08-003510RX Anand Narayanan vs. Board Of Pharmacy Status: Closed DOAH Final Order on Thursday, July 30, 2009.

Summary: Fourteen Petitioners, who filed separate rule challenges with identical issues, were not entitled to the statutory limit of fees for each petition. The fees were awarded as if one petition was filed.

JOHN H. NEAMATALLA, )

)

Petitioner, )

)

vs. ) Case No. 08-2732RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

SAMAD MRIDHA, )

)

Petitioner, )

)

vs. ) Case No. 08-2733RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

SE YOUNG YOON, )

)

Petitioner, )

)

vs. ) Case No. 08-2734RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

SAURIN MODI, )

)

Petitioner, )

)

vs. ) Case No. 08-2821RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

DEEPAKKUMAR SHAH, M.PH., )

)

Petitioner, )

)

vs. ) Case No. 08-2823RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

MIJEONG CHANG, )

)

Petitioner, )

)

vs. ) Case No. 08-2824RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

NABIL KHALIL, )

)

Petitioner, )

)

vs. ) Case No. 08-3298RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

HADYA ALAMEDDINE, )

)

Petitioner, )

)

vs. ) Case No. 08-3347RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

BALAJI LAKSHMINARAYANAN, )

)

Petitioner, )

)

vs. ) Case No. 08-3488RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

ANAND NARAYANAN, )

)

Petitioner, )

)

vs. ) Case No. 08-3510RX

)

BOARD OF PHARMACY, )

)

Respondent. )

)

FINAL ORDER ON ATTORNEY’S FEES

Pursuant to notice, a final hearing was held in this case on

April 16, 2009, in Orlando, Florida, on Petitioners’ motions for

attorney’s fees and costs before Susan B. Harrell, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: George F. Indest, III, Esquire

Matthew R. Gross, Esquire

Michael L. Smith, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

For Respondent: Deborah B. Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

The issues in this case are the amount of attorney’s fees

and costs to be awarded to Petitioners pursuant to

Section 120.595, Florida Statutes (2007); 1 whether Petitioners are

entitled to fees and costs pursuant to Subsections 57.105(5),

120.569(2)(e), and 120.595(4), Florida Statutes; and, if so, what

amount should be awarded.

PRELIMINARY STATEMENT

On October 16, 2008, a Partial Final Order was entered in

this case on a portion of the merits of the rule challenge.

Portions of the petitions were placed in abeyance pending the

outcome of the rulemaking process. The Partial Final Order held

that Petitioners, Vipul Patel; Miriam L. Hernandez; Mirley

Aleman-Alejo; Valliammai Natarajan; John H. Neamatalla; Samad

Mridha; Se Young Yoon; Saurin Modi; Deepakkumar Shah, M.PH.;

Mijeong Chang; Nabil Khalil; Hadya Alameddine; Balaji

Lakshminarayanan; and Anand Narayanan, were entitled to

attorney’s fees and costs pursuant to Subsection 120.595(3),

Florida Statutes, and jurisdiction was retained to determine the

amount of attorney’s fees and costs. Petitioners filed motions

to determine whether fees could be awarded pursuant to other

statutes and to determine the amount of attorney’s fees and costs

to be awarded.

The final hearing was scheduled for February 19, 2009. The

parties filed a joint motion for a continuance. The final

hearing was re-scheduled for April 16, 2009.

The parties entered into a Joint Pre-hearing Stipulation and

agreed to certain facts contained in Section E of the Joint

Pre-hearing Stipulation. To the extent relevant, those facts

have been incorporated into this Final Order on Attorney’s Fees.

At the final hearing, Petitioners called the following

witnesses: Matthew Gross, George F. Indest, and Sandra K.

Ambrose. Petitioners’ Exhibits 1 through 6 and 9 through 75 were

admitted in evidence.

Respondent, Board of Pharmacy, called Edwin A. Bayo as its

witness. Respondent’s Exhibit 1 was admitted in evidence.

The Transcript was filed on April 29, 2009. The parties

filed their Proposed Final Orders on May 12, 2009.

FINDINGS OF FACT

1. Each of the 14 Petitioners filed separate rule

challenges, challenging the validity of Florida Administrative

Code Rule 64B16-26.2031 and challenging eight statements of

policy of the Board of Pharmacy, which statements had not been

adopted as rules.

2. Prior to the filing of his or her rule challenge, each

Petitioner had graduated from a pharmacy school located outside

the United States and had taken and passed the Foreign Pharmacy

Graduate Equivalency Examination, the Test of Spoken English, and

the Test of English as a Foreign Language. Petitioners had been

issued Intern Registrations by the Board of Pharmacy. All but

two of the Petitioners had submitted an application to be

admitted to the professional licensure examination. Those

applications had been denied. All Petitioners, including the two

Petitioners who had not submitted an application, had applied to

the Board of Pharmacy for a variance or waiver to allow them to

sit for the professional licensure examination. The Board of

Pharmacy denied each Petitioner’s application for a variance or

waiver. Each Petitioner had been represented by The Health Law

Firm in their applications for a variance or waiver and wanted

The Health Law Firm to continue to represent them in the rule

challenge. When asked why the Petitioners had contacted The

Health Law Firm to represent them, an attorney for The Health Law

Firm stated:

I think they have a network where word just

gets around. And they-–I believe they even

had some sort of list serve or Web site where

they had all noted that they were being

treated unfairly, and so they knew each

other. And maybe our name got out on that or

something. But they-–they all seemed to know

each other-–seemed to know each other.

Additionally, The Health Law Firm had sent out letters soliciting

the foreign pharmacy graduates to join the rule challenge. An

attorney for The Health Law Firm was not sure whether the letter

had been posted on the web site for the foreign pharmacy

graduates.

3. In several of the invoices submitted by The Health Law

Firm, there was a charge of $20.00 for a “[t]elephone conference

with client’s colleagues who are in the same situation and

interested in filing petitions for waivers and joining the rule

challenge.” 2 Thus, the circumstances surrounding the

representation of Petitioners by The Health Law Firm do not

demonstrate that it was a coincidence that Petitioners just

happened to pick The Health Law Firm to represent them in the

rule challenges.

4. The Health Law Firm decided to file 14 separate

petitions instead of one petition with 14 petitioners. The

reason for the filing of the separate petitions was to increase

the amount of attorney’s fees which could be awarded. Given the

inexperience of attorneys at The Health Law Firm with rule

challenges and the difficulty in understanding the speech of

Petitioners, who received their pharmacy training in countries

other than the United States, The Health Law Firm felt that it

was not economically feasible to pursue the rule challenge for

$15,000.00.

