Findings Of Fact Vause is in partnership with his brother and has a principal office at 100 Hamilton Avenue, Panama City, Florida. Vause's business has two full-time employees and has a net worth of less than $100,000.00. In DOAH Case No. 88-5988, Vause applied for a special activity license to use mechanical harvesting devices on his oyster leases. DNR denied the application by "Final Order" dated October 17, 1988, and this "Final Order" provided the clear point of entry. Vause availed himself of this point of entry and requested a formal hearing. After a formal hearing, a Recommended Order was entered on March 13, 1989, wherein it was concluded that the application was valid and adequate and that Vause had met all conditions precedent to be entitled to the permit sought. DNR had denied the permit based on legally insufficient and incorrect grounds and authority. Vause has incurred attorney's fees at the rate of $125.00 per hour. A total of 19.20 hours were expended by Vause's attorney in the underlying proceeding and in this proceeding. The number of hours is reasonable and they were necessary. The hourly rate is reasonable. Hence, Vause has incurred $2400.00 in fees.
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 Whether Petitioner is entitled to an exemption from disqualification.
Findings Of Fact Petitioner, Anthony Bellamy, is the husband of, and resides with, his wife, Helena Bellamy. Helena Bellamy applied to Respondent, Department of Children and Family Services, for registration of a family day care home in the couple's home in Lynn Haven, Florida. In order for the family day care to be registered with the Department, Mr. Bellamy must satisfy the screening requirements set forth in Chapter 435, Florida Statutes, because he is a member of Ms. Bellamy's family. In 1995, Mr. Bellamy was a full-time student in Chipola Community College in Marianna, Florida. Mr. Bellamy, who was born and raised in humble circumstances, met a group of individuals who seemed to have all they needed without having to work for it. Mr. Bellamy started associating with this group whose income, it turned out, was derived from the sale of illegal drugs. Mr. Bellamy, envious of the monied lifestyle of his newfound associates, adopted their ways and started selling marijuana and cocaine to his friends. Mr. Bellamy's favorite place of business was a stand of trees on his father's property, which is, coincidentally, near a public school in Cottondale, Florida. However, Mr. Bellamy did not sell drugs to any of the school children. Mr. Bellamy usually timed his sales to coincide with the paydays of his customers so as to enhance his sales. This usually occurred two or three times per month. Mr. Bellamy did not use drugs himself. On January 11, 16, and 25, and March 6 of 1996, an undercover police officer made purchases of cocaine from Mr. Bellamy. On the occasion of his arrest on March 6, 1996, 55 packets of marijuana and approximately 83 pieces of crack cocaine were found with Mr. Bellamy. Mr. Bellamy pled nolo contendere to four counts of sale of cocaine within 1,000 feet of a school, one count each of possession of cocaine with intent to sell within 1,000 feet of a school, and possession of cannabis with intent to sell within 1,000 feet of a school. Mr. Bellamy was adjudicated guilty of these offenses and sentenced to 22 months of jail time and 10 years of probation. Mr. Bellamy is still on probation for these offenses. He anticipates that he will remain on probation until 2005 or 2006. Although Mr. Bellamy has not re-offended, he concedes that the fear of re-incarceration if he violates his probation is one factor in his recent good behavior. However, his main reasons for no longer selling drugs is that his incarceration taught him a lesson and that he did not wish to be that type of person or live that type of life, especially since he has married and had children. Incarceration, for Mr. Bellamy, was an epiphany, not to be repeated again. During his incarceration, Mr. Bellamy was placed on trustee status and permitted to attend Chipola Community College. He completed his degree in electrical engineering and holds a state license for professional engineering. Importantly, Mr. Bellamy passed the character evaluation to become a licensed professional engineer. After getting out of prison, Mr. Bellamy worked for Southern Bell as an electrical engineer. Southern Bell had full knowledge of Mr. Bellamy's criminal history when it employed him. He was and is considered a diligent and productive employee. Mr. Bellamy now has formed his own company and performs electrical engineering services on a contract basis for Southern Bell. Mr. Bellamy also works part-time at Tropical Smoothie. He is entrusted to handle the money from that business. In 1999, Mr. Bellamy married his wife. They now have three children and he is very much a family man who wants to do right by that family. He has the determination and enthusiasm to succeed in his chosen work and life. Mr. Bellamy is active in his church and counsels the youth in that church to avoid drugs. He utilizes his experience to emphasize his counseling. There was no evidence that Mr. Bellamy was ever a danger to children or the disabled. Mr. Bellamy has shown that he is not the same person who dealt drugs and has changed his life for the better. He is entitled to an exemption from disqualification.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner Antonio Bellamy an exemption from disqualification. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 26th day of June, 2002. COPIES FURNISHED: Antonio Bellamy 604 Hummingbird Street Lynn Haven, Florida 32444 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
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.
