Findings Of Fact Petitioner Bobbie G. Scheffer was one of two respondents in Department of Professional Regulation, Division of Real Estate v. Scheffer and Ecoff, No. 89-4699, administrative proceedings respondent Department of Professional Regulation (DPR) initiated by filing an administrative complaint alleging, as summarized in the recommended order: that respondent Scheffer "[a]t all times material . . . licensed and operating as qualifying broker for Rivard Realty, Inc." and respondent Ecoff "a licensed real estate salesman . . . provided a copy of MLS computer print out sheet pertaining to certain residential property . . . to Daniel H. and Dorothy M. Stacy . . . [to verify] that the house was eight years old and on a commercial sewer system", that respondent "Ecoff was the owner of the property and the listing salesman"; that the Stacys "entered into a contract to purchase the property . . . relying upon the representations made by the [r]espondents"; that "Scheffer was the broker who handled the sale while Ralph S. Ecoff was licensed as a salesman in her employ"; that respondents "failed to disclose or point out to the buyers the true age of the house being 14 years or that the house was actually on a septic system"; that "the buyers closed on the house believing the age of the house to be eight years old and having a commercial sewer system"; that respondent "Ecoff admitted knowing that the house was on a septic tank"; and that respondents are therefore both guilty of "misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes" and of "having placed or caused to be placed an advertisement which is false, deceptive or misleading in violation of Rule 21V-10.025," Florida Administrative Code. But the recommended order concluded that "the evidence did not clearly and convincingly show that respondent Scheffer actually knew or had reason to know the listing was inaccurate." At page 7. The final order adopted this conclusion. By stipulation, petitioner qualifies as a prevailing small business party who meets all rule and statutory requirements under the Florida Equal Access to Justice Act and Rule 22I-6.035, Florida Administrative Code. In successfully defending against the administrative complaint, Ms. Scheffer incurred reasonable attorney's fees in the amount of $1,980 and costs in the amount of $219.75, for a total of $2,199.75. She incurred additional reasonable attorney's fees in the amount of $330 in the present proceeding. 1/ The facts proven at hearing are set out in detail in the attached recommended order entered in Case No. 89-4699 and are adopted by reference in their entirety here. No evidence adduced in the present proceeding proved respondent had materially different or additional information when it decided to file the administrative complaint. 2/
Findings Of Fact On October 5, 1989, Respondent filed an Order to Show Cause seeking to take disciplinary action against the certification of authority issued to Petitioner, The Administrators Corporation, and the insurance licenses issued to Petitioner, Charles N. Zalis. Petitioners timely requested a formal hearing, and the case was transferred to the Division of Administrative Hearings for the conduct of a formal hearing regarding the allegations contained in that Order to Show Cause. Upon receipt, the matter was assigned DOAH Case No. 89-5981. The final hearing in that disciplinary matter was conducted on May 14, 1990. Thereafter, a Recommended Order was entered on July 9, 1990, recommending to Respondent that a final order be entered finding Petitioners not guilty of the allegations contained in the Order to Show Cause and dismissing the Order to Show Cause filed against them. None of the parties filed exceptions to the Recommended Order. On August 15, 1990, the Treasurer and Insurance Commissioner entered a Final Order adopting in full the Findings of Fact, Conclusions of Law, and Recommendation contained within that Recommended Order; finding the Petitioners not guilty of the allegations contained in the Order to Show Cause filed against them, and dismissing the Order to Show Cause. On September 21, 1990, Petitioners filed with the Division of Administrative Hearings their Petitions for Costs and Fees, pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code. On September 27, 1990, an Initial Order was entered in each of the above-captioned causes. The Initial Order is a form order automatically prepared by the Clerk's Office and signed by the Director of the Division of Administrative Hearings in every case filed with the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes, except for those proceedings conducted on an expedited basis pursuant to statutory directives. The Initial Order advises the parties as to the name of the Hearing Officer assigned to hear the matter, provides certain procedural information, and solicits specific information from the parties so that the matter can be scheduled for an evidentiary hearing appropriately. On October 8, 1990, Respondent filed a joint Response to Initial Order on behalf of all parties, and on October 10, 1990, Respondent filed a joint Amended Response to Initial Order on behalf