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.
Findings Of Fact Based upon the stipulated record submitted by the parties, the following Findings of Facts arc made: Following the issuance of its October 13, 1989, jeopardy assessment against Petitioner, Respondent began its efforts to recover the monies allegedly owed by Petitioner. Collectable assets were identified. These identified assets included a bank account at Barnett Bank of South Florida, N.A. (Account No. 1595012259) in the name of John M. Brumley Racing Engines, Inc. (Corporation) with a balance of $176.29 and real property that appeared to be owned by the Corporation. Respondent gave written notice of its October 13, 1989, jeopardy assessment against Petitioner to Barnett Bank. In the notice, Respondent requested that the bank not transfer nor otherwise dispose of the funds in Account No 1595012259 without Respondent's consent. Subsequently, the bank notified Respondent that it had taken measures to comply with Respondent's request.
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.
The Issue The issue in this proceeding is whether Petitioner is entitled to an award of reasonable costs and attorney fees pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Peggy Watkins and operates Watkins Health Care Center. The center employs under 25 employees and earns less than two million dollars in revenue. Peggy Watkins was the prevailing party in the exemption hearing, P.W. v. Department of Health and Rehabilitative Services, DOAH Case No. 94-1729C, Rendition No. HRS-95-192-FOF- RCD (Fla. DHRS F.O. issued August 3, 1995), which is the action underlying the request for fees and costs in this case. The underlying exemption action in this case resulted from the Department's denial of Petitioner's request for exemption from disqualification from employment in a caregiver capacity to disabled adults on February 14, 1994. The disqualifying factor used by the Department in its decision was a confirmed report of adult abuse, FPSS Number 92-021519 involving the exploitation of W.W. a disabled adult. The report stated in part: Capacity to consent: . . . W.W. does not have the capacity to consent. Findings/classification": W.W. has been living in a mobile home owned by Peggy Watkins for the past four and one half years. It is filthy, run down, and according to local realtor, Yvonne Mediate, would only be worth $150/month, if it were to be cleaned. W.W. actually pays Peggy Watkins $600/month, not including utilities, which he has to pay for separately. She also takes $200 out of his check every month prior to depositing it, and provides no receipts nor gives any explanation as to how this money is spent. Separate checks are drawn on W.W.'s account for food, gas and incidentals, etc. Out of $1,074/month he receives, he has not saved a penny in the four and a half years that Peggy has been payee on his check She provided no receipts for any of the appliances she claims to have bought him and he has no appliances either. She claims that he has sold his appliances for drugs. W.W. denies that this is so . . . , a drug screen was done and W.W.'s system was found to be free of drugs. . . . . Although W.W. complained loud and long about the misappropriation of his funds, at the begin- ning of this investigation, it wasn't long before he did a 180 degree turn about Improper management of finances: verified. . . . The evidence at the exemption hearing demonstrated that there were multiple payments for utilities throughout the course of any given month. Also the evidence at the hearing showed that the Department considered a document which purported to outline a rental/services agreement between Petitioner and W.W. The agreement indicated that Petitioner's rent included utilities and housekeeping services which appeared not to be being performed or paid out of the rent. Given these facts, there is no question that the Department acted reasonably in relying on the confirmed adult abuse report as a basis for denying the Petitioner's request for exemption. As it turned out the evidence at the exemption hearing cast serious doubt on the strength of the abuse report and it was recommended that she be granted an exemption which recommendation was adopted in the Final Order. However, those facts do not demonstrate the Department was not justified in relying on the abuse report as it was established and maintained in the Department's abuse registry in making its initial decision in that case. At the time of making its decision the Department had to decide issues of credibility and reliability in weighing whether to grant Petitioner an exemption. The Hearing Officer's determination was at odds with the determination of the Department, however, the Department's reliance on the veracity of the reports in its abuse registry was not unreasonable. Finally, the total attorney's time spent on this case based on the amendments and deletions to the attorney's affidavit made at the hearing is 97.4 hours. Given the numerous changes made to the affidavit at the hearing and the inclusion of time and work spent on behalf of Petitioner in her other cases, the evidence did not demonstrate a reliable factual basis for the amount of time spent by Petitioner's attorney relative to this proceeding. Given these facts, Petitioner is not entitled to an award of Attorney's fees and costs.
