03-002807F Josephine Kimball vs. Department Of Health Status: Closed Recommended Order on Tuesday, January 25, 2005.

Summary: Petitioner is not entitled to attorney`s fees under Section 120.595, Florida Statutes, though she prevailed in an underlying proceeding. Respondent was not a "non-prevailing adverse party" and did not participate in the proceeding for an improper purpose.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPHINE KIMBALL, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2807F

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

in Tampa, Florida, on August 19, 2004, before Carolyn S.

Holifield, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brandon L. Kolb, Esquire

Dis covery Tours, Legal Department

35202 State Road 54

Zephyrhills, Florida 33541

For Respondent: Robert P. Daniti, Esquire

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUES

The issues for consideration in this case are whether the

Petitioner, Josephine Kimball, is entitled to an award of

attorney fees from Respondent, Department of Health, as provided

in S ection 120.595, Florida Statutes (2003), and, if so, in what

amount.

PRELIMINARY STATEMENT

On July 28, 2003, Petitioner, Josephine Kimball

("Petitioner" or "Josephine Kimball"), filed a Petition for

Award of Attorney Fees and Costs ("Petition" or "Pet ition for

Attorney Fees") and the Affidavits of Rolando J. Santiago and

Josephine Kimball in support of the Petition. Petitioner seeks

attorney's fees pursuant to Section 120.595, Florida Statutes

(2003), contending she is a prevailing party in the underl ying

administrative proceeding and that Respondent, Department of

Health ("Department"), brought the case against her for an

improper purpose. The underlying proceeding is Department of

Health v. Discovery Experimental, et al. , Case No. 93 - 6184 (DOAH

Apri l 18, 2003), which consolidated four cases, DOAH Case

Nos. 93 - 6184, 95 - 2255, 97 - 3836, and 98 - 4364.

The Administrative Complaint filed by the Department in

DOAH Case No. 97 - 3836 ("1997 Administrative Complaint" or

"underlying proceeding") alleged that Josep hine Kimball was

"responsible for the accounting, check registers, books and

other financial records" of each of the corporate Respondents;

that Josephine Kimball was compensated for these services; and

that through these and other activities, Josephine Ki mball

continuously participated in the manufacture, promotion,

advertisement, sale, and other distribution of unlawful drugs.

After the conclusion of the final hearing in the underlying

proceedings, a Recommended Order was issued, which recommended

that t he Department dismiss the Administrative Complaint against

Josephine Kimball. The Department's Final Order, executed

May 23, 2003, approved, adopted, and incorporated by reference,

the Recommended Order.

On March 10, 2004, this case was consolidate d with

Discovery Tour Wholesalers, Inc. v. Department of Health , Case

No. 03 - 2754 (DOAH January 5, 2005), and Global Health

Information/Medical Research Institute, Inc. v. Department of

Health , Case No. 03 - 2806 (DOAH January 3, 2005), solely for the

purpos e of the final hearing because the three cases involved

identical witnesses and documentary evidence. However, the

parties and the undersigned agreed that a separate final order

would be issued in each case.

Prior to the evidentiary hearing in this case, the

Department filed a Motion to Dismiss the Petition and a Motion

for Summary Disposition Denying the Petition, and Petitioner

filed a motion to amend her Petition. All three motions were

denied.

The final hearing in this case was set for October 24,

200 3, but was cancelled. Subsequently, the hearing was

rescheduled several times after the parties requested and were

granted continuances before it was conducted, as noted above.

At hearing, Petitioner presented the testimony of five

witnesses: Joseph ine Kimball; Toni Kimball; Joy Young; Rolando

Santiago, Esquire; and Jon Pellet, Esquire. The Department

stipulated that Mr. Pellett was an expert witness with regard to

this type of proceeding. Petitioner offered and had ten

exhibits received into evid ence. The Department presented the

testimony of two witnesses: Jerry Hill, R. Ph., Bureau Chief of

Statewide Pharmaceutical Services; and Deborah Orr, a former

drug agent and investigator with the Department. The Department

offered and had 12 exhibits r eceived into evidence. The parties

had five joint exhibits received into evidence. 1/

A Transcript of the proceeding was filed on September 3,

2004. At the conclusion of the hearing, the time for filing

proposed recommended orders was set for ten day s from the filing

of the Transcript. Prior to that date, upon motion filed by the

Department, the time for filing proposed recommended orders was

extended until September 23, 2004. On September 22, 2004, the

parties filed an agreed motion to extend the t ime for filing

proposed recommended orders. The agreed motion was granted and

extended the time for filing proposed recommended orders until

October 8, 2004.