of all parties in this proceeding. The Amended Response to Initial Order advised that the parties had agreed that the final hearing should be scheduled for one day during the month of February, 1991, in Tallahassee. Pursuant to the agreement of the parties regarding the scheduling of the evidentiary hearing in this cause, on October 19, 1990, these causes were consolidated sua sponte, and a formal hearing was scheduled in these consolidated causes for February 14, 1991, in Tallahassee, Florida. No response by Respondent to either the Petition for Costs and Fees filed by The Administrators Corporation or the Petition for Costs and Fees filed by Charles N. Zalis has ever been filed in this cause even in the face of the Motion for Summary Final Order based upon Respondent's failure to respond. Accordingly, this matter is decided on the basis of the petitions filed in these consolidated causes, together with the documentation attached to those petitions, Petitioners' Motion for Summary Final Order, together with the documentation attached to that motion, and Respondent's Response to Motion for Summary Final Order. Since the Respondent has failed to controvert or dispute any of the factual allegations contained within those pleadings, there is no factual allegation in dispute in these consolidated causes. Petitioners are small business parties as defined by Section 57.111, Florida Statutes. By virtue of the Final Order entered in DOAH Case No. 89- 5981, Petitioners are prevailing small business parties in an administrative proceeding pursuant to Chapter 120 initiated by a state agency. The actions of Respondent both in initiating and in pursuing the Order to Show Cause filed in DOAH Case No. 89-5981 were substantially unjustified, and no special circumstance exists which would make unjust the award of attorney's fees and costs to Petitioners in these consolidated causes. The itemized affidavits filed in these consolidated causes reveal the nature, extent, and monetary value of the services rendered by Petitioners' attorneys, as well as the costs incurred in the underlying proceeding. Petitioners incurred attorney's fees in the amount of $49,581.25 and costs in the amount of $7,351.72 in the underlying administrative proceeding. The amounts of attorney's fees and costs claimed by Petitioners are reasonable and necessary. The Department of Insurance and Treasurer was not a nominal party only in the underlying administrative proceeding. Petitioners filed their Petitions for Costs and Fees within 60 days after the date that they became prevailing small business parties.
Findings Of Fact Petitioner, Raul Romaguera, is a small business party within the meaning of Subsection 57.111(3)(d), Florida Statutes (1985). When the underlying action herein occurred, he was licensed as a medical doctor by respondent, Department of Professional Regulation, Board of Medical Examiners (Board). On October 27, 1986, respondent filed an administrative complaint against Dr. Romaguera alleging that he had violated Subsection 458.331(1)(t), Florida Statutes (1985), by committing gross malpractice or failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The alleged violation related to Dr. Romaguera's inspection and diagnosis of a patient's tissue in December, 1980 while supervising a pathology department at a Lake Worth hospital. After an evidentiary hearing was conducted on March 24 and 25, 1987, a Recommended Order was entered by the undersigned on May 12, 1987, finding that the charge was unsubstantiated and recommending that the complaint be dismissed. The Recommended Order was adopted by the Board in its entirety by Final Order dated June 19, 1987. A timely petition for attorney's fees and costs was thereafter filed by petitioner on August 18, 1987. The parties have stipulated that, as a result of the Board's Final Order, Dr. Romaguera is a prevailing small business party within the meaning of Section 57.111, Florida Statutes (1985). They have also stipulated that, in order to defend against the agency's action, Dr. Romaguera incurred at least $15,000 in attorney's fees and costs. There is no evidence as to what information, oral or written, the probable cause panel had before it when voting to initiate this action. The agency does stipulate that, at some point in the probable cause phase of the proceeding, the panel requested more information on the matter before taking a vote. This is corroborated by an agency memorandum dated April 8, 1986 and introduced into evidence as petitioner's exhibit 1. At the final hearing on the merits of the administrative complaint, the agency presented a number of expert witnesses who concurred in the Board's assessment that Dr. Romaguera had failed to practice medicine with that level of care, skill and treatment required of a reasonably prudent similar practicing physician in the Lake Worth area. Doctor Romaguera also presented the testimony of an expert who disagreed with this assessment. Hence, the validity of the charges turned on the credibility and weight to be given the various experts by the undersigned.
The Issue Whether Petitioners are entitled to attorneys' fees and costs.