5. Petitioners had a common goal, i.e. to be allowed to sit

for the professional licensure examination. The wording of each

of the petitions was essentially the same except for the names of

the individual Petitioners. Because the issues were the same for

all the rule challenges, the rule challenges were consolidated

for final hearing.

6. No final hearing was held in the consolidated cases.

The parties agreed that, based on the parties’ Joint Pre-hearing

Stipulation, there were no disputed issues of material fact and

agreed to file proposed final orders addressing each party’s

position regarding the application of the law to the stipulated

facts. The Board of Pharmacy conceded that Florida

Administrative Code Rule 64B16-26.2031 was an invalid exercise of

delegated legislative authority, and Petitioners were determined

to prevail on the issue of the invalidity of the existing rule.

7. On the challenge to the Board of Pharmacy’s policy

statements, four statements were determined to meet the

definition of a rule. The Board of Pharmacy conceded in the

parties’ pre-hearing stipulation that the instructions in the

Foreign Pharmacy Graduate Application for Licensure by

Examination, directing applicants not to apply prior to obtaining

all the required internship hours, constituted a non-rule policy.

On August 1, 2008, in response to its concession that some of the

statements or policies at issue were invalid non-rule policies,

the Board of Pharmacy had published, in the Florida

Administrative Law Weekly, a Notice of Rule Development for

Florida Administrative Code

Rule 64B16-26.2031. On August 21, 2008, the Board of Pharmacy

approved changes to Florida Administrative Code Rule 64B16-

26.2031, eliminating the Foreign Pharmacy Graduate Examination

Committee (FPGEC) requirement, incorporating by reference the

Foreign Graduate Examination Application, and stating the time

frames for the application of Florida Administrative Code

Rule 64B16-26.2031. Pursuant to Subsection 120.56(4)(e), Florida

Statutes, the portion of the petitions dealing with the

statements on which the Board of Pharmacy did not prevail was

abated pending the rulemaking process.

8. Petitioners did not prevail on four of the policy

statements they challenged. These were the policy statements

which the Board of Pharmacy contested.

9. Based on the invoices submitted, the parties attempted

to settle the case. Essentially, the Board of Pharmacy had

started rule development which eliminated the requirement in the

existing rule which caused it to be invalid and which dealt with

the unpromulgated rule issues that the Board of Pharmacy had

conceded in the Joint Pre-hearing Stipulation.

10. Petitioners wanted to be able to sit for the National

Association of Pharmacy Licensure Examination (NAPLEX) and the

Multistate Pharmacy Jurisprudence Examination (MPJE). All

Petitioners who had a Foreign Pharmacy Graduate Application for

Licensure by Examination pending on August 21, 2008, were

approved by the Board of Pharmacy to sit for the NAPLEX and the

Florida version of the MPJE. Thus, by August 21, 2008, those

Petitioners had reached their goal.

11. The impediment to settling the cases was the amount of

attorney’s fees that should be awarded to Petitioners. There was

no undue delay by the Board of Pharmacy or anything which could

be attributed to the Board of Pharmacy as needlessly increasing

the cost of litigation. The Board of Pharmacy correctly

contended that the amount of fees requested by Petitioners was

unreasonable.

12. The Partial Final Order entered in the underlying rule

challenges held that Petitioners are entitled to an award of

attorney’s fees and costs pursuant to Subsection 120.595(3),

Florida Statutes. The Board of Pharmacy was not substantially

justified in promulgating the challenged rule in the underlying

case and did not demonstrate that special circumstances existed

to warrant the promulgation of the challenged rule.

13. The Board of Pharmacy did not demonstrate that the

statements which constituted unpromulgated rules are required by

the Federal Government to implement or retain a delegated or

approved program or to meet a condition to receipt of federal

funds.

14. Each Petitioner entered into a contingency fee contract 3

with The Health Law Firm to represent him or her in a rule

challenge. The parties have agreed that the hourly rate of

$350.00 per hour for the services of George F. Indest, III,

Esquire, is reasonable and fair under the circumstances. The

parties have agreed that some of the hourly rates being claimed

for the other attorneys and employees of The Health Law Firm are

reasonable and fair under the circumstances. Those fees are

$200.00 and $150.00 per hour for the associate attorneys, $80.00

per hour for the paralegals, and $70.00 per hour for the legal

assistants. There were a few entries in the invoices made by

senior attorneys for whom the rate charged is $300.00 per hour.

Based on the rates charged for the senior partner and the

associate attorneys, an hourly rate of $300.00 for a senior

attorney is reasonable.

15. The names of the attorneys and staff and the respective

hourly rate amount for each are listed below. In discussing the

reasonableness of the fees claimed in the various invoices, the

attorneys and staff will be referred to by their initials as

listed in the invoices.

Initials N a m e H o u r l y Rate

GFI George F. Indest, III, Senior Partner $350.00

MLS Michael L. Smith, Senior Attorney $300.00

JK Joanne Kenna, Senior Attorney $300.00

TJJ Teresa J. James, Attorney $200.00

MRG Matthew R. Gross, Attorney $150.00

JP Justin Patrou, Law Clerk $100.00

GJ Gail Joshua, Senior Paralegal $80.00

PD Pamela Dumas, Litigation Clerk $80.00

SF Sandra Faiella, Paralegal $80.00

RS Rebecca Simmons, Paralegal $80.00

AE Alexa Eastwood, Legal Assistant $70.00

SE Shelly Estes, Legal Assistant $70.00

16. The amount of fees claimed by each Petitioner for

representation by The Health Law Firm for the rule challenge is

listed below. These amounts are based on the individual invoices

and the first consolidated invoice: 4

Name A m o u n t

Vipul Patel $15,212.36

Miriam Hernandez $15,683.36

Mirley Aleman-Alejo $11,469.36

Valliammai Natarajan $5,074.36

John H. Neamatalla $11,215.36

Samad Mridha $13,650.36

Se Young Yoon $12,292.36

Saurin Modi $10,093.36

Deepakkumar Shah, M.Ph. $11,764.36

Mijeong Chang $12,528.36

Nabil Khalil $10,272.36

Hadya Alameddine $5,313.36

Balaji Lakshminarayanan $4,585.36

Anand Narayanan $4,218.36

T o t a l $ 1 4 3 , 3 7 2 . 0 4

17. Sandra Ambrose testified as an expert witness on behalf

of Petitioners. Her opinion is that the amounts claimed are

based on a reasonable number of hours expended in the litigation

of the rule challenge. However, Ms. Ambrose has never

represented a client in a rule challenge. It was Ms. Ambrose’s

opinion that the difficulty in the cases was a result of the

number of Petitioners not the issues to be litigated. Having

reviewed all the invoices submitted in these cases, the

undersigned cannot credit Ms. Ambrose’s testimony that the fees

are reasonable.

