The Issue The central issue in this case is whether Petitioner is entitled to recover attorneys fees and costs.
Findings Of Fact Petitioner, B.R., is the sole proprietor of an adult congregate living facility known as Rona's Retirement Home located in Perrine, Dade County, Florida. Petitioner has a net worth less than two million dollars and employs one part-time worker at the six bed facility. At the time of hearing, Petitioner had four clients residing at the home for whom she provides room and board, snacks, and cleaning. Petitioner receives compensation from each at the rate of $575.00 per month. Petitioner hired her attorney of record and agreed to pay her $200.00 per hour to represent her in connection with the underlying case (DOAH case no. 92-1889C) and the present cause. Petitioner's attorney has been practicing since 1977 and has expended 38.4 hours representing Petitioner in these matters. Petitioner incurred $1,203.46 for costs in connection with Case no. 92- 1889C. The formal hearing in DOAH case no. 92-1889C was conducted by Hearing Officer Michael Parrish on December 15, 1992. During that formal hearing the Department presented testimony from one witness, the investigator, and offered one exhibit, the FPSS report at issue. The Petitioner testified at the formal hearing on her own behalf and presented the testimony of one lay witness and one expert witness, a physician. Two exhibits regarding care given to the alleged victim (S.T.) were introduced on behalf of Petitioner. Pertinent findings reached in DOAH case no. 92-1889C are: During the period of S.T.'s residence at Rona's Retirement Home, the Respondent was a caregiver for S.T. within the meaning of the definition at Section 415.102(4), Florida Statutes (1991). At the time of S.T.'s arrival at Rona's Retirement Home, his legs were swollen. S.T. had been transferred from the hospital to Rona's Retirement Home without any medical documentation or release papers. Upon inquiry by B.R., it was determined that S.T. was a diabetic. Arrangements were made by Rona's Retire- ment Home for a medical service to provide a nurse to administer insulin to S.T. on a daily basis. S.T. refused to allow the nurse to administer insulin to him during his stay at Rona's Retirement Home. S.T. was an uncooperative resident during his entire stay at Rona's Retirement Home. The retirement home specially prepared food for S.T. consistent with dietary guide- lines for diabetics. He refused to eat the specially prepared food and requested to be fed the same food as other residents. During his entire stay at Rona's Retirement Home, S.T. constantly made requests to go to the hospital. There was no medical basis for S.T.'s requests to go to the hospital. On August 29, 1991, Dr. Mark Caruso made his regular monthly visit to Rona's Retirement Home to examine the residents. On that day, Dr. Mark Caruso observed S.T. and asked B.R. if he should examine S.T. B.R. told Dr. Caruso that S.T. was a guardianship placement and that there was not, as yet, any approval by his guardian for any regular medical care. Dr. Caruso did not observe any indication that S.T. was in medical distress. On August 30, 1991, another resident at Rona's Retirement Home slipped and fell at the facility and an ambulance was called to transport that resident to the hospital. Upon arrival of the ambulance, S.T. asked one of the ambulance attendants to take him to the hospital. B.R. refused to allow S.T. to be taken to the hospital. As a result of a report of abuse or neglect, on the morning of August 30, 1991, Lourdes Paneda, a Protective Investigator with the Department of Health and Rehabilita- tive Services, visited Rona's Retirement Home where she interviewed S.T. At that time S.T. complained to Investigator Paneda of having chest pains. Investigator Paneda also observed that S.T. had swollen legs and that he seemed to be breathing heavily. Investigator Paneda was of the view that S.T. was suffering from medical distress, including the possibility of congestive heart failure. Accordingly, she contacted Dr. Mark Caruso and, following Investigator Paneda's description of her observations and concerns, Dr. Caruso said that if Investigator Paneda thought that S.T. was really sick, she should have him taken to Baptist Hospital. Investigator Paneda immediately called for rescue service. Shortly thereafter, the rescue service came and, for reasons not revealed in the record in this case, took S.T. to Deering Hospital. S.T. was seen and treated by