Findings Of Fact On January 16, 1987, Department of Health and Rehabilitative Services notified J. S. By letter that it had received a report of neglect regarding him and advised him of his right to request the report be amended or expunged. J. S. did so but on February 26, 1987, the Department advised him his request for expungement had been denied. Thereafter, J. S. requested a formal hearing which was held by the undersigned on October 27, 1987. After a full, formal hearing on the merits, at which both testimony and documentary exhibits were presented by both parties, the undersigned, on December 1, 1987, entered a Recommended Order in which it was found, as a matter of fact, that while the alleged victim of the neglect was incapable of totally caring for himself, the evidence presented was insufficient to establish that the relationship between the victim and J. S. was a care-giving one or that J. S. had the responsibility to look out for the victim so as to bring him within the purview of the statute. The Department thereafter entered a Final Order consistent with the Recommended Order, amending the classification of the report to "unfounded" and expunging it from the Department records. Evidence introduced at the original formal hearing held herein established that J. S. was an employee, (resident manager) at the Royal Palm Retirement Home in Ft. Myers, Florida. He was not the owner of the facility nor was any evidence introduced to indicate he had any financial interest, other than as an employee, in the facility. Further, he was not engaging in the professional practice of a licensed profession. His relationship with the alleged victim was found to be no more than that of landlord-tenant. The Department's investigation of the alleged neglect, while not completely comprehensive, nonetheless was sufficiently thorough to meet the test of reasonableness.
The Issue Whether the Petitioner is entitled to an award for attorney's fees and costs under the provisions of Section 120.57(1), Florida Statutes, or some other provision of Florida law.
Findings Of Fact On July 31, 1996, this Administrative Law Judge issued a Recommended Order granting Petitioner’s request for an exemption from disqualification as a caretaker, in a position of special trust, under the provisions of Section 39.076(1), Florida Statutes (1994). The Recommended Order was adopted by the Respondent in a Final Order, issued August 13, 1996. Petitioner was the prevailing party in the administrative proceeding before DOAH. On September 30, 1996, in a separate case, the Public Employees Relations Commission (PERC) found that Petitioner was a permanent status employee at the time of his dismissal by Respondent. PERC found that at no time during Petitioner’s employment with Respondent was Petitioner informed that he was anything other than a probationary and permanent status employee. It was not until Petitioner’s dismissal on June 14, 1995, that Respondent informed him that he was a “substitute” employee. Respondent did not inform Petitioner of any right to appeal he might have had to PERC at the time of his dismissal or at any time thereafter. Petitioner was informed by Respondent that as a substitute employee his only rights of administrative appeal were with the Respondent and DOAH. PERC found no evidence of a mistake or error in the hire of Petitioner; it found that Respondent intended to hire the Petitioner as a probationary employee, not as a substitute. PERC found that Petitioner achieved permanent status by default when Respondent failed to remove him during the probationary period. Petitioner became aware that he may have been a permanent status employee with rights of appeal to PERC on the day of the DOAH hearing. Petitioner would not have brought the DOAH action, had he been apprised of his rights of appeal to PERC at or about the time of his termination. Kenneth W. Williams, Esquire of the Law Office of Douglas-Bailey and Williams represented Petitioner through all stages of the administrative process, and Petitioner agreed to pay a reasonable fee for his services. The Petition for Costs and Attorneys' Fees was filed on January 14, 1997. The parties were unable to reach a stipulation regarding the entitlement to or the amount of reasonable attorney's fees to be awarded.
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.
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 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.)
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/
The Issue Is Petitioner entitled to attorney's fees and costs pursuant to Section 57.111, Florida Statutes, The Florida Equal Access to Justice Act, and Rule 22I- 6.035, Florida Administrative Code?
Findings Of Fact Petitioner herein, Jules G. Minkes was the Respondent in a license disciplinary proceeding styled Department of Professional Regulation, Board of Osteopathic Medical Examiners, DOAH Case No. 88-3749. That underlying case was resolved by a Notice of Voluntary Dismissal served by the Department of Professional Regulation attorney on December 9, 1988. It was filed with the Division of Administrative Hearings on the same date. On December 16, 1988, the undersigned entered an Order providing in pertinent part, "This cause came on for consideration upon Petitioner's Notice of Voluntary Dismissal, which, by operation of law, dismisses this cause and the file of the Division of Administrative Hearings is accordingly CLOSED." On February 13, 1989 the Petition and Affidavit for attorney's fees, together with supporting documents and a Memorandum in support of the petition were filed with the Division of Administrative Hearings. The Petition was served by mail on February 10, 1989. It does not specifically request an evidentiary hearing. This fees and cost cause was subsequently styled as Minkes v. Department of Professional Regulation, Board of Medical Examiners, DOAH Case No. 89-0792F. On February 28, 1989, Respondent filed an Answer which was "sworn and subscribed" by the DPR attorney. The Answer constitutes a general denial of all allegations and demands "strict proof" of the attorney's fees and costs set forth by Petitioner's pleadings, but contains no itemized counter-affidavit challenging the reasonableness of the attorney's fees and costs claimed by Petitioner as contemplated by Rule 22I-6.035(4) and (5)(a), Florida Administrative Code. The answer also alleges substantial justification for the underlying action and "special circumstances" which would render unjust any award of fees and costs. These latter two allegations are made without any particularity as to what constitutes the "justification" or the "special circumstances." The Answer makes no specific request for evidentiary hearing beyond the demand for "strict proof" of "whether and/or to what extent" fees and costs were incurred by Petitioner. No counter-affidavit or request for evidentiary hearing has been filed to date. See, Rule 22I-6.035(4), (5) Florida Administrative Code.
Findings Of Fact William L. McCallister was the Respondent in Dept. of State, Division of Licensing vs. William L. McCallister, DOAH Case No. 86-1480. The Department of State, Division of Licensing, initiated Case No. 86- 1480. In that action, the Department of State sought to revoke the detection of deception examiner's license of William L. McCallister. It also entered an emergency order of suspension. William L. McCallister was the prevailing party in DOAH Case No. 86- 1480. The total value of reasonable attorney's fees and costs in this proceeding is $15,000. The Department of State was not a nominal party in these proceedings. During 1985, William L. McCallister was the sole owner of McCallister Polygraph Service, Inc. During 1985, he was employed by the Polk County Sheriff's office as a sworn officer serving as Staff Polygraphist. When he conducted the polygraph examinations of the three complaining witnesses in DOAH Case No. 86-1480, he did so in fulfillment of his duties as Staff Polygraphist. McCallister Polygraph Service, Inc. was not a party in DOAH Case No. 86-1480. Prior to initiating proceedings in DOAH Case No. 86-1480, the Department of State conducted an adequate factual investigation of the allegations by Phyllis Langdale, Rose Giannotti, and Joanne Meyer. The evidence presented at final hearing regarding standards applied by the Department to detection of deception examiners in disciplinary proceedings describes the standards in effect at the time the complaint was filed.