18. The Board of Pharmacy argues that the amount of fees

and costs should be limited to the amount expended in the

petition brought by the first Petitioner, Vipul Patel. The

expert who testified for the Board of Pharmacy did not give a

definite amount that he considered to be a reasonable fee in

these cases.

19. Prior to the final consolidation of all 14 rule

challenges, The Health Law Firm invoiced for its services and

costs by individual Petitioner. After all 14 rule challenges

were consolidated, The Health Law Firm invoiced for its time and

costs via a consolidated invoice. The undersigned has

painstakingly reviewed all the invoices that were submitted to

support Petitioners’ claims for fees and costs in the rule

challenges and finds the fees requested are not reasonable.

20. On May 15, 2008, the invoices for Case Nos. 08-2733RX

contained the following entry for MRG. “Review/analyze final

order. Strategize regarding final order.” The final order

appears to be related to a petition 5 for a waiver or variance

before the Board of Pharmacy, and the entry is deleted. This

conclusion is supported by the entry in the invoice dated May 29,

2008, relating to a telephone conference with the client relating

to a re-petition for waiver.

21. In Case No. 08-2730RX, there is an entry on May 27,

2008, for .10 hours for MRG, but no service is listed. That

entry is deleted.

22. On June 6, 2008, MRG entered .50 hours each in Case

Nos. 08-2728RX, 08-2729RX, 08-2732RX, 08-2733RX, 08-2734RX,

08-2821RX, 08-2823RX, 08-2824RX, and 08-3298RX. The entry

stated: “Continue preparing rule challenge and waiver.” The

Health Law Firm represented the Petitioners in four of these

cases before the Board of Pharmacy on June 10, 2008, on their

petitions for a wavier or variance. The invoice does not

delineate the amount of time that was spent on the rule challenge

and the amount of time that was spent on the waiver cases.

Therefore, the time is divided equally and .25 hours in each case

is charged toward the rule challenge.

23. On June 9, 2008, in Case Nos. 08-2733RX, 08-2730RX,

08-2731RX, 08-2734RX, 08-2729RX, and 08-2732RX, the senior

partner of The Health Law Firm entered .30 hours for each case,

which stated: “Prepare letter to Division of Administrative

Hearings forwarding Petition for Rule Challenge to be filed.”

The letter which accompanied the petitions in these cases stated:

Dear Clerk:

Attached for filing, please find a separate

Petition to Determine the Invalidity of an

Existing Agency Rule and the Invalidity of

Agency Policy and Statements defined as

Rules, for each of the individuals listed

below:

Miriam L. Hernandez

Mirley Aleman-Alejo

Se Young Yoon

John H. Neamatalla

Valliammai Natarajan

Md. A. Samad Mridha

Thank you for your assistance in this

matter.

For this letter, Petitioners are claiming 1.8 hours or $630.00.

This is not reasonable. On the same date, GFI prepared a similar

transmittal letter in Case No. 08-2728RX and listed .3 hours,

which is a reasonable amount for the preparation of such a

letter. Thus, the preparation of the transmittal letter on

June 9th for Case Nos. 08-2733RX, 08-2730RX, 08-2731RX,

08-2734RX, 08-2729RX, and 08-2732RX is reduced to .3 hours, which

is prorated to .05 hours for those cases.

24. The senior partner in The Health Law Firm claims

23.6 hours during June 3 through 5, 2008, for the following

service which was entered on the invoices for Case

Nos. 08-2730RX, 08-2729RX, 08-2731RX, 08-2823RX, 08-3298RX,

08-2821RX, 08-2728RX, 08-2734RX, 08-2733RX, and 08-2824RX.

Conduct legal research, review statutes,

cases (approximately 28 cases reviewed and

analyzed) and two (2) different Florida

Administrative Law legal treatises regarding

rule challenges and challenging agency

statements not adopted as rules, in order to

properly prepare Petition for Formal Rule

Challenge in case. Research legal issues

including administrative agency rules

exceeding authority granted in statutes,

retroactive applications of agency rules,

adding requirements to licensure requirements

through administrative rules when those

requirements are not contained in the

statute. Review Rules of Procedure and

Chapter 120 to determine contents of Rule

Challenge Petition. Begin reviewing and

revising draft for Rule Challenge in case.

(Note: Only pro-rata portion of this time

charged to each case.)

The total amount of fees claimed for this research is $8,260.00.

GFI testified that he had never done a rule challenge prior to

filing the petitions in the instant cases. His fees for research

due to his lack of knowledge of the basics of a rule challenge

should not be assessed against the Board of Pharmacy. A

reasonable amount of time for his research is four hours. Thus,

the amount for this legal research prorated among the ten cases

for which it was listed is .4 hours.

25. On July 19, 2008, the senior partner of The Health Law

Firm entered .60 hours in ten of the rule challenges for

reviewing the Transcripts of the Board of Pharmacy meetings for

February 8 and April 5, 2008, and preparing a notice of filing

the Transcripts with the Division of Administrative Hearings.

Six hours to review the Transcripts and prepare a notice of

filing is not reasonable. Three hours is determined to be a

reasonable amount of time for this task, and that amount is

prorated among the ten cases in which the charge was made.

26. On June 10, 2008, members of The Health Law Firm

attended a Board of Pharmacy meeting at which they represented

foreign pharmacy graduates who had petitioned the Board of

Pharmacy for a waiver or variance. In Case Nos. 08-2821RX,

08-3298RX, and 08-2733RX, the senior partner listed .90 hours for

each case for preparation for the June 10th Board of Pharmacy

meeting. The preparation related to the petitions for variances

or waivers and should not be assessed for the instant cases.

27. For June 10, 2008, JP listed .70 hours each in Case

Nos. 08-2823RX, 08-2732RX, 08-2821RX, and 08-2733RX for

attendance at the Board of Pharmacy meeting. For June 10, 2008,

GFI entered 1.4 hours for attendance at the Board of Pharmacy

meeting. The entries for attending the Board of Pharmacy meeting

related to the petitions for waivers and should not be assessed

in the instant cases.

28. For June 19, 2008, the senior partner made the

following entry in the invoices for Case Nos. 08-2728RX,

08-2729RX, 08-2732RX, 08-2733RX, 08-2734RX, 08-2821RX, 08-2823RX,

and 08-2824RX:

Travel to Boca Raton to meet with other

health care lawyers and discuss issues in

common on these cases and others. Discuss

legal strategies that worked in the past and

legal strategies to be avoided. Return from

Boca Raton.