The Issue Whether Respondent, Malcom Thompson, as Clerk of the Court for Osceola County, Florida, violated section 112.313(6), Florida Statutes (2011),1/ by using his position to intimidate Osceola County Clerk of the Court employees in order to enhance his personal and political power and, if so, the appropriate penalty.
Findings Of Fact At all times relevant to this case, Mr. Thompson was the Clerk of the Court for Osceola County, Florida. On December 29, 2011, Mr. Thompson was working in his office with his administrative assistants Ms. Ramdani and Ms. Lay. It was the day before the New Year's holiday, and Mr. Thompson directed Ms. Ramdani to remove Christmas cards that were on display. Ms. Ramdani told Mr. Thompson that she wanted to keep the Christmas cards up until after the holidays. Mr. Thompson became agitated with her, and he placed his open hand on Ms. Ramdani's shoulder and pushed her into a door. Ms. Ramdani did not receive any physical injury from Mr. Thompson's action, but she became angry and started complaining that he had pushed her. In response, Mr. Thompson said that he did not push her, and that he apologized. After this exchange, Mr. Thompson decided to leave Ms. Ramdani alone. Ms. Lay, who was working in the office, witnessed the incident. On January 4, 2012, after returning from the New Year's Day holiday, Ms. Lay told Ms. Hennecy, the Deputy Clerk of the Court, about Mr. Thompson pushing Ms. Ramdani, and how upset Ms. Ramdani had been about the incident. Ms. Hennecy thought the allegation was serious and contacted the Clerk's Human Relations (H.R.) Director, Ms. Zander. Based on Ms. Hennecy's report, Ms. Zander began an investigation. She interviewed Ms. Ramdani and corroborated the allegation that Mr. Thompson had pushed her. During the interview, Ms. Ramdani told Ms. Zander that she was afraid of Mr. Thompson. There is no evidence that Ms. Ramdani filed a written complaint against Mr. Thompson based on the December 29, 2011, incident. However, it was Ms. Zander's opinion that Ms. Ramdani made a verbal complaint to H.R. Ms. Zander then interviewed Mr. Thompson, and he stated that "he did it again." He explained that he had been joking around with Ms. Ramdani, and that she had gotten mad with him. Mr. Thompson then told Ms. Zander to interview Ms. Lay, and that she would corroborate his story. Ms. Zander interviewed Ms. Lay, who corroborated that Mr. Thompson had pushed Ms. Ramdani, but disputed that it had been unintentional or a joke. It was Ms. Lay's impression that Mr. Thompson had pushed Ms. Ramdani in anger. Ms. Zander, in a lack of candor, told Mr. Thompson that Ms. Lay had confirmed aspects of his story, neglecting to tell him the key difference. Based on H.R.'s standard practice of separating employees who may have a conflict, Ms. Zander determined that it was best to move Ms. Ramdani's work space from Mr. Thompson's office on the sixth floor of the courthouse to the H.R. department located on the second floor. Ms. Zander made this recommendation to Ms. Hennecy and Mr. Thompson on January 4, 2012. Mr. Thompson agreed that Ms. Ramdani could be moved if it was her choice. Initially, on January 4, Ms. Ramdani informed Ms. Zander that she did not want to relocate her office. However, the next day Ms. Zander informed Ms. Ramdani that her work space was being moved to the second floor from Mr. Thompson's office based on safety concerns. On January 5, 2012, Mr. Thompson learned that Ms. Ramdani was being relocated to the second floor. He told Ms. Zander and Ms. Hennecy that Ms. Ramdani was to be treated like any other employee, and not given any