The Department and Petitioner filed proposed orders on

October 8, 2004, and October 12, 2004, re spectively. Both

proposed orders have been considered in preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at

hearing and on the entire record of this proceeding, the

following Findings of Fact ar e made.

1. The Department, through its Bureau of Statewide

Pharmaceutical Services (formerly the Bureau of Pharmacy

Services), is the state agency responsible for administering and

enforcing the Florida Drug and Cosmetic Act, Chapter 499,

Florida Statute s (1997), which includes the regulation of the

manufacture, promotion, and distribution of prescription drugs.

2. The Department initiated an Administrative Complaint in

August 1993 (1993 Administrative Complaint) while in the middle

of an investigation and after participating in a federal and

state force of agencies that executed a search and seizure of

the business establishment and of the home of James T. Kimball

and his wife, Josephine Kimball, both of which were located in

Wesley Chapel, Florida. Th e Kimballs' business establishment

was located at 29949 State Road 54 West in Wesley Chapel,

Florida ("business establishment" or "29949 State Road 54

West"). The search and seizure took place on May 12, 1993,

pursuant to federal warrants.

3. The 1993 A dministrative Complaint was issued to

Discovery Experimental and Development, Inc. ("DEDI"), located

at 29949 State Road 54 West and related to that company's

alleged sale of drugs that were not approved by the Federal Drug

Administration (FDA). After the 1993 Administrative Complaint

was filed, the Department continued to investigate the

activities of DEDI.

4. Deborah Orr (Agent Orr) began working for the

Department as a drug agent and investigator on or about 1993 and

was assigned to investigate the und erlying case until the case

culminated.

5. During the investigation, Agent Orr and other

Department agents, investigators, and officials reviewed

documents and other evidence seized during the search of the

business establishment and the home of the Kimba lls that tied

both James and Josephine Kimball to several corporations that

appeared to be connected to the manufacture and sale of certain

unapproved drugs.

6. Among the documents found and seized from the Kimballs'

home, pursuant to the 1993 warrant and reviewed by Agent Orr,

was the financial statement of James and Josephine Kimball dated

April 14, 1992. According to that document, James and Josephine

Kimball were 90 - percent owners of DEDI, which "develops

pharmaceuticals and chemicals for manufacturin g" and had an

assessed value of $1,000,000; James and Josephine Kimball were

90 - percent owners of ASTAK, Inc. ("ASTAK"), a company that

"manufactures custom order vitamins"; James T. Kimball was a

100 - percent owner of Discovery Experimental and Development ,

Mexico N.A. (DEDI of Mexico), a company that "manufacture[s]

pharmaceuticals" and ships to 12 countries; and James and

Josephine Kimball were 83 - percent owners of Discovery Tour

Wholesalers, Inc. (Tours), which owned the real property located

at 29949 St ate Road 54 West.

7. The Department's investigation indicated that several

companies controlled by the Kimballs had separate and distinct

functions related to the unlawful drug enterprise. For example,

it appeared that one company manufactured the unlawf ul drugs,

another took and filled orders from customers for the unlawful

drugs, and another put out promotional information and

literature about the unlawful drugs.

8. During the investigation, the Department determined

that most of the corporations invol ved in the unlawful drug

enterprise had common ownership and operated from 29949 State

Road 54 West.

9. The Department's investigation revealed that Josephine

Kimball provided administrative and secretarial services, as

well as "consultant services," for several corporations owned by

her husband, James T. Kimball, and/or owned jointly by Mr. and

Mrs. Kimball that were alleged and found to have been involved

in unlawful drug activities.