Each entry was for one hour, for a total of eight hours claimed

for a trip to Boca Raton, which equates to $2,880.00. Based on

the entry, it seems that the trip included discussions of other

cases that The Health Law Firm was handling or that other

attorneys were handling. Additionally, there was no rationale

for having to travel to Boca Raton to discuss the issues, and

fees for such travel should not be awarded. A reasonable amount

of time for discussion of the case with other attorneys by

telephone would be .80 hours. The prorated amount of time for

each case listed is .10 hours.

29. On May 27, 2008, SF made a .30-hour entry in Case

No. 08-2824RX for reviewing the agenda of the June 10th Board of

Pharmacy meeting as it related to the client in Case

No. 08-2824RX. The entry related to the client’s petition for a

waiver, which was heard at the June 10th meeting and should be

deleted.

30. On May 30, 2008, in Case No. 08-2824RX, SF made

a .40-hour entry for drafting a letter to client with retainer

agreement. The entry is clerical and should be deleted.

31. On June 18, 2008, an entry was made in the invoice in

Case No. 08-2731RX, which stated: “Telephone call from husband

of our client indicating that they want us to close this matter

and that they do not wish to pursue it any further; follow-up

memorandum to Mr. Indest regarding this.” Charges continued to

be made to the client through July 16, 2008. Based on the entry

to the invoice on June 18, 2008, no further charges should have

been made to the client except for the filing of a voluntary

dismissal of the rule challenge for the client. However, no

voluntary dismissal was filed. Based on the absence of any

further charges to the client after July 18, 2008, it is

concluded that the client did wish not to proceed with her rule

challenge. Any charges by The Health Law Firm after June 18,

2008, in Case No. 08-2731RX will not be assessed against the

Board of Pharmacy as it relates to the rule challenge.

32. On June 19, 2008, TJJ made the following .10-hour entry

in ten of the cases: “Review June 10, 2008, Board of Pharmacy

Agenda. Telephone conference with Court Reporter, Ms. Green,

ordering transcript of the June 10, 2008, meeting.” An hour for

reviewing an agenda and ordering a transcript is not reasonable.

A reasonable amount of time is .40 hours, and such time is

prorated to the ten cases in which it is charged.

33. On June 20, 2008, in Case Nos. 08-2823RX and 08-2824RX,

TJJ made a .80-hour entry which stated: “Prepare draft motion

for consolidation.” No motion was ever filed and would not have

been necessary since the parties had agreed at the pre-hearing

conference that the rule challenges would be consolidated. The

time for this service should be deleted.

34. On July 10, 2008, TJJ made the following .10-hour entry

in several of the cases: “Review prehearing instruction orders

and amended orders to determine respondent’s deadline to serve

discovery responses.” The entry is duplicative of services

provided by MRG on July 8, 2008, and should be deleted.

35. On July 15, 2008, in Case Nos. 08-2729RX, 08-2728RX,

08-2730RX, 08-2732RX, 08-2733RX, 08-2734RX, 08-2821RX, 08-2823RX,

08-2824RX, and 08-3298RX, TJJ had .40 hours for a total of

4.00 hours for the following entry:

Prepare Petitioners’ Motion to Compel

Discovery and assemble and copy documents to

be attached to Motion. Prepare facsimile

coversheets and transmit the Motion to the

attorney for the Board of Pharmacy,

Ms. Loucks, and to the clerk for the Division

of Administrative Hearings.

The copying, preparing facsimile coversheets, and transmitting

the motion are clerical tasks. The entries are reduced to .20

hours due to the clerical nature of the tasks, which leaves a

total of two hours for preparing a simple motion to compel. The

time for the preparation of the motion to compel is not

reasonable and is reduced to .10-hour for each entry.

36. On July 22, 2008, the last Order consolidating all the

cases was filed. The Order consisted of four paragraphs. On

July 29, 2008, TJJ entered .10 hours in Case Nos. 08-2733RX, 08-

2730RX, 08-2734RX, 08-2728RX, 08-2729RX, 08-2732RX, 08-2824RX,

08-3510RX, 08-3488RX, 08-3347RX, 08-2823RX, 08-3298RX, and 08-

2821RX, and each entry stated: “Review order of consolidation

filed on July 22, 2008, for common information needed for all

cases.” Thus, Petitioners are claiming a total of 1.3 hours or

$260.00 to review a four-paragraph Order of Consolidation. This

claim is not reasonable. A reasonable amount of time to review

the Order was .10 hours, and the time shall be prorated among the

13 cases for which it was claimed at .08 hours each.

37. On July 24, 2008, TJJ made an entry of .10 hours in ten

of the cases which stated:

Telephone conference with the clerk of the

District Court of Appeal, First District to

find out the start time of oral arguments on

Custom Mobility (rule challenge case).

Request information from clerk regarding how

to listen to oral arguments online.

Observing this oral argument will allow us to

better prepare our case for possible appeal.

First, a one-hour telephone conversation with the Clerk of

District Court of Appeal to ascertain the time for an oral

argument and to learn how to listen to oral arguments online is

not reasonable. Second, it is not reasonable to charge the Board

of Pharmacy with a call to the District Court of Appeal in the

instant cases, even if the amount of time for the call had been

reasonable. The one-hour charge for $200.00 for a telephone call

is deleted.

38. On July 30, 2008, TJJ made an entry of .10 hours in 13

of the rule challenges. The entry stated: “Listen to oral

arguments presented before District Court of Appeals, First

District, in Custom Mobility case (rule challenge case).” The

oral argument was not related to the instant rule challenges and

should not be charged to the Board of Pharmacy. The 1.3 hours or

$260.00 claim for listening to an oral argument is deleted.

39. On August 4, 2008, TJJ made the following .10-hour

entry in 13 of the cases: “Review Joint Motion for Abeyance and

Order Canceling Hearing and Placing Cases in Abeyance. Calendar

deadlines regarding same.” The time of 1.3 hours for reviewing

the simple motion and Order is not reasonable. Calendaring is a

clerical task. The time for this service is reduced to .01 hours

for each entry.

40. On August 5, 2008, TJJ made the following .10-hour

entry in 13 of the cases: “Review Respondent’s Objections and

Responses to Petitioners’ Second Set of Interrogatories and

Respondent’s Objections to Petitioners’ Second Set of Requests

for Admissions.” The objections were that the interrogatories

and requests for admissions exceeded 30. The time of 1.3 hours

for reviewing the pleadings is not reasonable. The time for this

service is reduced to .04 for each entry.