privileges. Apparently, Mr. Thompson allowed Ms. Ramdani more leeway in his office suite than other employees, such as telephone privileges, extended breaks, religious holidays, and leaving work early, if she worked through lunch. Further, Ms. Ramdani was to be under Ms. Zander's supervision, and written up if she did not follow the rules. Mr. Thompson restated his position to Ms. Zander that the whole incident was being blown out of proportion. Generally, whenever there is an allegation of a conflict between employees, Ms. Zander, as H.R. director, would conduct an investigation and offer a resolution to the conflict. However, Ms. Zander credibly testified that she did not feel comfortable with investigating the allegation that Mr. Thompson had pushed Ms. Ramdani because he was "my boss." Some time during the beginning of her investigation, Ms. Zander decided to speak with Captain Toomey, an Osecola County Sheriff's officer, who worked in the courthouse. Ms. Zander asked Captain Toomey whether she had a duty to report the incident. Captain Toomey asked for more details and initially said that the victim, Ms. Ramdani, had to come forward. Later, Captain Toomey called and indicated that he had a responsibility to report the incident. Mr. Thompson went on scheduled annual leave for the week of January 9 through 13, 2012. Some time on January 9, 2012, the Florida Department of Law Enforcement (FDLE) sent an officer to investigate the allegation that Mr. Thompson had pushed Ms. Ramdani. The officer interviewed Ms. Ramdani and other Clerk of the Court employees concerning the incident and informed them that the on-going investigation was confidential and that the employees were not to discuss the matter. Ms. Zander shared with Ms. Hennecy that the FDLE investigation was on-going, and that it was confidential. Ms. Ramdani told the FDLE officer what happened and stated that she did not want to pursue any criminal charges against Mr. Thompson. Ms. Ramdani credibly testified that she did not want to pursue any action for religious reasons, and based on her fear of embarrassment to her family and being in the news. The FDLE officer informed Ms. Zander that Ms. Ramdani did not want to pursue any criminal charges against Mr. Thompson. On January 9, 2012, at the end of the day, Ms. Hennecy called Mr. Thompson to give him an update on the office. One item of interest reported concerned a call Ms. Hennecy had received from Gary Ketchum, the spouse of one of Mr. Thompson's political opponents. Mr. Ketchum had called to confirm an allegation that Mr. Thompson has pushed an employee and had used a derogatory slur against the employee. Mr. Thompson became very upset when he heard about Ketchum's call. Not surprisingly, Mr. Thompson cut his vacation short and returned to the office bright and early the next day, January 10, 2012. It was Mr. Thompson's intention to meet with Ms. Ramdani and "smooth things over." As Ms. Ramdani was parking her car, Mr. Thompson called her cell phone and said that he wanted to speak with her. Ms. Ramdani told Mr. Thompson that she did not want to speak with him, and then she noticed his car pulling into the courthouse parking lot. Ms. Ramdani was surprised and worried to see Mr. Thompson driving into the parking lot because he was supposed to be on vacation. Ms. Ramdani parked her car and proceeded into the courthouse. Mr. Thompson parked his car and entered the building in a side entrance. That morning, Ms. Cubero was the first person to arrive for work in the H.R. department. As she opened the door and turned on the lights, she was startled to see Mr. Thompson standing in