pertinent to the Department's claim for attorney's fees and costs. Section 57.105(1), Florida Statutes, provides:

    1. The court shall award a reasonable attorney's fee 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; provide, however, that the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the defense, the court shall also award prejudgment interest. (Emphasis added.)

24. Here, as observed in the Findings of Fact, the Department failed to demonstrate that Dr. Frankl's claim was devoid of any justiciable issue of either law or fact. More fundamentally, Section 57.105(1), Florida Statutes, limits the authority to render such an award to a "court . . . in any civil action," and does not authorize an administrative law judge of

the Division of Administrative Hearings, to award attorney's fees. Finally, as heretofore noted, the proof offered by the Department was not sufficient to derive a reasonable attorney's fee award. Consequently, there is no basis upon which to award the Department attorney's fees or costs under Section 57.105(1), Florida Statutes. See Rivera v. Deauville Hotel, Employer's Service Corp., Humana of Florida, Inc. v. McKaughan, Hooper v.

State Road Department, and Devin v. City of Hollywood, discussed supra.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that Petitioner's claim for attorney's fees and costs under Section 57.111, Florida Statutes, is denied.

It is further ORDERED that Respondent's claim for attorney's fees and costs under Section 57.105(1), Florida Statutes, is denied.

DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 Filed with the Clerk of the

Division of Administrative Hearings this 8th day of September, 1998.

ENDNOTES

1/ Petitioner only marked for identification and offered one exhibit (Petitioner's Exhibit 1).

2/ Respondent only marked for identification and offered four exhibits (Petitioner's Exhibits 1, 2, 3, and 10). No documents were ever identified as Petitioner's Exhibits 4 through 9.

3/ At the time the underlying proceeding was commenced, the Board of Chiropractic was established within the Agency for Health Care Administration, Division of Health Quality Assurance. Section 20.42, Florida Statutes (1995). Effective July 1, 1997, the Department of Health was created, with a Division of Medical Quality Assurance responsible for the Board of Chiropractic.

Section 20.43, Florida Statutes (Supp. 1996).

4/ To avoid the hearing scheduled before DOAH on December 17, 1997, the Department voluntarily dismissed its Administrative Complaint, without prejudice.

5/ Given the conclusion reached, it is unnecessary to address whether the Department's actions were substantially justified or whether special circumstances exist which would make an award unjust. Notwithstanding, given the parties agreement as reflected by the letter of December 19, 1997, it is observed that given such agreement an award of attorney's fees would be inappropriate.

There would, however, be no impediment to an award of costs.

6/ Petitioner also testified that he paid his attorney in this case $148, as expenses to pursue the application for attorney's fees and costs. Those expenses were not, however, itemized or otherwise identified and, consequently, it can not be resolved whether they were reasonable or necessarily incurred. More fundamentally, there is no authority or basis on which to award costs (or attorney's fees) in this case. See 57.111, Florida Statutes. Consequently, whether Dr. Frankl incurred costs (or attorney fees) in pursuing this case is not relevant, since they are not recoverable. See Florida Birth Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994).

7/ At hearing, and in his post-hearing submittal, Dr. Frankl also contended there was no waiver of his claim for attorney's fees because the dismissal was not with prejudice. This argument is rejected for two reasons. First, it was not raised by the pleadings. Second, while dismissal with prejudice was an initial demand of Dr. Frankl's counsel (letter of November 20, 1997) it was not, following the voluntary dismissal of the Administrative Complaint, without prejudice, an ultimate condition of

Dr. Frankl's waiver (letter of December 19, 1997).

8/ The Department offered testimony that, according to its records, its attorney (Thomas E. Wright, Esquire) had logged

14.1 hours on this matter up to the day of hearing, and Mr. Wright estimated an additional 1 hour would be logged for the day of hearing. In all the Department claimed 15.1 hours of attorney time defending Petitioner's claim; however, the Department offered no time records or any explanation of what tasks were performed by Mr. Wright to justify (except for the day of hearing) the time claimed. Given such failure, it must be concluded that, but for the 1 hour expended the day of hearing, the proof offered was insufficient to persuasively demonstrate that the 14.1 hours counsel expended was reasonable or necessary. See Florida Birth Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103, 1110 (Fla. 3d DCA 1994). The Department also offered proof that its cost for attorney salary and overhead for

Mr. Wright was $52.30 per hour. While such may be the case, that proof does not demonstrate that the fee claimed is the "market rate" or "fee customarily charged in the locality for similar legal sources," considering "the experience, reputation, and ability of the lawyer . . . performing [the] services." Florida Birth Related Neurological Injury Compensation Association v.

Carreras, supra, at page 1108. Consequently, the proof offered was not competent to support an award of attorney's fees.

9/ As noted in the Findings of Fact, Dr. Frankl also failed to demonstrate that any attorney's fees or costs he sought were reasonable and necessary, and the Department demonstrated that an award of attorney's fees (although not costs) would be unjust.

COPIES FURNISHED:

Thomas E. Wright, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Elizabeth Renee Alsobrook, Esquire Alsobrook and Dove, P.A.

Post Office Box 10426 Tallahassee, Florida 32312-2426

William Buckhalt, Executive Director Board of Dentistry

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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 agency 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: 98-002042F

Orders for Case No: 98-002042F