emergency room physicians as soon as he got to the hospital. A few hours after his admis- sion to the hospital, S.T. was examined by Dr. Caruso. Based on his examination of S.T. and on the results of tests performed on S.T. at the hospital, Dr. Caruso was of the opinion that S.T. was not suffering from any acute medical distress. Dr. Caruso was also of the opinion that S.T. was not at any time in danger of death and that the conduct of B.R. did not place S.T. in danger of death or cause any harm to S.T. During the time S.T. was a resident at Rona's Retirement Home, B.R. exercised reasonable judgment in her care of S.T. All of her actions regarding the care of S.T. were reasonable. B.R. did not medically neglect S.T., nor did she neglect him in any other way. B.R. did not at any time put S.T. in any life-threatening situation. The final order entered by the Department adopted each of the foregoing findings without exception and accepted the Hearing Officer's recommendation that the FPSS report be classified as unfounded with the Petitioner's name being expunged from the registry. Petitioner was a prevailing party as defined in Section 57.111, Florida Statutes, in the underlying matter. The Respondent did not present any evidence in this cause to support allegations that an award of fees would be unjust or that the agency's actions were substantially justified. The Respondent presented no evidence. Moreover, the attorney representing the Department at the formal hearing in this case did not attend the hearing of nor investigate the Department's case in the underlying matter. No conflicting medical evidence was presented in the underlying case which required resolution. A reasonable attorney's fee for 38.4 hours in an administrative proceeding such as the instant case is $7,680.00.
Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
The Issue The issue is whether petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, John E. Phillips, Jr., that he is entitled to an award of attorney's fees and costs because of an administrative action improvidently brought against him by respondent, Department of Banking and Finance (DBF). When the complaint was filed, Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc. DBF contends the claim is without merit because Phillips is not a small business party within the meaning of the law, there is substantial justification to support the agency's decision to file a complaint, and special circumstances are present which would make an award of fees and costs unjust. The action which underlies this claim involved an administrative complaint filed against Phillips on February 4, 1994, charging him with violating various provisions within Chapter 517, Florida Statutes. That complaint was assigned Case No. 94-1266. The complaint also denied an application by Phillips to register as an associated person with a new firm. In addition, the complaint named Bruce M. Walker as a co-respondent, and as to that registrant, the complaint was assigned Case No. 94-1358. Both cases were consolidated for hearing and, after an evidentiary hearing was conducted on June 27, 1994, a Recommended Order was issued on September 13, 1994, recommending that all charges against Phillips be dismissed and that his application for registration be approved. The Recommended Order was adopted by DBF without change, and Phillips is accordingly deemed to be a prevailing party in that action. Phillips has requested fees and costs in the amount of $15,000.00, the maximum allowed by law. Respondent does not contest the reasonableness of that amount. Prima Facie Requirements for an Award of Fees and Costs In order to show entitlement to an award of fees and costs, petitioner must demonstrate that he is a "prevailing small business party" within the meaning of the law. Since he has filed the petition on his own behalf, he must show he is 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 the state agency, not more than 25 full-time employees or a net worth of not more than $2 million. At the time the administrative complaint was filed, Phillips was domiciled in Pensacola, Florida, and had a net worth of less than $2 million. According to an uncontroverted allegation in his petition, Phillips had no "employees relating to business that formed the basis for the Agency's charges." Petitioner was also a 50 percent shareholder in a subchapter S corporation known as Phillips, Walker & Associates, Inc. (PWA), a Pensacola firm engaged in the sale of insurance