the office. She was surprised because Mr. Thompson was supposed to have been on vacation. Mr. Thompson asked to see Ms. Zander, but was told that she had not yet arrived. Within a minute or so, Ms. Ramdani arrived at the second floor office. Mr. Thompson, again, asked Ms. Ramdani to come upstairs and speak with him. Ms. Ramdani initially declined his invitation, but then changed her mind after Mr. Thompson gave assurances that everything would be fine. While Mr. Thompson and Ms. Ramdani left the second floor, Ms. Cubero sent Ms. Zander a text message that Mr. Thompson was looking for her and that he had taken Ms. Ramdani upstairs for a meeting. Ms. Zander, who had just pulled into the parking lot, decided she needed to interrupt the meeting between Mr. Thompson and Ms. Ramdani. Ms. Zander credibly testified that she was worried about Ms. Ramdani's safety. At first, Ms. Zander attempted to find a male employee or Captain Toomey to accompany her to the meeting on the sixth floor because she was afraid. Ms. Zander explained that she wanted to find a male to go with her because Mr. Thompson had a "temper" and that he was a large man. Because Ms. Zander was unable to find the male employee, and Captain Toomey would not go with her, Ms. Zander took two H.R. employees with her to the meeting, Ms. Cubero and Ms. Benoit. Ms. Ramdani and Mr. Thompson rode separate elevators up to the sixth floor. On entering the office suite, Ms. Ramdani told Mr. Thompson that she did not want to meet with him in his conference room, so they sat in Ms. Lay's work area. Ms. Lay was already working at her desk. Ms. Lay credibly testified that Mr. Thompson was agitated, appeared angry, and indicated that he was going to "get to the bottom of things," and going to identify who "leaked" the December 29, 2011, incident to the public. Ms. Lay was fearful that Mr. Thompson thought that she was the "leak." Consequently, Ms. Lay told Mr. Thompson about the FDLE investigation. Ms. Lay's information about the FDLE investigation thunderstruck Mr. Thompson, and he became extremely angry. He immediately grabbed the phone and began attempting to call his lawyer. Ms. Lay and Ms. Ramdani attempted to calm him. However, Mr. Thompson was extremely angry because he felt betrayed that his Deputy, Ms. Hennecy, and his employees had not told him about the FDLE investigation, and he believed the whole thing was being blown out of proportion. Ms. Zander, Ms. Benoit, and Ms Cubero entered the sixth floor office. Ms. Zander began telling Mr. Thompson that he could not conduct this meeting with Ms. Ramdani. Mr. Thompson, in a highly agitated state, told Ms. Zander and the other employees "young ladies, grab a chair and sit down." Consequently, Ms. Zander, Ms. Cubero ,and Ms. Benoit joined Mr. Thompson, Ms. Ramdani, and Ms. Lay for this impromptu meeting. Mr. Thompson then began to loudly and angrily question Ms. Zander, "What have you done? Who gave you the right to contact FDLE?" Ms. Zander started to answer and moved in her chair, and Mr. Thompson sprung from his chair and stood over Ms. Zander angrily shaking his finger in her face and yelling at her: "don't jump up on me"; "don't raise your voice to me"; and "shut up little girl." All of the participants at the meeting credibly testified that Mr. Thompson was red in the face, visibly angry, and that they felt afraid. Sensibly, Ms. Ramdani told Mr. Thompson to sit back down, and put his hands in his pockets. He then complied with Ms. Ramdani's instruction. Because Ms. Cubero began crying at the meeting, Mr. Thompson asked her what was wrong, and whether she was afraid of him. Ms. Cubero