10. Prior to 1997, Agent Orr received and reviewed several

checks writ ten to Tours by companies operating out of the 29949

State Road 54 West location, specifically DEDI and ASTAK, both

of which were involved in the manufacture and distribution of

drugs that were not approved by the FDA. From a review of these

checks, it ap peared that Mrs. Kimball, in her individual

capacity or in connection with her role at Tours, had signature

authority on those corporate bank accounts because some of the

checks written to Tours by DEDI and by ASTAK, on their

respective bank accounts, were actually signed by Josephine

Kimball.

11. During the course of the Department's investigation,

Agent Orr obtained and reviewed a letter and check which

indicated that Josephine Kimball ordered and/or purchased

self - inking signature stamps for "personal ch ecks" for "R.R.

Riot" and "R.C. Brown." The letter, which effectively placed

the order for the self - inking signature stamps, was signed by

Josephine Kimball, as the representative of "Discovery," and

requested that the self - inking stamps be mailed to "Dis covery,

29949 S.R. 54 West, Wesley Chapel, Florida." Moreover, the

self - inking stamps were paid for by check on the account of DEDI

and bore the facsimile signature of "R.C. Brown" and the hand -

written signature of Josephine Kimball.

12. The R.R. Riot and the R.C. Brown signature stamps were

connected to DEDI of Mexico and B & B Freight Forwarding, Inc.

(B & B Freight), respectively.

13. According to documents reviewed by the Department, the

"R.R. Riot" signature stamp was used to establish a bank account

for DEDI of Mexico. A resolution, executed by James T. Kimball,

as secretary of DEDI of Mexico, authorized the bank at which

that company's account was established, to honor all checks or

drafts or other orders of payment drawn on the DEDI of Mexico

acco unt that bore or purported to bear only the facsimile

signature of R.R. Riot.

14. The self - inking stamp for R.C. Brown was to include

the facsimile signature of "R.C. Brown" and the following:

B & B Freight Forwarding

Pay to Order of Dis. Exp .& Dev. In c.

For Deposit Only

Lloyd's Bank Acct. #12032151

15. During its investigation, the Department obtained

bottles of liquid deprenyl from an individual in South Carolina

who had ordered the product from Discovery of Mexico, c/o B & B

Freight Forwarding " at 29949 State Road 54 West.

16. Both DEDI of Mexico and B & B Freight, which were

Respondents in the underlying proceedings and alleged to have

manufactured, sold, or otherwise distributed drugs that were not

approved by the FDA, in violation of Chapter 499, Florida

Statutes (1997). In that proceeding, B & B Freight was

determined to have violated the provisions of Chapter 499,

Florida Statutes (1997), as alleged in the Administrative

Complaint.

17. Prior to issuance of the 1997 Administrative

Complaint , Agent Orr wrote a report of her findings based on her

multi - year investigation and sent them to her supervisor, who

forwarded the report to Jerry Hill, R. Ph., Bureau Chief of the

Department's Bureau of Statewide Pharmaceutical Services.

18. Mr. Hill rev iewed Agent Orr's report and other

information and evidence obtained during the investigation. He

also talked to some of the Department agents and/or

investigators who participated in the investigation at various

times during the years the investigation w as on - going.

19. Based on his review of Agent Orr's report and related

information and evidence, Mr. Hill believed there were several

companies involved in promoting and/or advertising,

manufacturing, and distributing prescription drugs that were not

appro ved by the FDA. The specific unapproved drugs were

selegiline citrate (deprenyl) and some silvicidal products, some

of which had been found during inspections of the premises at

29949 State Road 54 West prior to issuance of the 1997

Administrative Complai nt.

20. After reviewing all of the information and documents

provided to him, Mr. Hill believed that some of the companies

were more involved in the illegal drug operation than others.

However, he also believed that all of the principals had some

involvem ent in the illegal activity.

21. A review of the documentation, particularly certain

checks, provided to Mr. Hill indicated that Josephine Kimball

had full signature authority on the checking accounts of several

of the corporations that the Department dete rmined were involved

in the illegal drug activity. Based on checks seized pursuant

to the federal search warrants, Mr. Hill determined that checks

from DEDI, written to Tours for consulting fees, were signed by

Mrs. Kimball. There was also documentation that Mrs. Kimball

signed checks from ASTAK that were written to Tours.