41. Petitioners had scheduled the depositions of Rebecca

Poston and Daisy King for July 18, 2008. On July 17, 2008,

Petitioners filed notices canceling the depositions. On July 17,

2008, PD entered .10 hours in ten of the rule challenges for the

following entry:

Telephone conference with Accurate Stenotype

Reporters regarding cancellation of

depositions of Daisy King and Rebecca Poston

on July 18, 2008 and delay transcription of

depositions of Erika Lilja and Elizabeth

Ranne due to potential settlement.

It is not reasonable to charge an hour to cancel depositions with

the court reporter. A reasonable amount of time would be

.10 hours, which is prorated to the ten cases to which it is

charged.

42. PD prepared the notice of the canceling of the

deposition of Ms. Poston and the notice of the canceling of the

deposition of Ms. King. Entries were made in ten of the cases

for time for preparing the notices. The total time for preparing

the two notices by PD was 1.45 hours. The time is not

reasonable. A reasonable time to prepare two notices of

canceling depositions would be .40 hours, which is prorated among

the ten cases in which it was charged.

43. One of the issues on which Petitioners did not prevail

in the rule challenges was the issue of retroactive application

of the rule. There are entries totaling 3.4 hours for JP for

preparation of a memorandum dealing with the retroactive

application of a rule issue. GFI entered .30 hours for the same

issue. The time relating to the retroactive application issue is

deleted. On April 19, 2008, MRG entered .20 hours each in

several cases, which related to the rule challenge and

retroactive application issue. That time is reduced by half. On

May 6, 2008, MRG made .60-hour entries in Case Nos. 08-2728RX,

08-2729RX, 08-2730RX, 08-2732RX, 08-2733RX, 08-2734RX, 08-2821RX,

08-2823RX, 08-2824RX, and 08-3298RX, which showed the preparation

of three sections of the petition. One of the sections dealt

with the retroactive application issue, and the entries are

reduced by .20 hours for that issue.

44. The invoices demonstrated that a considerable amount of

time was charged for legal assistants and paralegals. Much of

this time was for clerical tasks.

45. SE is identified in Petitioners’ exhibits as a legal

assistant. The majority of the entries by SE dealt with the

photocopying, labeling, organizing, indexing, and filing

documents. These services performed by SE are clerical and, as

such, cannot be included in an award of attorney’s fees.

46. RS is identified in Petitioners’ exhibits as a

paralegal/legal assistant. The majority of the entries in the

invoices for RS deal with receiving, reviewing, labeling,

indexing, scanning, summarizing, and calendaring pleadings and

orders that were received in the cases. These services are

clerical and, as such, cannot be included in an award of

attorney’s fees.

47. Petitioners in Case Nos. 08-2728RX, 08-2732RX, and

08-2733RX each claimed .30 hours for RS for the following service

on April 30, 2008:

Received and reviewed letter from Department

of Health regarding our Public Records

Request dated April 28, 2008 relating to

client’s case. Index document for filing and

scanning for use of attorneys at hearing.

However, .90 hours for reviewing and indexing a letter is not

reasonable and is clerical in nature.

48. On June 17, 2008, in Case No. 08-2730RX, RS entered

.60 hours for preparing, copying, and sending a letter to the

client forwarding a copy of the Order of Assignment. That entry

is reduced to .30 hours, since at least half of the time appeared

to be for clerical tasks.

49. AE, who is identified as a legal assistant in

Petitioners’ exhibits, has numerous entries in the invoices for

receiving, indexing, filing, calendaring, and providing pleadings

and orders to clients. Those services are clerical and, as such,

cannot be included in an award of attorney’s fees.

50. In Case No. 08-2728RX, PD, identified in Petitioners’

exhibits as a paralegal, made entries on June 16 and June 25,

2008, for .30 hours each. These entries were to update the

litigation schedule with the hearing date. The entry is clerical

and, as such, cannot be included in an award of attorney’s fees.

51. SF, who is identified in Petitioners’ exhibits as a

paralegal/legal assistant, made an entry for .30 hours in Case

No. 08-2728RX on June 26, 2008, and in Case No. 08-2732RX on

June 11, 2008, for forwarding orders to the client. An entry was

made on July 10, 2008, in Case No. 08-2728RX and on June 18,

2008, in Case No. 08-2730RX for .30 hours for processing the

retainer package. Additionally, SF had entries for organizing

and filing transcripts and orders. Such services are clerical

and, as such, cannot be included in an award of attorney’s fees.

52. In Case No. 08-3488RX, SF made a .30-hour entry on

June 30, 2008, for updating the parties list and document file

and a .50-hour entry on June 26, 2008, for completing opening

procedures. In the same case, SF made two entries on July 7,

2008, for a total of 1.5 hours for preparing a retainer package

and sending it to the client. These tasks are clerical.

53. On June 24, 2008, SF made the following .30-hour entry

in 11 of the cases: “Finalize and forward Joint Motion for

Continuance of Final Hearing to client in this matter.” These

entries are deleted; as they represent clerical tasks and an

unreasonable amount of time to finalize a motion for continuance

for which GFI had charged 1.1 hours for preparing the motion.

54. In several cases JP, identified as a law clerk, made

entries on July 15, 2008, for .30-hour for creating, numbering,

and copying exhibits. Such service is clerical.

55. On July 30, 2008, PD made the following .20-hour entry

in 13 of the cases:

Prepare Petitioners’ Notice of Service of

Second Set of Interrogatories and Certificate

of Filing and Service. Prepare

correspondence to Debra Loucks, attorney for

Board of Pharmacy regarding filing and

Service of Petitioners’ Fourth Set of Request

to Produce and Second Set of Interrogatories.

However, 2.6 hours is not a reasonable amount of time to prepare

a notice of service of discovery and a transmittal letter to

opposing counsel. A reasonable amount of time to prepare such

documents is .50 hours, and the time is prorated among

the 13 cases.

56. On July 28, 2008, PD made the following .10-hour entry

in 13 of the cases:

Prepare Notice of Filing Videotaped

Depositions of Elizabeth Ranne and Erika

Lilja. Prepare draft of Notice of Filing

Deposition Transcript of Elizabeth Ranne.

However, 1.3 hours is an unreasonable amount of time to prepare

two notices of filing depositions. A reasonable amount of time

is .40 hours, and that amount is prorated among the 13 cases.

57. On June 17, 2008, PD made the following .20-hour entry

in each of the 11 cases:

Prepare Petitioners’ Notice of Service of

First Set of Interrogatories to Respondent

and Certificate of Filing and Service.