stated that she was afraid of him. Mr. Thompson then asked each of the women at this meeting if they were afraid of him. All of the women stated that they were afraid of him. Although the employees were fearful, Mr. Thompson did not verbally threaten or touch anyone during this meeting. Rather, the employees' fear appeared to be caused by Mr. Thompson's explosive anger and his loud and aggressive manner. Mr. Thompson, in a complete lack of self-awareness, testified that he did not understand why the meeting participants said that they were afraid of him. During the meeting, Mr. Thompson said several times that he did not think there was a case against him because without a "complainant there is no complaint." It was Mr. Thompson's impression that Ms. Ramdani had not filed a formal complaint against him. There was no evidence that Mr. Thompson directed anyone at the meeting to dismiss the H.R. complaint or change their story, or that he sought to discredit Ms. Ramdani. The length of this meeting was approximately two and a half hours. It is undisputed that the portion of the meeting where Mr. Thompson stood over Ms. Zander lasted just a few moments. Near the conclusion of the meeting, Ms. Ramdani expressed the concern that Mr. Thompson would terminate the employment of her and the others at the meeting. Mr. Thompson told them that as long as he was Clerk of the Court they would not lose their jobs. Ms. Ramdani then asked for Mr. Thompson to give this promise in writing. Oddly, Mr. Thompson wrote his promise on a "post-it" note, but refused to sign it. This "post- it" note was not offered into evidence. At the conclusion of the meeting, Mr. Thompson was of the impression that it had been a productive meeting and ended pleasantly. However, Ms. Zander, felt differently and eventually filed a criminal assault charge and the ethics charge against Mr. Thompson for his behavior during the meeting. The day after the January 10, 2012, meeting, Ms. Ramdani decided to move back to her office in Mr. Thompson's office suite on the sixth floor. Ms. Ramdani credibly testified that she decided to move back to the sixth floor because she could not get any work done in the second floor office. Further, she credibly testified that she did not want to pursue the criminal action against Mr. Thompson, or the ethics charge against Mr. Thompson. Further, Ms. Ramdani agreed with the description of Mr. Thompson as a "good boss." On January 20, 2012, Mr. Thompson had another meeting with Ms. Zander with his general counsel present. Mr. Thompson asked her "what was her end-game" and "what would it take to make this go away." Ms. Zander indicated that she did not have a plan on how to resolve the issue concerning Ms. Ramdani's allegation, and that Mr. Thompson would have to resolve the issue with Ms. Ramdani. Mr. Thompson is credited in his testimony that his meaning of "end-game" referred to him asking how Ms. Zander planned to resolve the allegations, not as showing any wrongful intent. There was no evidence that Mr. Thompson took any employment or retaliatory action against the employees that attended the January 10, 2012, meeting. A jury acquitted Mr. Thompson on the charge that committed a battery of Ms. Ramdani. Further, in a separate case, the trial judge entered a judgment of acquittal on Ms. Zander's claim that Mr. Thompson assaulted her during the January 10, 2012, meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics find that Mr. Thompson did not violate section 112.313(6), Florida Statutes. DONE AND ENTERED this 6th day of March, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2013.