22. Based on the information and evidence Mr. Hill had

received, he believed that the corporations that were engaging

in the illegal drug activities involved two principal natural

perso ns, James and Josephine Kimball.

23. Mr. Hill believed that he had sufficient evidence to

tie Josephine Kimball and several of the companies, including

DEDI, DEDI of Mexico, ASTAK, and Tours, together. Given the

companies' common ownership, and Josephi ne Kimball's involvement

in those companies, Mr. Hill was concerned that if the

Department did not prosecute all the entities and individuals

involved in the operation, the illegal activity would continue

and the unapproved drugs would get into commerce.

2 4. After careful consideration of all the information and

evidence provided to him by Department investigators, agents,

and other Department officials familiar with and involved in the

investigation, Mr. Hill concluded that Josephine Kimball

participated i n the illegal drug enterprise and was, therefore,

in violation of Chapter 499, Florida Statutes (1997).

25. The Department expanded its administrative enforcement

action in the underlying case by the Administrative Complaint

dated June 24, 1997, based on i ts on - going investigation of

illegal activities taking place at the 29949 State Road 54 West.

Mr. Hill, on behalf of the Department, issued the 1997

Administrative Complaint, and that case was later assigned DOAH

Case No. 97 - 3836.

26. Pursuant to a Delega tion of Authority dated

February 19, 1997, Mr. Hill was authorized to initiate and

pursue to conclusion any legal or administrative action

authorized by Chapter 499, Florida Statutes (1997).

27. In the underlying administrative proceeding, after

taking and considering testimony and documentary evidence, the

Administrative Law Judge issued a Recommended Order finding that

the Department failed to prove the allegations against Josephine

Kimball by clear and convincing evidence and recommending that

the charg es against her be dismissed. However, the Recommended

Order made no finding that the Department participated in the

underlying proceeding against Petitioner for an improper

purpose.

28. With regard to the corporate Respondents in the

underlying proceeding , the Recommended Order found that

Discovery Distributing, Inc., DEDI, ASTAK, and B & B Freight,

violated the provisions of Chapter 499, Florida Statutes (1997),

as alleged in the underlying proceeding and recommended that

those Respondents be fined a tota l of more than $3.5 million

dollars for the violations.

29. The Department adopted the Recommended Order in the

underlying proceeding in its Final Order.

30. In this proceeding, Petitioner asserted that the

Department brought the underlying proceeding agai nst her for

"personal" reasons. In support of this assertion, Petitioner

presented the testimony of one witness, Petitioner's adult

daughter, Toni Kimball, who was also a Respondent in the

underlying proceeding. Toni Kimball testified that at some

point, Agent Orr and/or counsel for the Department told her that

the Department took the underlying action against Josephine

Kimball because of Mrs. Kimball's relationship with James T.

Kimball and that the case was "no longer business," but was

"personal."

31. Ms. Kimball's testimony is not credible or persuasive

and is, therefore, rejected.

32. Clearly, at the time the Department initiated the

underlying proceeding and participated in that proceeding, there

was sufficient evidence of Josephine Kimball's conne ction and

involvement with the companies engaged in the illegal drug

activities to bring and pursue the administrative action against

her. At the final hearing in the underlying proceeding, there

was voluminous evidence that appeared to tie Petitioner to the

corporate Respondents found to have engaged in the illegal drug

activity with which they were charged and that implicated her in

some of these activities.

33. Josephine Kimball and Tours, a company she operated,

was represented by Elliot Dunn, Esquire, in the underlying

proceeding, including and through the final hearing. Mr. Dunn

withdrew from the case prior to Petitioner's filing her Proposed

Recommended Order.

34. Mr. Dunn did not testify at this proceeding and no

time records related to his repres entation of Josephine Kimball

or any of the other Petitioners in the underlying proceeding

were available for review, inspection, or consideration.