products. Although Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc., that firm was not the subject of the complaint nor is it otherwise relevant to this dispute. Petitioner's principal source of income was through the sale of insurance products sold through PWA although he occasionally sold a few securities during that same period of time. The administrative complaint was not filed against PWA, which held no licenses from the state, but rather was filed against the registration of Phillips as an individual. Although he was an officer, employee and shareholder of PWA, Phillips was not a sole proprietor of an unincorporated business, including a professional practice. Therefore, he does not qualify as a small business party. Was There Substantial Justification? The consumer complaint which eventually led to the filing of the charges in Case No. 94-1266 was made by Jane Hubbard, a Gulf Breeze realtor who had loaned a substantial amount of money ($50,000.00) to PWA in May 1988 and was never repaid. The loan was secured by a promissory note personally signed by Phillips and Walker, as the owners of the corporation. After PWA ceased doing business in May 1990, and both Phillips and Walker had filed for bankruptcy, Hubbard, or her attorney, contacted DBF in an effort to seek DBF's aid in collecting her money from Phillips and Walker. Since petitioner was registered with DBF as an associated person, and thus was subject to DBF's regulatory jurisdiction, Hubbard apparently assumed that Phillips may have violated the law in some respect, and the agency might be able to assist her in recovering all or a part of her money. A similar complaint filed with the Department of Insurance was not pursued by that agency. Hubbard's complaint was eventually referred to a DBF financial examiner, Robert R. Kynoch, who, among other things, interviewed Phillips, Walker, Hubbard, and three other persons who had made loans to Walker (but not Phillips). Although Kynoch did not place the persons interviewed under oath during the investigative stage, there was no requirement that he do so. Based on a representation by Hubbard that Phillips and Walker had failed to disclose to her all relevant information regarding PWA's financial status at the time the loan was made, Kynoch concluded that a reasonable basis existed to bring charges against the two if the loan was actually an investment, and thus subject to DBF's jurisdiction under Chapter 517, Florida Statutes. Accordingly, Kynoch prepared a written investigative report, received in evidence as respondent's exhibit 3, which recommended that the report "be further reviewed for appropriate disposition." The report was first reviewed by Michael D. Blaker, a DBF area financial manager, who approved the recommendation and forwarded it to his supervisor, Richard White. It was then reviewed and approved by a bureau chief, William Reilly, and finally by the division director, Don Saxon. After Saxon signed off on the report, it was sent to the general counsel's office for a legal determination as to whether the loan was an investment. Margaret S. Karniewicz, an assistant general counsel, concluded that it was, and recommended the issuance of an administrative complaint. After an evidentiary hearing was conducted, a determination was made that the loan constituted an investment. This determination in the Recommended and Final Orders was not contested by any party, including Phillips. There was, however, insufficient evidence to establish that misrepresentations were made by Phillips during the sale of the investment. For this reason, the charges against Phillips were dismissed and his application for registration with a new firm was approved. Because DBF had statements, which it assessed to be credible, from a complaining witness (Hubbard) that misrepresentations or material omissions were made by Phillips and Walker during the transaction, and DBF properly construed the transaction as an investment, it had a reasonable basis in fact and law to file the complaint. Since there was no showing that the agency's credibility assessment was unreasonable, DBF was substantially justified in bringing the charges in Case No. 94-1266. Special Circumstances There was no evidence presented by respondent to show that special circumstances exist that would make an award of attorney's fees and costs unjust.
The Issue Whether Petitioner should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act (the Act), Section 57.111, Florida Statutes.