The Issue Whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Effective July 1, 1997, the Department is the state agency charged with regulating the practice of medicine through the Board of Medicine ("Board"). Section 20.43, Florida Statutes; Chapters 456 and 458, Florida Statutes. Pursuant to the provisions of Section 20.43(3), Florida Statutes, the Department has contracted with the Agency for Health Care Administration ("AHCA") to provide consumer complaint, investigative, and prosecutorial services required by the Board of Medicine. Dr. Carida is, and was at all times material to this action, licensed to practice medicine in Florida, having been issued license number ME 0019622. Since January 1, 1996, Dr. Carida has practiced medicine as an employee of D.R.C. & Associates, Inc. ("D.R.C."), and he is paid an hourly wage by the company. D.R.C. is a medical management company owned by Diane Carida, Dr. Carida's daughter, who is the company's president. D.R.C. is not a professional association, and Dr. Carida has no ownership interest in the corporation. In November 1998, Dr. Carida was the only doctor employed by D.R.C.; the company's only other employees were an echo technician, a billing clerk, and a phlebotomist who also acted as Dr. Carida's medical assistant. In November 1998, the company's net worth was approximately $10,000.00. On October 30, 1998, the Board's Probable Cause Panel considered the results of an investigation into a complaint filed against Dr. Carida by the family of patient J.M. In accordance with its contract with the Department, the investigation was conducted by AHCA, and an attorney employed by AHCA presented the case against Dr. Carida to the Probable Cause Panel. The investigative file included the medical records of patient J.M. and the report of Leonard S. Williams, M.D., a physician employed by AHCA to render an expert opinion regarding Dr. Carida's care and treatment of the patient. AHCA's attorney also presented to the Probable Cause Panel a draft administrative complaint outlining the proposed charges against Dr. Carida, and AHCA's attorney recommended to the panel that the penalty of license revocation or suspension be sought as the maximum penalty against Dr. Carida. In his report, Dr. Williams presented a summary of the medical records he had reviewed and his conclusions regarding Dr. Carida's care and treatment of patient J.M. Dr. Williams stated in the report that it was his opinion that Dr. Carida had failed to meet the applicable standard of care in his care and treatment of patient J.M. and that the medical records maintained by Dr. Carida failed to document accurately and completely his care and treatment of the patient. Two members of the Probable Cause Panel, a physician and a lay member of the Board, were present and voting at the October 30, 1998, meeting. The Probable Cause Panel was represented by an attorney employed by the Florida Attorney General. Both members of the Probable Cause Panel present at the October 98, 2000, meeting acknowledged receiving the investigative file on Dr. Carida prior to the meeting, and both determined that probable cause existed to support AHCA's charges against Dr. Carida. On November 2, 1998, as a result of the decision of the Probable Cause Panel, AHCA served on Dr. Carida a two-count Administrative Complaint charging that, with respect to patient J.M., he had practiced medicine below an acceptable standard of care and that he had failed to maintain adequate written medical records relating to his care and treatment of the patient. Dr. Carida disputed the facts asserted in the Administrative Complaint, and AHCA sent the file to the Division of Administrative Hearings for assignment of an administrative law judge. A formal hearing was held, and a Recommended Order was entered, in which it was concluded, first, that AHCA had failed to prove by clear and convincing evidence that Dr. Carida practiced medicine below an acceptable standard of care with respect to the care and treatment of patient J.M. and, second, that AHCA had met its burden of proving that Dr. Carida failed to maintain adequate medical records regarding the care and treatment he provided to patient J.M. The Recommended Order was forwarded to the Board for final agency action, and, in its Final Order, the Board dismissed the charge that Dr. Carida practiced medicine below an acceptable standard of care and concluded that Dr. Carida was guilty of the charge that he had failed to maintain adequate written medical records related to patient J.M. On the basis of this violation, the Board imposed an administrative fine on Dr. Carida in the amount of $250.00 and required that he attend an approved course on proper maintenance of medical records. The evidence presented by Dr. Carida is sufficient to establish that he was the prevailing party in the proceeding styled Department of Health, Board of Medicine v. Robert V. Carida, M.D., DOAH Case No. 99-2997, DOH Case No. 95-03135. The more serious charge brought against Dr. Carida in the Administrative Complaint was that he had practiced medicine below an acceptable standard of care, and AHCA contended before the Probable Cause Panel that the appropriate penalty to be imposed against Dr. Carida for this violation was the revocation or suspension of his license. This charge against Dr. Carida was, however, dismissed by the Board in its Final Order, and Dr. Carida was found guilty only of having failed to keep adequate medical records. The penalty imposed on Dr. Carida in the Board's Final Order for this violation clearly indicates that the Board considered the medical records charge to be a minor one. The evidence presented by Dr. Carida is not, however, sufficient to establish that he is entitled to an award of attorney's fees and costs as a small business party. Rather, at the time the action against Dr. Carida was initiated, he was an employee of a medical management corporation, which was not a party to the disciplinary proceeding.