35. Josephine Kimball did not pay Mr. Dunn for the legal

services that he provided. Instead, he was paid by ASTAK, one

of the nonprevailing parties in the underlying proceeding and,

later, by Strictly Supplements. There was never a contract

between Josephine Kimball and Mr. Dunn that defined the terms

and conditions of Mr. Dunn's legal representation on behalf of

Josephine Kimball. However, during the time Mr. Dunn

represented Josephine Kimball, he was in - house counsel for ASTAK

and/or DEDI, a job for which his annual salary was about

$52,000.

36. Petitioner's expert witness opined that a reasonable

hourly rat e for an attorney representing each of the

Petitioners, including Josephine Kimball was $175 to $350.

37. Petitioner's expert did not form an opinion as to the

total number of hours reasonably spent by Mr. Dunn representing

Josephine Kimball in the underly ing proceeding. Rather, the

expert testified that he utilized Rule Regulating Florida

Bar 4 - 1.5, which deals with the reasonableness of fees. Based

on the factors in that Rule, Petitioner's expert opined that

reasonable attorney's fees incurred by Joseph ine Kimball in the

defense of the underlying case are $50,000, assuming the hourly

rate of $175.

38. Rolando J. Santiago, Esquire, provided legal services

to Josephine Kimball in the post - hearing phase of the underlying

proceeding. Specifically, Mr. Santi ago reviewed the case file

and the record in the underlying case and prepared the Proposed

Recommended Order and related pleadings for Josephine Kimball.

39. Mr. Santiago's hourly rate is $175 and he spent

92 hours providing legal services to Josephine K imball in the

underlying proceeding. Therefore, Mr. Santiago's fee for the

legal work he performed for Josephine Kimball is $16,100.

40. In light of the findings and conclusions reached in

this Recommended Order, no findings are made or necessary

regardin g issues related to the reasonableness of the attorney's

fees, the quality of the evidence presented on that issue or any

other issues related to attorney's fees.

CONCLUSIONS OF LAW

41 . The Division of Administrative Hearings has

jurisdiction over the sub ject matter and parties to this

proceeding. §§ 120.595 and 120.57, Fla. Stat. (2003).

42. Petitioner seeks an award of attorney fees against the

Department under Section 120.595, Florida Statutes (2003),

claiming that the Department participated in the underlying

proceeding against her for an improper purpose.

43. Subsection 120.595(1), Florida Statutes (2003),

provides in pertinent part the following:

(1) CHALLENGES TO AGENCY ACTION PURSUANT

TO SECTION 120.57(1). --

(a) The provisions of this su bsection are

supplemental to, and do not abrogate, other

provisions allowing the award of fees or

costs in administrative proceedings.

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorney' s

fee to the prevailing party only where the

nonprevailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

(c) In proceedings pursuant to

s. 120.57(1), and upon motion, the

administrative law judge shall determine

whether any party participated in the

proceeding for an improper purpose as

defined by this subsection. In making such

determination, the administrative law judge

shall consider whether the nonprevailing

advers e party has participated in two or

more other such proceedings involving the

same prevailing party and the same project

as an adverse party and in which such two or

more proceedings the nonprevailing adverse

party did not establish either the factual

or le gal merits of its position, and shall

consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the nonprevailing

adverse p arty participated in the pending

proceeding for an improper purpose.

(d) In any proceeding in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate a nd shall determine the

award of costs and attorney's fees.

(e) For the purpose of this subsection:

1. "Improper purpose" means participation

in a proceeding pursuant to s. 120.57(1)

primarily to harass or to cause unnecessary

delay or for friv olous purpose or to

needlessly increase the cost of litigation,

licensing, or securing the approval of an

activity.

* * *

3. "Nonprevailing adverse party" means a

party that has failed to have substantially

changed the outcome of the proposed or fina l

agency action which is the subject of a

proceeding. In the event that a proceeding

results in any substantial modification or

condition intended to resolve the matters

raised in a party's petition, it shall be

determined that the party having raised the

issue addressed is not a nonprevailing

adverse party. The recommended order shall

state whether the change is substantial for

purposes of this subsection. In no event

shall the term "nonprevailing party" or

"prevailing party" be deemed to include any

pa rty that has intervened in a previously

existing proceeding to support the position

of an agency.