Prepare correspondence to Debra Loucks,

attorney for Board of Pharmacy, regarding

filing and service of Petitioners’ First Set

of Request to Produce, Petitioners’ First Set

of Request for Admissions and Petitioners’

First Set of Interrogatories.

However, 2.2 hours is an unreasonable amount of time to prepare a

notice of service of discovery and a transmittal letter to

opposing counsel. A reasonable amount of time is .50, which is

prorated among the 11 cases.

58. On June 21, 2008, in Case Nos. 08-2821RX, 08-2823RX,

and 08-2824RX, there is a .30-hour entry for SF for finalizing

and forwarding a petition for formal hearing to the Department of

Health for filing. This entry does not appear to be related to

the rule challenges and is deleted.

59. In Case No. 08-3298RX, MRG made an entry of .50 hours

for a telephone conference regarding the date of rule challenge

and petition for rehearing. The petition for rehearing dealt

with the client’s petition for waiver and should not be included.

Thus, the entry is reduced to .25 hours.

60. After all the cases were consolidated The Health Law

Firm began to make entries for all cases in the first

consolidated invoice. On July 28, 2008, GFI made an entry of

2.8 hours, which related exclusively to the issue of retroactive

application of the rule. This entry is deleted.

61. RS made entries in the first consolidated invoice for

August 12, 14, 28, and 29, 2008, and September 2, 5, 10, and 18,

2008, relating to filing, indexing, copying, and forwarding

documents. There are similar entries for SF on August 26, 2008,

and September 4 and 9, 2008, and for AE on September 8, 2008.

Those entries are for clerical tasks.

62. PD had entries for reviewing, organizing, and indexing

documents on September 4, 8, 11, and 17, 2008, and October 8,

2008. Those entries are for clerical tasks.

63. There were numerous entries in August 2008 relating to

a Board of Pharmacy meeting on August 21, 2008, in which the

Board of Pharmacy heard motions for reconsideration of orders

denying Petitioners’ petitions for waivers. Those entries are

related to the petitions for waiver and not to the rule

challenges. Although, The Health Law Firm makes reference to a

settlement agreement in which the Board of Pharmacy agreed to

grant the waivers, there was no settlement agreement of the rule

challenges because the parties proceeded to litigate the issues

by summary disposition. Thus, the references to attending and

preparing for the August 21, 2008, Board of Pharmacy meeting as

well as advising the clients of the outcome of the meeting on

August 20 and 21, 2008, are deleted. Additionally, an entry by

MRG on August 20, 2008, which included reviewing the August 21st

agenda is reduced to .75 hours.

64. On August 25, 2008, MRG made an entry which included a

telephone conference with Mr. Bui and a telephone conference with

Ms. Ranne regarding Mr. Bui. Mr. Bui is not a Petitioner, and

the entry is reduced to .55 hours. Based on the invoices, it

appears that Mr. Bui and Ms. Ranne were also foreign pharmacy

graduates seeking waivers from the Board of Pharmacy. On

August 29, 2008, MRG made another entry which included the

preparation of an e-mail to Mr. Bui. The entry is reduced to two

hours.

65. On August 6, 2008, MRG made a 1.80-hour entry which

included preparing e-mail to Mr. Bui and a telephone conference

with Mr. Sokkan regarding the rule challenge and settlement

negotiations. Neither of these persons is a Petitioner; thus,

the entry is reduced to .60 hours.

66. On August 28, 2008, TJJ made a 3.60-hour entry for

researching and preparing Petitioners’ second motion to compel

discovery. No such motion was filed. Thus, the entry is

deleted. Another entry was made on September 2, 2008, which

included, among other things, the revision of the motion to

compel. That entry is reduced to .80 hours.

67. On August 8, 2008, MRG made a 1.00-hour entry which

included a telephone conference with Ms. Alameddine regarding her

passing the MPJE and being licensed in Michigan. Those issues

relate to the petition for reconsideration of the waiver. The

entry is reduced to .50 hours.

68. On September 4, 2008, TJJ made a .80-hour entry for

preparing a letter to Mr. Modi regarding his approval to take the

examination, a 1.00-hour entry dealing with Mr. Lakshminarary’s

application, a .90-hour entry dealing with Petitioner Narayanan’s

application, a .70-hour entry dealing with Mr. Shah’s

application, and a .60-hour entry dealing with Ms. Hernandez’s

application. The entries deal with the petitions for a waiver

and are deleted.

69. On September 4, 2008, MRG made an entry which included,

among other tasks, time for determining if the Board of Pharmacy

had sufficient funds to pay Petitioners’ attorney’s fees. This

entry is reduced to two hours.

70. On October 10, 2008, MRG made a 1.20-hour entry which

included, among other things, analyzing pleadings to determine if

persons who were not Petitioners should file petitions for

attorney’s fees. The entry is reduced to .60 hours.

71. On July 16, 2008, MRG and JP made entries in ten of the

cases for traveling to Tallahassee and attending the depositions

of Elizabeth Ranne and Erika Lilja. The total hours for MRG was

16.9 hours and for JP the total was 17 hours. These total hours

are reduced by ten hours each for travel time.

72. On August 12 and 13, 2008, MRG made entries which

included travel time to attend Board of Pharmacy meetings. 6 Those

entries are reduced each by one hour to account for travel time.

73. The following is a listing of the amount of hours and

dollar amount for fees, which are considered to be reasonable for

the rule challenges.

Individual and First Consolidated Invoice

H o u r s R a t e A m o u n t

G F I 1 4 6 . 1 0 $ 3 5 0 . 0 0 $ 5 1 , 1 3 5 . 0 0

M L S 3 . 7 0 $ 3 0 0 . 0 0 $ 1 , 1 1 0 . 0 0

J K 1 . 4 0 $ 3 0 0 . 0 0 $ 4 2 0 . 0 0

T J J 8 0 . 1 3 $ 2 0 0 . 0 0 $ 1 6 , 0 2 6 . 0 0

M R G 2 1 0 . 1 6 $ 1 5 0 . 0 0 $ 3 1 , 8 2 4 . 0 0

J P 3 7 . 8 0 $ 1 0 0 . 0 0 $ 3 , 7 8 0 . 0 0

P D 3 9 . 0 5 3 $ 8 0 . 0 0 $ 3 , 1 2 4 . 2 4

S F 1 6 . 8 0 $ 8 0 . 0 0 $ 1 , 3 4 4 . 0 0

G J . 4 0 $ 8 0 . 0 0 $ 3 2 . 0 0

R S 1 . 3 $ 8 0 . 0 0 $ 1 0 4 . 0 0

$ 1 0 8 , 8 9 9 . 2 4

74. The Partial Final Order found that Petitioners were

entitled to an award of attorney’s fees pursuant to Subsection

120.595(3), Florida Statutes. Thus, the issue of entitlement to

fees and costs pursuant to Subsection 120.595(3), Florida

Statutes, was not an issue that was litigated in the instant fee

cases. The issue of whether Petitioners were entitled to fees

and costs pursuant to Subsections 57.105(5), 120.569(2)(e), and

120.595(4), Florida Statutes, were entitlement issues which were

litigated in the instant fee cases. 7 Most of the charges dealing

with the petitions for fees and costs are related to the amount

of fees that are to be awarded and not to the entitlement to

fees.