Findings Of Fact The Petitioner is a "small business party" sole proprietorship domiciled in Tampa, Florida, with less than 25 employees, and a net worth of less than $2 million. The Respondent previously initiated action against Petitioner as a result of a Medicaid audit of Petitioner's pharmacy and identified an overpayment which it then sought to recover from Petitioner. A timely request for hearing was filed by Petitioner, and the matter was transmitted by the Respondent to the Division of Administrative Hearings where it was assigned Case Number 88-1668. The final hearing was held in Tampa, Florida, on June 22, 1988, before Donald D. Conn, Hearing Officer, and thereafter a Recommended Order was filed on August 17, 1988, which recommended that Respondent enter a Final Order dismissing its action against Petitioner, refunding any funds which it had withheld, plus interest, and removing all other sanctions. The Respondent approved and adopted this recommendation in its Final Order entered on September 15, 1988, by the terms of which Petitioner prevailed in the prior action initiated by the Respondent. The Respondent was not a nominal party to the prior proceedings, and there is nothing in the record to show that the Respondent was substantially justified in bringing the prior action, or that any special circumstances exist which would make an award of fees and costs unjust. On November 2, 1988, a Petition for Costs and Attorney's Fees was filed with the Division of Administrative Hearings by the Petitioner. The Petition is accompanied by an affidavit and supporting documents which are uncontroverted, and which establish that Petitioner incurred legal fees in the amount of $14,587.50 and costs of $1,437.77, as a result of the prior proceedings in Case Number 88-1668. In the Petition for Costs and Fees, the Petitioner specifically indicated that an evidentiary hearing was not requested. No responsive pleading of any kind has been filed on behalf of the Respondent to this Petition for Costs and Fees.
Findings Of Fact On December 22, 1987, the undersigned held a formal hearing in the underlying case, (DOAH Case No. 87-3084), and on February 4, 1988, issued a Recommended Order to the Florida Real Estate Commission in which it was concluded that the Petitioners had violated various provisions of the Florida Statutes and that disciplinary action was appropriate. Specific disciplinary action was recommended as to each Petitioner. In its Final Order, predicated upon the above mentioned Recommended Order, the Commission adopted the undersigned's Findings of Fact and Conclusions of Law but found the recommendation for punishment as to both Petitioners was inadequate. The Commission increased each period of suspension, rejected the recommendation for stay and automatic remission as to the suspensions, and imposed an administrative fine on each Petitioner. Thereafter, Petitioners appealed the Final Order to the Second District Court of Appeal which, in an opinion filed February 17, 1989 affirmed the Commission's findings of guilt but reversed the penalties imposed by the Commission and remanded with instructions to approve the Hearing Officer's recommended penalties. It is on the basis of this appellate action that Petitioners, claiming to be prevailing small business parties, initiated the instant action. Petitioners are requesting attorney's fees in the amount of $5,261.28 for the appellate action which resulted in the District Court of Appeals reducing the penalty imposed by the Commission to that recommended by the Hearing Officer. This fee and cost figure is the cumulative of charges incurred and represented on 11 monthly billing statements starting 06-01-88 and extending through 04-01-89. Only the last eight, starting with the 09-01-88 billing, state the hours spent providing service. The Florida Legislature has defined a "prevailing small business party" at Section 57.111(3)(c), Florida Statutes.
The Issue Whether Petitioner is entitled to attorneys' fees and costs and, if so, in what amount.
Findings Of Fact 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. 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. 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. On May 2, 1996, the agency, now the Agency for Health Care Administration, entered a final order adopting the recommended order. 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. 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. Petitioner has a net worth of not more than $2,000,000.00 and its principal place of business is Dade County, Florida. 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. 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. Petitioner alleged it is entitled to fees and costs pursuant to Sections 57.105 and 57.111, Florida Statutes.