Findings Of Fact These proceedings arise out of DOAH Case No. 01-2928, Department of Health, Board of Physical Therapy v. Raymond H. Cralle. There, a Recommended Order was entered on November 27, 2001, which recommended entry of a final order dismissing all charges against Petitioner. On February 8, 2002, Respondent filed with the Division of Administrative Hearings a final order of dismissal in that case. Petitioner, the prevailing small business party within the meaning of Section 57.111, Florida Statutes, timely filed his request for fees and costs pursuant to the Act. Respondent does not dispute the reasonableness of the attorney's fees claimed in the total amount of $10,050.00, nor does it dispute that costs in the amount of $2,655.95 were incurred by Cralle in the underlying case. The entire record in this case, which includes a transcript of the probable cause hearing, considered in light of the entire record in Case No. 01-2928, establishes that the total amount of fees and costs claimed here were necessarily and reasonably incurred in the successful defense of the administrative charges. In opposition to Cralle's request for reimbursement pursuant to the provisions of the Act, Respondent argues that the case falls within an exception for proceedings which were "substantially justified" at the time the charges were brought. The crux of Respondent's argument is that "[the] Administrative Law Judge decided the case primarily on the basis that, in her belief, based on the demeanor of the complainant, [Respondent] was more credible than the complainant." Respondent's argument requires that material facts be ignored. In the underlying case, Respondent had the burden to prove the administrative charges by clear and convincing evidence. Yet its factual case was based exclusively upon the testimony of Helen Mesa (Mesa). Mesa's demeanor was just one of several things noted in the Recommended Order which cast doubt upon her credibility. At the time of the probable cause hearing, it was known, or at least knowable, that Mesa fit the profile of the stereotypical "disgruntled former employee." At least a half dozen witnesses could have been expected to corroborate Mesa's testimony, and at the probable cause stage of the proceedings, Respondent's own expert recommended that at least some of these individuals be found and interviewed. With this red flag flying, and Cralle's attorney protesting that Mesa's story should be corroborated in some fashion before the litigation process was set in motion, Respondent elected to proceed on a needlessly thin investigation.
The Issue Whether Petitioner, Dr. Herbert R. Slavin, is entitled to an award of attorney's fees and costs in an amount not exceeding $50,000 pursuant to section 57.111, Florida Statutes (2011).
Findings Of Fact Dr. Slavin, a licensed physician who specializes in internal medicine, has practiced in the state of Florida since 1981. In or around 2008, Dr. Slavin formed, and is the sole shareholder of, "Ageless Medicine Associates," a subchapter S corporation1/ under which he practices medicine. On October 31, 2011, the Department filed an Administrative Complaint that charged Dr. Slavin with two statutory violations, both of which were ultimately dismissed by the Board of Medicine. In connection with that proceeding, Dr. Slavin now seeks an award of attorney's fees and costs pursuant to section 57.111. As explained later in this Final Order, a party seeking fees and costs pursuant to section 57.111 must demonstrate that he or she was a "small business party" at the time the underlying action was initiated by the state——in this instance, October 31, 2011. Section 57.111(3)(d) contemplates that a small business party can take four alternative forms, only two of which require discussion here: a partnership or corporation, including a professional practice, that, during the relevant timeframe, had 25 or fewer full-time employees or a net worth of not more than $2,000,000 (section 57.111(3)(d)1.b.); or an individual whose net worth did not exceed $2,000,000 during the relevant period (section 57.111(3)(d)1.c.). The evidence establishes that, as of October 2011, Ageless Medicine Associates had fewer than 25 employees and a net worth that did not exceed $2,000,000. The problem, though, and as discussed elsewhere in this Order, is that section 57.111(3)(d)1.b. has no application where, as in this case, the underlying complaint was filed against a licensee individually, rather than the partnership or corporation under which the licensee conducts business. As for Dr. Slavin's personal finances, his 2011 tax return reflects income of $171,810, virtually all of which comprises wages and business income derived from Ageless Medicine Associates, and an adjusted gross income of $161,400. The remainder of Dr. Slavin's financial picture (including, for example, any assets on hand that did not generate taxable income) during October 2011 is nebulous, however, for nearly all of his testimony focused incorrectly on his finances at the time of the final hearing: Q. Are you, doctor, currently worth $2,000,000? A. No. * * * Q. Dr. Slavin, do you own a home? A. Yes. Q. How much, if you know, is that home worth? A. Probably around $300,000 to $350,000. Q. And do you have a mortgage on that home? A. Yes. Q. How much is the mortgage; do you know? A. $145,000. Q. And do you have any cash in the bank? A. Yes. Q. How much? A. Around $10,000 . . . . * * * Q. Do you own any boats? A. No. Q. Do you own any vacation homes? A. No. Q. Do you own any interest in any other businesses? A. No. Q. Do you have a lot of stock accounts? A. No. * * * Q. Okay. Is there any other asset that you have that has not been mentioned; your home, your business? Do you own your vehicles? A. No, they're leased. Q. Do you own any other stocks or bonds that provide you with an income or that are worth money, that you know of? A. No. * * * Q. Dr. Slavin, you testified that -- You were asked by counsel whether or not you had a lot of stocks or bonds as assets and you stated no. Do you -- what does a lot mean? A. Well, I have -- I don't have any direct ownership of stocks or bonds. There are some annuities I have that have, I guess, investments and mutual funds or something. You know, I'm not -– * * * Q. Dr. Slavin, have you presented any information or any documentation as to what items are within your home? A. Not that I'm aware of. I have a television, -- Q. Do you have -- A. -- a refrigerator and -- Q. Do you have furniture in your home? A. Yeah. I have furniture, a refrigerator, stove, microwave. I have -- Q. Do you have computer equipment in your home? A. I have laptop computers in the home. Q. Do you have any personal items; jewelry, watches in your home? A. I have -– Yes, I have watches. Final Hearing Transcript, pp. 23; 25-28; 30-31 (emphasis added). Even assuming, arguendo, that Dr. Slavin's testimony had been properly oriented to the relevant time period (which it was not, in nearly all instances), his overall evidentiary presentation was simply too fragmentary to permit the undersigned to independently determine the value of his net worth——a figure derived2/ by subtracting total liabilities from total assets. For example, Dr. Slavin provided: no information concerning his annuities and mutual funds, the value of which could be non- trivial due to the remunerative nature his profession and his length of time in practice; no details regarding the value of his household assets; and no credible evidence regarding the value of his home.3/ In light of these gaping holes in the evidence, which preclude anything more than rank speculation concerning the value of Dr. Slavin's personal net worth, it is determined that status as a small business party has not been proven.4/ Because Dr. Slavin's failure to establish his status as a small business party is fatal to his application for attorney's fees, it is unnecessary to determine whether the underlying proceeding was substantially justified.
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
Findings Of Fact Petitioner V.S. is the managing director of Source of Light and Development, Inc., a non-profit corporation which operates "Hope House", a licensed emergency shelter home. The license is issued jointly to V.S. and to Hope House. There is no evidence that the Petitioner is the sole owner of the facility or the corporation. The evidence establishes that the shelter could continue to operate under the direction of another individual if V.S. were no longer responsible for the facility. At some point in 1991, Respondent Department of Health and Rehabilitative Services ("DHRS") received a report alleging that V.S. had been driving under the influence while a resident of Hope House was in the vehicle. Although the record is unclear as to what information was available to the agency at that time, (the Hope House resident allegedly in the vehicle operated by V.S. refused to offer a statement) the DHRS classified the report as proposed confirmed and advised V.S. that she could request that the classification be reviewed. On July 19, 1991, V.S. requested that a proposed confirmed report of abuse or neglect be expunged or amended. Thereafter, the matter was assigned to Michael J. Hally, an expunction analyst for the agency. Mr. Hally initially reviewed the statements of three law enforcement personnel taken at the time of the event. The law enforcement officials were apparently responding to a reported altercation at the Hope House. Hally then spoke to the law enforcement personnel who provided confirmation of their prior reports. Hally subsequently discussed the matter with the resident who essentially stated that V.S. had consumed alcohol and become intoxicated while operating a car in which the resident was riding. During this period of time, V.S., through legal counsel, attempted to identify and provide to Mr. Hally a number of persons who could provide exculpatory information on V.S.'s behalf. Mr. Hally interviewed the persons identified by counsel. Based upon the information available, the DHRS determined the report to be correctly classified. On August 20, 1991, the DHRS informed V.S. that her expunction request was denied and notified her of the right to challenge the agency's determination through the formal administrative hearing process. On September 25, 1991, V.S. requested a formal hearing to challenge the agency's refusal to expunge or amend the report. The case was forwarded to the Division of Administrative Hearings which scheduled the matter for hearing. In preparation for formal hearing, the deposition of the resident was taken. Subsequently, the DHRS determined that the credibility of her testimony would be subject to attack. Based on the resident's lack of credibility, the DHRS, on February 4, 1992, filed a notice of voluntary dismissal of the case.