75. In Petitioners’ second consolidated invoice

(Petitioners’ Exhibit 4), there is a two-hour entry by MLS on

November 3, 2008, for research of entitlement to fees pursuant to

Subsection 120.595(3), Florida Statutes. This entry is deleted

since the issue of entitlement to fees pursuant to Subsection

120.595(3), Florida Statutes, had already been determined.

76. The following entries in the second consolidated

invoice relate to the litigation of the amount of fees to be

awarded and are deleted:

1 1 - 5 - 0 8 G F I 6.90 h o u r s

1 1 - 6 - 0 8 S F 7.00 h o u r s

1 1 - 6 - 0 8 G F I 7.40 h o u r s

1 1 - 7 - 0 8 S F 7.00 h o u r s

1 1 - 7 - 0 8 M L S 1.00 h o u r

1 1 - 7 - 0 8 J C P 7.00 h o u r s

1 1 - 8 - 0 8 J C P 1.00 h o u r s

1 1 - 8 - 0 8 G F I 7.10 h o u r s

1 - 2 6 - 0 9 G F I 1.00 h o u r

2 - 9 - 0 9 G F I .60 h o u r s

2 - 1 0 - 0 9 G F I .30 h o u r s

2 - 1 2 - 0 9 G F I .60 h o u r s

2 - 1 7 - 0 9 G F I .30 h o u r s

2 - 1 7 - 0 9 G F I .60 h o u r s

2 - 1 9 - 0 9 G F I .60 h o u r s

77. The following entries were made in the second

consolidated invoice for clerical tasks performed by paralegals

and legal assistants:

1 1 - 3 - 0 8 R A S .30 h o u r s

2 - 9 - 0 9 R A S .30 h o u r s

2 - 1 0 - 0 9 R A S .30 h o u r s

2 - 1 2 - 0 9 A C E .40 h o u r s

78. The issue of entitlement to fees pursuant to statutes

other than Subsection 120.595(3), Florida Statutes, was a small

portion of the litigation relating to attorney’s fees and costs.

The major areas of litigation dealt with the amount of fees and

costs that should be awarded. The invoices do not specifically

set forth the amount of time that was spent on the issue of

entitlement to fees on statutes other than Subsection 120.595(3),

Florida Statutes. Based on a review of the pleadings in these

fee cases and a review of the invoices submitted for litigation

of attorney’s fees and costs, it is concluded that ten percent of

the time should be allocated to the issue of entitlement to fees.

The percentage is applied to the fees after the fees listed in

paragraphs 76, 77, and 78, above, have been deleted. Thus, the

following entries in the second consolidated invoice are reduced

to the following amount of hours:

1 1 - 1 - 0 8 J C P .26 h o u r s

1 1 - 3 - 0 8 M L S .10 h o u r s

1 1 - 4 - 0 8 M L S .40 h o u r s

1 1 - 8 - 0 8 J C P .32 h o u r s

1 2 - 2 2 - 0 8 G F I .04 h o u r s

1 2 - 3 0 - 0 8 M L S .03 h o u r s

1 - 7 - 0 9 G F I .02 h o u r s

1 - 1 4 - 0 9 G F I .04 h o u r s

1 - 1 5 - 0 9 G F I .07 h o u r s

79. In the third consolidated invoice (Petitioners’

Exhibit 5), the following entries relate to the amount of fees to

be awarded and are deleted:

3 - 4 - 0 9 S M E 4.80 h o u r s

3 - 4 - 0 9 G F I 1.20 h o u r s

4 - 3 - 0 9 G F I 3.20 h o u r s

4 - 7 - 0 9 G F I .50 h o u r s

4 - 7 - 0 9 G F I .60 h o u r s

4 - 7 - 0 9 G F I .30 h o u r s

4 - 8 - 0 9 G F I 4.20 h o u r s

4 - 8 - 0 9 G F I 1.00 h o u r

4 - 9 - 0 9 M R G 1.50 h o u r s

4 - 9 - 0 9 G F I 3.20 h o u r s

4 - 1 1 - 0 9 G F I .60 h o u r s

4 - 1 5 - 0 9 G F I 4.40 h o u r s

80. On April 14, 2009, GFI made an entry which included

time for travel to the expert witness’ office. The entry is

reduced by .75 hours for travel time. Ten percent of the time

not excluded or reduced above related to the issue of entitlement

of fees pursuant to statutes other than Subsection 120.595(3),

Florida Statutes. The following entries are reduced to that

percentage:

3 - 3 1 - 0 9 G F I .05 h o u r s

4 - 1 - 0 9 G F I .20 h o u r s

4 - 6 - 0 9 G F I .19 h o u r s

4 - 6 - 0 9 G F I .03 h o u r s

4 - 7 - 0 9 M R G .05 h o u r s

4 - 7 - 0 9 G F I .07 h o u r s

4 - 7 - 0 9 G F I .19 h o u r s

4 - 7 - 0 9 G F I .27 h o u r s

4 - 9 - 0 9 G F I .10 h o u r s

4 - 1 3 - 0 9 G F I .50 h o u r s

4 - 1 4 - 0 9 G F I .48 h o u r s

4 - 1 4 - 0 9 G F I .275 h o u r s

81. The following is a list of the fees in the second and

third consolidated invoices which are related to entitlement of

fees pursuant to Florida Statutes other than Subsection

120.595(3), Florida Statutes.