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.
Findings Of Fact Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made: Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991). Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held. Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors. Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992. On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed. Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation. Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
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 Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to reasonable attorney fees and costs in accordance with Section 57.111, Florida Statutes.
Findings Of Fact Petitioner filed an application for a real estate sales license on January 22, 1991. Respondent denied Petitioner's application on April 25, 1991, thereby initiating agency action. The sole basis for the denial of Petitioner's application was the fact that Petitioner was named as a defendant in multiple civil lawsuits filed in United States District Court. The law suits arose from the failure of Centrust Savings Bank ("Centrust"). Petitioner was President of Centrust from February, 1988, to sometime in July, 1989. He served on the Board of Directors of Centrust from August, 1987, until sometime in July, 1989. Prevailing Party Petitioner was the prevailing party in the underlying proceeding. A Recommended Order was entered on January 23, 1992, recommending that Respondent grant Petitioner's application. Shealy v. Florida Real Estate Commission, DOAH Case No. 91-3147. Respondent entered a Final Order on February 21, 1992, adopting ". . . all Findings of Fact, Conclusions of Law and Recommendation . . ." Respondent granted Petitioner's application for license upon successful completion of the written examination. Petitioner successfully completed the written examination and was licensed as a real estate sales agent on March 27, 1992. Since October 7, 1992, Petitioner has been employed as an independent real estate agent with the firm of Real Estate Transactions, Inc., in Miami, Florida ("RET"). Small Business Party Petitioner became self-employed as a financial consultant in January, 1991. From January 17, 1991, through October 6, 1992, Petitioner conducted his financial consulting business in corporate form through WDS Investment, Inc. ("WDS"). WDS was a small business corporation wholly owned by Petitioner and his wife. 1/ Petitioner intended to utilize his real estate license, and a mortgage broker's license he obtained in the Summer of 1991, as an integral part of the financial consulting business he conducted through WDS. In response to a question asking Petitioner to explain his use of the term "self employed," Petitioner stated: I had started WDS Investments. . . . I was unemployed in the tradition[al] sense having been employed for years more as a professional in the financial services field In essence, I was going to try to build a consulting practice. I wanted to get my real estate license and my mortgage brokers license. Transcript at 20. Petitioner and WDS were one and the same entity. Petitioner was the sole managing shareholder and officer in WDS. Petitioner was the only person active in WDS and had exclusive management control of the corporation. Petitioner regarded WDS as his corporation, regarded himself as self employed, and operated WDS as his corporation. Petitioner is the party claiming fees and costs and the prevailing party in the underlying proceeding. After Respondent initiated agency action on April 25, 1991, Petitioner had other business activities in addition to his financial consulting business. Petitioner obtained his mortgage broker license in the Summer of 1991. From that time through October 6, 1992, Petitioner worked as an independent mortgage broker and loan consultant with Financial Monitors, Inc. ("Monitors"). Petitioner was an independent contractor and not an employee of Monitors. Petitioner had no ownership interest in Monitors. Petitioner was employed by Securnet Financial Corporation ("Securnet") from August 1, 1991, to the end of 1991. Petitioner was employed as a manager and had no ownership interest in Securnet. Petitioner's employment with Securnet did not begin until after Respondent initiated agency action on April 25, 1991. His employment with Securnet terminated prior to the commencement of this proceeding on May 26, 1992. Petitioner became employed as an independent sales agent with RET on October 7, 1992. Petitioner's status as an employee with RET began after agency action was initiated on April 25, 1991, and after this proceeding was initiated on May 26, 1992. Petitioner is a small business party within the meaning of Section 57.111(3)(d)1., Florida Statutes. Petitioner is domiciled in Florida and has been so domiciled since before this proceeding began on May 26, 1992. The principal office of WDS has been located in the state since January 17, 1991. Petitioner conducted his financial consulting business in corporate form on April 25, 1991. Since January, 1991, Petitioner has had no more than 25 employees and a net worth of no more than $2 million, including both personal and business investments, either directly or by attribution from his wife, WDS, and his other business activities. Not Substantially Justified Respondent was not substantially justified in denying Petitioner's license application. Respondent had no reasonable basis in law or fact to deny Petitioner's application. Respondent cited no legal authority to support its denial of Petitioner's application solely on the basis of Petitioner's status as a defendant in civil litigation. Respondent presented no evidence that it undertook an independent determination of the truthfulness or credibility of the allegations in the litigation, no independent evidence to support such allegations, and no evidence to support any other factual basis for Respondent's denial of Petitioner's application. Respondent presented no evidence of Petitioner's lack of qualification to be licensed as a real estate sales agent. Petitioner made a full and timely disclosure on his application that he was a defendant in civil litigation. Respondent presented no evidence that the allegations in the civil lawsuits were anything other than allegations against numerous officers and directors of Centrust. Respondent presented no evidence of an adjudication of Petitioner's guilt. Respondent presented no evidence to rebut or refute Petitioner's showing that Petitioner is honest, truthful, trustworthy, of good moral character, and has an impeccable reputation for honesty and fair dealing in the business community. Fees And Costs The attorney fees and costs claimed by Petitioner are reasonable and necessary. Petitioner presented credible and persuasive expert evidence that the attorney fees and costs are reasonable and necessary.