44. In order to prevail in this proceeding, Petitioner has

the burden to establish the elements of Section 120.595, Florida

Statutes (2003), by a preponder ance of evidence.

45. Here, it is undisputed that Petitioner was the

prevailing party in the underlying proceeding. Notwithstanding

Petitioner's status as a prevailing party, she is entitled to

reasonable attorney fees "only where the nonprevailing adver se

party has been determined by the administrative law judge to

have participated in the proceeding for an improper purpose."

See § 120.595(1), Fla. Stat. (2003).

46. Petitioner asserts that the Department's action in

this matter was for an improper purpose and cites to the

Department's initiating and/or participating in the underlying

proceeding for "personal" reasons as proof of the improper

purpose. However, given the evidence that established

Petitioner's close ties to and involvement in the fin ancial

matters of corporations alleged and found to have been engaged

in the unlawful advertisement, manufacture, and sale or

distribution of drugs which were unapproved by FDA, it was

reasonable for the Department to initiate and participate in the

admini strative proceeding against Petitioner.

47. The Findings of Fact set forth above make it clear

that the Department acted reasonably in participating in the

proceeding against Petitioner. The fact that the Recommended

Order and Final Order in the underlyi ng proceeding determined

that the Department failed to prove the allegations against

Josephine Kimball by clear and convincing evidence, does not

establish that it acted improperly. To the contrary, the weight

of credible evidence establishes that the Dep artment's

participation in the proceeding against Petitioner was

reasonable.

48. Clearly, based on the outcome of the underlying

proceeding, with respect to Petitioner, the Department was the

losing party. However, simply being the losing party does not

m ake one liable for payment of attorney fees and costs under

Section 120.595, Florida Statutes (2003). Rather, to be liable

for attorney fees, the party must be a "nonprevailing adverse

party" within the meaning of Subsection 120.595(1)(e)3., Florida

Statu tes (2003).

49. "Nonprevailing adverse party" is defined to be a party

that has failed to substantially change the outcome of the

agency's proposed action. Therefore, the Department, by

definition, cannot be a nonprevailing adverse party because it

is th e agency that is proposing to take action, not a party that

is trying to change the proposed action. See Sellars v. Broward

County School Board v. Department of Juvenile Justice , Case No.

97 - 0175F (DOAH July 3, 1997); Palacious v. Department of

Business a nd Professional Regulation , Case Nos. 99 - 4163 and

99 - 4164 (DOAH November 20, 2000); HHCI Limited Partnership v.

Agency for Health Care Administration , Case No. 02 - 1951 (DOAH

November 21, 2002); and Crist, as Commissioner of Education v.

Pringle , Case No. 0 2 - 4430 (DOAH November 6, 2003).

50. Based on the foregoing, the Department is not a

"nonprevailing adverse party" within the meaning of Subsection

120.595(1), Florida Statutes (2003). Therefore, Petitioner

cannot recover attorney fees from the Department , regardless of

the purposes for which it participated in the proceeding.

51. Assuming arguendo , that the Department is a

"nonprevailing adverse party" within the meaning of Subsection

120.595(1)(e)3., Florida Statutes (2003), for reasons noted in

the F indings of Fact above, the Department did not participate

in the underlying administrative proceeding against Petitioner

for improper purposes. Thus, Petitioner would still not be

entitled to recover reasonable attorney fees and costs from the

Department.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner Josephine Kimball's Petition

for Attorney Fees and Costs be DISMISSED.

DONE AND ENTERED this 25th day of January, 2005, in

Tallahasse e, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of January, 2005.

ENDNOTE

1/ The Transcript and exhibits in this case will be forwarded to

the Department of Health along with th is Recommended Order. The

Transcript and exhibits also comprise the record in the

previously - issued Final Order in Case Nos. 03 - 2754 and 03 - 2806.

COPIES FURNISHED :

Robert P. Daniti, Esquire

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahasse e, Florida 32399 - 1703

Brandon L. Kolb, Esquire

Discovery Tours, Legal Department

35202 State Road 54

Zephyrhills, Florida 33541

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahassee, Florida 32399 - 1701

Quincy Page, Acting General Counsel

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.