The Issue 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."
Findings Of Fact Findings relating to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes. At all times material hereto, Petitioner, Mounir Albert, D.D.S. (Dr. Albert), was licensed to practice dentistry in the State of Florida, having been issued license number DN 0010217. On September 2, 1997, the Department issued an Administrative Complaint against Dr. Albert (Agency Case Number 95-12645). The complaint charged that Dr. Albert was subject to disciplinary action under the provision of Subsection 466.028(1)(aa), Florida Statutes (1995), for having violated Subsection 455.241(1), Florida Statutes, by having failed, upon request, to furnish a patient in a timely manner, without delays for legal review, copies of all reports and records relating to the patient's examination or treatment, including x-rays and insurance information. For such violation, the Department proposed that one or more of the following penalties be imposed: . . . revocation or suspension of . . . [Dr. Albert's] license, restriction of . . . [Dr. Albert's] practice, imposition of an administrative fine, issuance of a reprimand, placement of . . . [Dr. Albert] on probation, and/or any other relief that the Board deems appropriate. Dr. Albert disputed the allegations of fact contained in the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct a formal hearing. The matter was assigned DOAH Case No. 97-5001, and a hearing was duly held on February 5, 1998. On March 9, 1998, a Recommended Order was rendered, which concluded that, while Dr. Albert failed to furnish the patient records on request, the Administrative Complaint should be dismissed. Central to such conclusion was the finding that: . . . while subsection 455.241(1) obligates the health care provider to provide, upon request, copies of a patient's medical records, subsection 455.241(4) also authorizes the health care provider to charge, for such service, the cost of duplication. Reading the provisions in pari materi, it is reasonable to conclude that, absent payment of the cost of duplication, a health care provider is under no obligation to provide a patient with copies of his records. Since the patient failed to pay Dr. Albert for the cost of duplication, as requested, it was resolved that Dr. Albert had not violated Subsection 455.241(1) as alleged in the Administrative Complaint. On June 9, 1998, the Board of Dentistry entered a Final Order in the underlying case. The Final Order approved and adopted the Findings of Fact and Conclusions of Law set forth in the Recommended Order, and dismissed the Administrative Complaint. Judicial review of the Final Order was not sought, and Petitioner timely filed the subject petition for attorney's fees and costs pursuant to Section 57.111, Florida Statutes. Findings relating to the claim for attorney's fees and costs Pertinent to Dr. Albert's claim for attorney's fees and costs, the Department has conceded that the underlying action was initiated by the Department, that Dr. Albert prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed.1 The Department has, however, denied that Dr. Albert was a "small business party" and, therefore, a "prevailing small business party," as those terms are defined by Section 57.111, Florida Statutes, and has affirmatively averred that its actions were "substantially justified." Given the circumstances, an award of reasonable attorney's fees and costs would be appropriate provided Dr. Albert can establish, by a preponderance of the evidence, that he was a "prevailing small business party" in the underlying proceeding and, if so, the Department fails to establish that its actions were "substantially justified." Addressing first Dr. Albert's status, it must be concluded that the proof fails to support the conclusion that at the time the underlying proceeding was initiated, or at any other time material hereto, Dr. Albert (the party to the underlying proceeding) was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes, and, consequently, the proof fails to support the conclusion that he was a "prevailing small business party," as required for compensation under the Florida Equal Access to Justice Act. See Section 57.111(4)(a), Florida Statutes. In so concluding, it is observed that the proof demonstrates that, at all times material, Dr. Albert practiced dentistry as an employee of a professional service corporation, Mounir Albert, D.D.S., P.A. (the corporation or business), as authorized by Chapter 621, Florida Statutes, and was not shown to be the sole proprietor of, or operate his dental practice or any other enterprise, as an unincorporated business. Having resolved that Dr. Albert was not shown to be a "prevailing small business party," and was, therefore, not eligible for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, it is not necessary to address whether the Department's actions were "substantially justified," when the underlying proceeding was initiated.