Findings Of Fact The following facts are taken verbatim from the parties' Joint Pre-Hearing Stipulation (JPS): On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Vipul Patel's Petition for Variance from or Waiver of Rule 64B16-26.2031, F.A.C. (hereinafter Petition for Variance). On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Se Young Yoon's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Miriam L. Hernandez's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mirley Aleman- Alejo's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied John H. Neamatalla's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Md. A. Samad Mridha's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Valliammai Natarajan's Petition for Variance. For convenience sake, the foregoing-named Petitioners are referred to as "Group 1." Petitioners' "Group 2" are identified in paragraphs 38 through 41 of the JPS: On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Saurin Modi's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Deepakkumar Shah's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Ravichandran Sokkan's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mijeong Chang's Petition for Variance. Respondent issued orders denying the Petitions for Variance for Group 1 Petitioners on or about May 9, 2008. Respondent issued orders denying the Petitions for Variance for Group 2 Petitioners on or about July 3, 2008. Subsequent to the entry of the orders denying their variances, each of Group 1 Petitioners retained counsel and filed petitions to challenge the denial of their variances. Subsequent to the entry of the orders denying their variances, each of Group 2 Petitioners retained counsel and filed petitions to challenge the denial of their variances. All petitions were filed within 21 days of the entry of the orders that denied the variance. Respondent did not dispute the timeliness of the petitions, but took no action on the petitions. Instead, on or about August 21, 2008, Respondent reconsidered the petitions for variance, and granted all of the Petitioners' requests. Respondent did not take action on the requests to challenge the original variance denials, did not refer the cases for formal proceedings, and did not re-visit Petitioners' claims until August 21, 2008. On or about September 5, 2008, Respondent entered orders granting Petitioners' variances. Group 1 Petitioners waited approximately five months to obtain approval of their variances. In the meanwhile, they had retained counsel and filed petitions to challenge the denials. Group 2 Petitioners waited approximately three months for their variances to be approved. They, too, retained counsel to protect their rights. In October 2008, Petitioners filed Petitions for Attorneys' Fees and Costs with Respondent. Respondent did not grant, deny, or refer those petitions to DOAH. On or about November 24, 2008, Petitioners filed a Verified Writ of Mandamus, in the Eighteenth Judicial Circuit Court, Seminole County, Florida, requesting that the court require Respondent to either grant or deny the petitions for attorneys' fees and costs. On or about December 2, 2008, Petitioners served on Rebecca Poston, executive director of the Board of Pharmacy, a summons with petition for writ of mandamus. On or about February 16, 2009, Petitioners filed a Motion for Entry of Clerk's Default for Failure of Respondent to file a Response to the writ. The case was transferred to the Second Judicial Circuit, Leon County, Florida. On or about June 4, 2010, the Second Judicial Circuit, Leon County, Florida, issued an Order to Show Cause on Respondent. Ultimately, the court denied the writ and dismissed the Order to Show Cause. Petitioners then filed Petitions for Attorneys' Fees and Costs with DOAH and the cases were consolidated for hearing. The parties agreed to bifurcate the issues and resolve the issue of whether Petitioners are entitled to attorneys' fees and costs, before addressing the remaining question of the amount of fees and costs, if appropriate to award them. Petitioners were the prevailing parties in the underlying matter, since the variances were granted. On August 1, 2008, Respondent issued a Notice of Proposed Rule Development for Florida Administrative Code Rule 64B16-26.2031. On August 1, 2008, A Notice of Proposed Rule for rule 64B16-26.2031 was published in the Florida Administrative Weekly. On August 13, 2008, approximately eight days before the variances were approved, Respondent decided to amend rule 64B16-26.2031. Implicit in this amendment, is the concession that the former version of the rule exceeded Respondent's statutory authority. Respondent approved the amended rule 64B16-26.2031, on or about June 10, 2009. Petitioners maintain that Respondent acted with an improper purpose when it denied Petitioners' initial applications and subsequent petitions for variance. Petitioners assert that Respondent caused undue delay, by failing to timely grant or deny Petitioners' petitions to challenge the variance denials, and that Respondent's failure to grant, deny, or forward the petitions to DOAH, was an abuse of the agency's discretion. Further, Petitioners claim that Respondent should have acted on the petitions for attorneys' fees and costs, or referred them to DOAH. Respondent maintains it acted appropriately and in good faith, because its actions were substantially justified and in accordance with law.
