01-004832F Raymond H. Cralle vs. Department Of Health, Board Of Physical Therapy Practice Status: Closed DOAH Final Order on Monday, June 10, 2002.

Summary: Petitioner`s claim, the reasonableness of which is both undisputed and independently established as reasonable, falls within the parameters of the mandatory language of the Florida Equal Access to Justice Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND H. CRALLE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4832F

)

DEPARTMENT OF HEALTH, BOARD OF )

PHYSICAL THERAPY PRACTICE, )

)

Respondent. )

__________________________________)

FINAL ORDER

This matter is before th e undersigned upon Petitioner's

Amended Motion to Tax Costs and Attorney's Fees.

APPEARANCES

For Petitioner: Richard Willits, Esquire

2290 10th Avenue, North, Suite 404

Lake Worth, Florida 33461

Fo r Respondent: Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Petitioner should be awarded attorney's fees and

costs pursuant to the Florida Equal Access to Justice Act (the

Act), Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner Raymond H. Cralle (Petitioner or Cralle) timely

filed his Amended Motion to Tax Costs a nd Fees. Respondent

Department of Health, Board of Physical Therapy Practice

(Respondent or Board) waived hearing and stipulated that

Petitioner is the prevailing small business party.

FINDINGS OF FACT

1. These proceedings arise out of DOAH Case No. 01 - 2 928,

Department of Health, Board of Physical Therapy v. Raymond H.

Cralle . There, a Recommended Order was entered on November 27,

2001, which recommended entry of a final order dismissing all

charges against Petitioner.

2. On February 8, 2002, Responden t filed with the Division

of Administrative Hearings a final order of dismissal in that

case.

3. Petitioner, the prevailing small business party within

the meaning of Section 57.111, Florida Statutes, timely filed

his request for fees and costs pursuant t o the Act.

4. Respondent does not dispute the reasonableness of the

attorney's fees claimed in the total amount of $10,050.00, nor

does it dispute that costs in the amount of $2,655.95 were

incurred by Cralle in the underlying case.

5. The entire record in this case, which includes a

transcript of the probable cause hearing, considered in light of

the entire record in Case No. 01 - 2928, establishes that the

total amount of fees and costs claimed here were necessarily and

reasonably incurred in the successf ul defense of the

administrative charges.

6. In opposition to Cralle's request for reimbursement

pursuant to the provisions of the Act, Respondent argues that

the case falls within an exception for proceedings which were

"substantially justified" at the t ime the charges were brought.

7. The crux of Respondent's argument is that "[the]

Administrative Law Judge decided the case primarily on the basis

that, in her belief, based on the demeanor of the complainant,

[Respondent] was more credible than the com plainant."

8. Respondent's argument requires that material facts be

ignored. In the underlying case, Respondent had the burden to

prove the administrative charges by clear and convincing

evidence. Yet its factual case was based exclusively upon the

tes timony of Helen Mesa (Mesa). Mesa's demeanor was just one of

several things noted in the Recommended Order which cast doubt

upon her credibility.

9. At the time of the probable cause hearing, it was

known, or at least knowable, that Mesa fit the profile of the

stereotypical "disgruntled former employee."

10. At least a half dozen witnesses could have been

expected to corroborate Mesa's testimony, and at the probable

cause stage of the proceedings, Respondent's own expert

recommended that at least some o f these individuals be found and

interviewed.

11. With this red flag flying, and Cralle's attorney

protesting that Mesa's story should be corroborated in some

fashion before the litigation process was set in motion,

Respondent elected to proceed on a ne edlessly thin

investigation.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Sections 57.111 and 120.57, Florida Statutes.

13. Section 57.111(4), Florida Statute s, mandates an award

of attorney's fees and costs to a prevailing small business

party as follows:

(4)(a) Unless otherwise provided by law,

an award of attorney's fees and costs shall

be made to a prevailing small business party

in any adjudicatory proc eeding or

administrative proceeding pursuant to

chapter 120 initiated by a state agency,

unless the actions of the agency were

substantially justified or special

circumstances exist which would make the

award unjust.

14. Section 57.111(3)(e), Florida Sta tutes, defines the

term "substantially justified" as follows:

(3)(e) A proceeding is "substantially

justified" if it had a reasonable basis in

law and fact at the time it was initiated by

the state agency.

15. The Act does not specify what constitutes "a

reasonable basis in law and fact at the time [proceedings were]

initiated by the state agency." In this case, the totality of

the record supports the conclusion that Respondent was not

substantially justified in bringing administrative charges

against Petitioner based upon the information available at the

time the probable cause determination was made.

16. The Respondent's burden of proof at the final hearing

would be a heavy one. With a comparatively small expenditure of

time and effort, its invest igators could have learned how weak

its evidence was. Instead, at much greater expense to the state

and to Cralle, Respondent elected to proceed without taking the

basic investigative actions recommended by its own expert.

17. Cralle's claim, the reas onableness of which is both

undisputed and independently established as reasonable, falls

within the parameters of the mandatory language of the Act.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner's Am ended Motion to Tax Costs

and Attorney's Fees is GRANTED.

DONE AND ORDERED this 10th day of June, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

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 Hearing s

this 10th day of June, 2002.

COPIES FURNISHED:

Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

Richard Willits, Esquire

2290 10th Avenue North, Sui te 404

Lake Worth, Florida 33461

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. Kaye Howerton, Executive Director

Board of Physical Therapy Practice

Department of Health

4052 Bald Cypre ss Way, Bin C05

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final O rder 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

Di vision 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 mus t be filed within 30 days of rendition of the order to

be reviewed.