The Issue The ultimate issue for determination in this proceeding is whether Respondent is entitled to fees and cost pursuant to the Florida Equal Access to Justice Act promulgated in Section 57.111, Florida Statutes.
Findings Of Fact Petitioner seeks reimbursement of fees and costs paid to defend an administrative proceeding conducted by former Hearing Officer Jane Hayman in Case Number 89-3883, Division of Administrative Hearings (the "Division"). Respondent sought fines against Kehoe on the Bay, a licensed Adult Congregate Living Facility, for four alleged deficiencies determined to have existed during a follow up visit to an annual survey of the facility. The four allegations of deficiencies were: (a) one smoke detector did not work; (b) the facility had failed to document that the fire alarm system had been tested; (c) the facility failed to document that the smoke detectors had been tested; and (d) seven doors did not close properly in violation of fire safety requirements. At the outset of the formal hearing, Respondent voluntarily dismissed the allegation concerning the faulty smoke detector and proceeded on the remaining three allegations. Respondent prevailed in the Final Order with respect to two of the three allegations at issue. The Final Order reversed findings of fact in the Recommended Order with respect to two of the allegations. The Final Order found that the facility had failed to document that the smoke detectors had been tested, and that seven of the doors did not close properly. The Final Order sustained the findings in the Recommended Order that the facility had documented the testing of the fire alarm system. No penalty was imposed in the Final Order due to mitigating circumstances proved at the formal hearing. Petitioner did not appeal the Final Order, and the time for seeking judicial review of the Final Order has expired. Petitioner's fees and costs are not allocated or apportioned among the four original allegations in Case Number 89-3883. The affidavit of counsel for Petitioner contains 39 entries for fees and costs totalling $4,729.49. Additional fees in the amount of $705 and costs in the amount of $225 were incurred by Petitioner through the date of the formal hearing in this proceeding. The total amount of fees and costs stipulated to by the parties is $5,002.50. There is no evidence, however, of what proportion of those fees and costs are attributable to either the single allegation in Case Number 89-3883 with respect to which Petitioner prevailed or the allegation voluntarily dismissed by Respondent. Petitioner has 30 employees at all the five facilities owned and operated by Petitioner in Florida. Petitioner owns and operates five facilities. Two are Dade County facilities, two are Department of Health and Rehabilitative Services facilities, and one is a veteran's administration facility. Petitioner has reported no profit on his facilities for seven years. The administrative proceeding brought by Respondent in Case Number 89- 3883 had a reasonable basis in law and fact at the time it was initiated by Respondent. That proceeding was based upon an annual survey and follow up visit conducted by one of Respondent's inspectors in the ordinary course of business, and the credibility assessment of the testimony of Respondent's inspector. Respondent's inspector had been inspecting similar facilities since 1986. Prior to that, the inspector inspected homes for the elderly in New York for approximately 23 years. The assessment of the inspector's testimony regarding the results of the annual survey and follow up visit was not so unclear that no general counsel would have prosecuted the case, and it was not unreasonable for Respondent to do so.