Conclusions For Petitioners: George F. Indest, III Justin C. Patrou The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 For Respondent: Allison Dudley Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this Partial 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 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.
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.
Findings Of Fact In July, 1992, the Department of Health and Rehabilitative Services (HRS) published notice soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services HRS District VI. The services were to be provided from October 1, 1992, through June 30, 1993. (Exhibit #4). Within relevant deadlines, protests to the written specifications of the solicitation were filed by Petitioner, Donald W. Belveal, and others. HRS determined that material disputes of fact existed and the protests were referred to the Division of Administrative Hearings (DOAH) where the cases were consolidated and set for final hearing. (Exhibit #5) Hearing Officer, Veronica Donnelly, conducted the hearing and issued a recommended order on December 22, 1993, recommending that the specifications be rejected as flawed and that they be extensively revised. (Exhibit #5). Exceptions were filed, and upon a suggestion of mootness HRS entered a final order on March 17, 1993, dismissing the proceedings and finding further: No Final Order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees. The request for a determination of attorney fees is DENIED. The request to dismiss the department's exceptions to the Recommended Order is DENIED. (Exhibit #6) Donald Belveal appealed this final order to the Second District Court of Appeal. The full opinion of the court in Donald W. Belveal v. State of Florida, Department of Health and Rehabilitative Services, case no. 93-01121, dated February 25, 1994, provides: The law firm of Donald Belveal appeals a final agency order entered by the Florida Department of Health and Rehabilitative Services (HRS) which dismisses administrative proceedings and denied Belveal's motion for attorney's fees and costs under section 57.111(4), Florida Statutes (1991) on the ground that Belveal was not a prevailing party. We reverse. Belveal and other lawyers formally protested a bid solicitation package prepared by HRS to procure legal services for its child support program in Hillsborough County. The Department of Administrative Hearings (DOAH) held a formal hearing after which the hearing officer entered a recommended order that the package be revised, citing numerous improprieties. HRS filed excep- tions to the order. In addition, to prevent a lapse in services during the protest proceedings, HRS extended the existing contract for legal services to cover the remainder of the bid proposal period. Arguing that the extension nullified the bid solicitation and rendered the administrative contest moot, Belveal and the others filed a motion to dismiss the exceptions. They also asked that the case be remanded to DOAH for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, section 57.111(4), Florida Statutes (1991). The deputy secretary for human services of HRS entered a "final order" which concluded that Belveal's motion to dismiss/suggestion of mootness was tantamount to a request that the proceedings be discontinued. The department dismissed the proceedings, denied the request to dismiss HRS's exceptions, and denied the request for attorney's fees stating, "[n]o final order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees." HRS exceeded its authority in entering this order. First, the dismissal of the action exceeded the scope of the motion to dismiss the exceptions. Second, the determination of whether Belveal was a prevailing party entitled to attorney's fees and costs was solely within the jurisdiction of the DOAH hearing officer. See Dep't. of Health and Rehabilitative Services v. S. G., 613 So. 2d 1380, 1384 n.1 (Fla. 1st DCA 1993). Because HRS denied the motion to dismiss the exceptions yet never ruled on the hearing officer's recommended order, we remand the case to HRS for further proceedings in accordance with section 120.57, Florida Statutes. Reversed; remanded. In addition, the appellate court issued its order granting fees in the appeal, "...provided that appellant is ultimately the prevailing party in the proceeding below." (Exhibit #2) HRS entered its corrected final order on June 22, 1994, finding the case to be moot with the exception of the attorney's fees issue, acknowledging that the agency is without jurisdiction to determine who is the prevailing party and entitled to fees, and dismissing the case. (Exhibit #4) It is undisputed that Donald Belveal is a small business party. (Respondent's proposed final order, paragraph 8). Donald Belveal claims total fees of $21,292.25, incurred in the administrative proceeding, which fees are based on 121.67 hours at an hourly rate of $175. He claims additional fees for the appeal. (Exhibit #3) As stipulated, the claimed fees are reasonable, but the award may not exceed $15,000. (Respondent's proposed final order, paragraph 9.)
The Issue Whether the Petitioner, Patricia Smithwick Valz, is entitled to an award of attorney's fees as a "prevailing small business party" in the underlying administrative proceeding.
