STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUARDIAN CARE, INC., d/b/a GUARDIAN CARE NURSING & REHABILITATION CENTER,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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) Case No. 03-2929F

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FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this proceeding on September 18, 2003, in St. Petersburg, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: J. Lynn Schlossberg, Esquire

The Health Law Firm

220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701

For Respondent: Gerald L. Pickett, Esquire

Agency for Health Care Administration Sebring Building, Suite 330K

525 Mirror Lake Drive, North St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

The issues for determination are whether Petitioner is entitled to recover attorney's fees and costs (fees and costs)

pursuant to Section 57.105, Florida Statute (2003) and Section 120.595, Florida Statutes (2002), and, if so, what amount of an

award is reasonable.

PRELIMINARY STATEMENT

On August 11, 2003, Petitioner filed a Motion to Determine Entitlement to Attorney's Fees and Costs (Motion for Fees and Costs). At the administrative hearing, Petitioner presented the testimony of one witness, and submitted two exhibits for admission into evidence. Respondent called no witnesses, and submitted no exhibits for admission into evidence.

A court reporter recorded the identity of the witnesses and exhibits and any rulings regarding each. The parties ordered a transcript.

The ALJ required the parties to file their proposed final orders (PFOs) within ten days from the date that the court reporter filed the transcript with DOAH. The parties have requested several extensions of time to file a transcript, but have been unable to locate the court reporter or to obtain a transcript. Pursuant to the agreement of the parties, Petitioner and Respondent timely filed their respective PFOs on April 12 and 13, 2004.

FINDINGS OF FACT

1. The case of Agency for Health Care Administration v.

   
   

   Guardian Care, Inc., d/b/a Guardian Care Nursing, Case

   No. 02-4269 (DOAH June 5, 2003)(the underlying case) arose from allegations by the Agency for Health Care Administration (Agency) that Guardian Care, Inc. (Guardian), maintained insufficient staffing for a 120-bed nursing home that Guardian operates in Orlando, Florida (the facility). The ALJ found that the Agency failed to prove any of the allegations against Guardian and, on June 5, 2003, recommended that the Agency dismiss the Administrative Complaint. On October 21, 2003, the agency adopted the Recommended Order in the underlying proceeding with no changes.

2. Prior to June 4, 2003, Section 57.105, Florida Statutes (2002), was limited to civil proceedings in state courts. Effective June 4, 2003, the legislature expanded the statute to include administrative proceedings.

3. Subsection 57.105(5), Florida Statutes (2003), authorizes an ALJ to award reasonable fees to the prevailing party on the same basis as that provided in Subsections 57.105(1) through (4), Florida Statutes. In relevant part, Subsection 57.105(1), Florida Statutes (2003), authorizes fees and costs when the losing party knew or should have known its claim was not supported by material facts at the time the losing party initially presented the claim.

4. The Agency was the losing party in the underlying case.

   
   

   The Agency initially presented its claim against Guardian,

   within the meaning of Subsection 57.105(1), Florida Statutes (2003), when the agency filed the Administrative Complaint in the underlying case on September 27, 2002.

5. Petitioner failed to show in the instant proceeding that the Agency knew or should have known, prior to filing the Administrative Complaint in the underlying case, that the Agency's claim was not supported by material facts necessary to support the claim. Findings in the underlying case show that the Agency based the Administrative Complaint, in relevant part, on documents provided by Guardian.

6. A four-member survey team for the agency conducted an annual survey of the facility from April 8 through 11, 2002. Administrators of the facility initially provided the survey team with documents, indicating the facility failed on 12 days, during a 14-day period from March 17 through 30, 2002 (the relevant period), to maintain minimum staffing requirements for licensed nurses equal to one hour of direct care per patient per resident day (minimum staffing requirements).

7. During and after the survey, facility administrators provided additional documents to the agency in an attempt to explain the apparent under-staffing. The additional documents indicate the facility failed to maintain minimum staffing requirements for five days during the relevant period. The

   Agency ignored the inconsistent documents provided by facility administrators and filed the Administrative Complaint.

8. Prior to the hearing, counsel for Guardian attempted to resolve the matter through letters and verbal communications suggesting that the facility complied with minimum staffing requirements. The Agency disregarded counsel's documentation and participated in the administrative hearing.

9. At the hearing, the preponderance of evidence, including testimony from two experts, showed that Guardian complied with minimum staffing requirements at the facility. However, each of Guardian's experts agreed during cross- examination that she would have cited the facility for failing to meet minimum staffing requirements based on the information available to the Agency at the time.

10. The evidence submitted by Guardian at the administrative hearing clearly showed that Guardian complied with minimum staffing requirements during the relevant period. Faced with that evidence, the Agency did not dismiss its action against Guardian at the conclusion of the administrative hearing, but participated in the proceeding through a Final Order without affecting the outcome of the proceeding.

11. No finding is made in this Order that the Agency is a nonprevailing adverse party that participated in the underlying case for an improper purpose within the meaning of

    Subsections 120.595(1)(e)1 and 3, Florida Statutes (2002). Section 120.595, Florida Statutes (2002), does not authorize the ALJ to decide issues pertaining to fees and costs in a final order, including this Final Order. A Recommended Order issued simultaneously with this Final Order addresses that part of the Motion for Fees and Costs that is based on Section 120.595, Florida Statutes (2002).

    CONCLUSIONS OF LAW

    
    

12. DOAH does not have jurisdiction over the subject matter of this proceeding. The Agency filed its Administrative Complaint on September 27, 2002; a little more than eight months before June 4, 2003, when Section 57.105, Florida Statutes (2003), authorized fees and costs in administrative proceedings. The statutory amendments on June 4, 2003, substantively changed the statute by creating rights to fees under circumstances not authorized in Section 57.105, Florida Statutes (2002).

    Section 57.105, Florida Statutes (2003), does not apply retroactively to September 27, 2002, when the Agency filed the Administrative Complaint in the underlying case. See Mullins v. Kennelly, 847 So. 2d 1151, 1153-1154 (Fla. 5th DCA 2003)

    (amendments to Section 57.105, Florida Statutes (1999), that became effective on October 1, 1999, did not apply retroactively to May 1999, when plaintiff filed complaint for damages).

13. If it were determined that DOAH had jurisdiction in this proceeding, Petitioner is not entitled to fees and costs. For reasons stated in the Findings of Fact, Petitioner failed to show that the Agency knew or should have known, when the Agency filed the Administrative Complaint in the underlying proceeding, that the Agency's claim was not supported by material facts necessary to support the claim.

ORDER

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

ORDERED that the portion of the Motion for Fees and Costs that is based on Section 57.105, Florida Statutes (2003), is dismissed for lack of jurisdiction, or in the alternative, is denied. A Recommended Order, issued simultaneously with this Final Order, addresses that part of the Motion for Fees and Costs that is based on Section 120.595, Florida Statutes (2002).

DONE AND ORDERED this 30th day of April, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2004.

COPIES FURNISHED:

George F. Indest, III, Esquire The Health Law Firm

Center Pointe Two

220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701

J. Lynn Schlossberg, Esquire The Health Law Firm

220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701

Gerald L. Pickett, Esquire

Agency for Health Care Administration Sebring Building, Suite 330K

525 Mirror Lake Drive, North St. Petersburg, Florida 33701

Lealand McCharen, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116

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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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: 03-002929F

Orders for Case No: 03-002929F