Second and Third Consolidated Invoice

H o u r s R a t e A m o u n t

G F I 2 . 5 2 5 $ 3 5 0 . 0 0 $ 8 8 3 . 7 5

M L S . 4 3 $ 3 0 0 . 0 0 $ 1 2 9 . 0 0

M R G . 0 5 $ 1 5 0 . 0 0 $ 7 . 5 0

J C P . 3 2 $ 1 0 0 . 0 0 $ 3 2 . 0 0

$ 1 , 0 5 2 . 2 5

82. With the exception of the costs related to the

Transcripts of the Board of Pharmacy meetings of April 8 and 9,

2008, and June 10, 2008, Respondent, as stipulated in the

parties’ Joint Pre-hearing Stipulation, does not dispute that the

amounts of costs set forth in the invoices submitted by

Petitioners are fair and reasonable. 8 The cost of the Transcripts

of the Board of Pharmacy meetings on April 8 and 9, 2008, was

$1,476.00. The cost of the Transcript of the Board of Pharmacy

meeting on June 10, 2008, was $524.00. At the final hearing, the

Board of Pharmacy’s objection appeared to be based on the timing

of the payment of the court reporter’s fees related to the

transcribing of those meetings. The Transcripts were filed with

the Division of Administrative Hearings prior to the issuance of

the Partial Final Order. Thus, the costs of the transcribing of

the Board of Pharmacy meetings are properly included in the

amount of costs to be awarded to Petitioners. The amounts of the

costs claimed for the rule challenges in the individual and first

consolidated invoice are reasonable.

83. The costs incurred by Petitioners for the rule

challenges as set forth in the individual and first consolidated

invoices are listed below:

Name A m o u n t

Vipul Patel $1,773.62

Miriam Hernandez $1,801.41

Mirley Aleman-Alejo $1,213.80

Valliammai Natarajan $321.17 [9]

John H. Neamatalla $1,118.72

Samad Mridha $975.12

Se Young Yoon $1,097.07

Saurin Modi $1,168.75

Deepakkumar Shah, M.Ph. $1,119.24

Mijeong Chang $1,213.16

Nabil Khalil $961.32

Hadya Alameddine $464.60

Balaji Lakshminarayanan $509.71

Anand Narayanan $461.87

84. The total amount of costs to be awarded for the

challenge to the existing rule and to the policy statements is

$14,199.56.

85. The parties stipulated to the reasonableness of the

costs contained in the second consolidated invoice. The second

consolidated invoice lists the total costs as $2,096.12.

Therefore, the costs for the second consolidated invoice are

reduced to $209.61, 10 which represents the amount attributable to

litigation of entitlement of fees, ten percent of the total

costs.

86. The parties stipulated to the reasonableness of the

costs contained in the third consolidated invoice. The third

consolidated invoice lists the total costs as $580.62.

Therefore, the costs for the third consolidated invoice are

reduced to $58.06, 11 which represents the amount attributable to

litigating the entitlement of fees, ten percent of the total

costs.

87. Petitioners incurred costs in the litigation of the

amount of attorney’s fees to be awarded. Petitioners retained an

expert witness, Sandra Ambrose, Esquire. Ms. Ambrose’s fee

relating to the issue of attorney’s fees is $5,200.00. Her fee

is reasonable; however, Ms. Ambrose’s testimony was related to

the amount of the fees not to the entitlement to fees and are,

therefore, not awarded as part of the costs.

88. The total costs to be awarded for the litigation of the

fees is $267.67.

CONCLUSIONS OF LAW

89. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

Stat. (2008).

90. Subsection 120.595(3), Florida Statutes, provides:

(3) If the court or administrative law judge

declares a rule or portion of a rule invalid

pursuant to s. 120.56(3), a judgment or order

shall be rendered against the agency for

reasonable costs and reasonable attorney's

fees, unless the agency demonstrates that its

actions were substantially justified or

special circumstances exist which would make

the award unjust. An agency's actions are

"substantially justified" if there was a

reasonable basis in law and fact at the time

the actions were taken by the agency. If the

agency prevails in the proceedings, the court

or administrative law judge shall award

reasonable costs and reasonable attorney's

fees against a party if the court or

administrative law judge determines that a

party participated in the proceedings for

an improper purpose as defined by

paragraph (1)(e). No award of attorney's

fees as provided by this subsection shall

exceed $15,000.

91. Each Petitioner is seeking fees for his or her specific

case, which would equal to each Petitioner receiving up to a

maximum of $15,000.00 in fees. The Board of Pharmacy contends

that fees should be awarded for only one Petitioner. The basis

for this argument is that all 14 Petitioners could have filed one

rule challenge and gained the same results that were gained by

the filing of 14 separate petitions. Petitioners conceded at the

final hearing that the reason for filing 14 separate petitions

was to increase the amount of attorney’s fees which could be

awarded. The cases were taken on a contingency fee basis,

principally because Petitioners could not afford to pay on an

hourly basis. The statutory limit on the amount of attorney’s

fees that can be awarded pursuant to Subsection 120.595(3),

Florida Statutes, is $15,000.00.

92. Petitioners rely on the Final Order entered in Anderson

Columbia Company, Inc. v. Board of Trustees of the Internal

Improvement Trust Fund , Case Nos. 00-0754F, 00-0755F, 00-0756F,

00-0757F, and 00-0828F (DOAH July 18, 2000), per curiam aff’d Bd.

of Trustees of the Internal Improvement Trust Fund v. Anderson

Columbia, et al. , 796 So. 2d 1176 (Fla. 1st DCA 2001), to support

their position that each Petitioner is entitled to receive

attorney’s fees. In Anderson Columbia , the Administrative Law

Judge found that the petitioners in a rule challenge to a

proposed rule were entitled to the maximum allowed pursuant to

Subsection 120.595(2), Florida Statutes, for each petition filed.

Three of the petitioners were corporations, one petitioner was a

limited partnership, and one petitioner consisted of a group of

individuals and corporations. In rejecting the respondent’s

contention that the fees should be reimbursed on per case client

basis, the Administrative Law Judge stated:

Support Terminals and Commodores Point were

unrelated clients who happened to choose the

same counsel; they were not a “shared

venture.” Each brought a different

perspective to the case since Commodores

Point had already received a disclaimer with

no reversionary interest on June 26, 1997.

The latter event ultimately precipitated this

matter and led to the proposed rulemaking.

Likewise, in the case of Anderson Columbia

and Panhandle Land, one was a land owner

while the other was a tenant, and they also

happened to choose the same attorney to

represent them. For the sake of convenience

and economy, the underlying cases were

consolidated and the matters joined for

hearing.

Anderson Columbia , Final Order, pages 6-7.

93. In the instant cases, the Petitioners are not bringing

different perspectives to the cases. Each Petitioner graduated

from a pharmacy school located outside the United States and had

taken and passed the Foreign Pharmacy Graduate Equivalency

Examination, the Test of Spoken English, and the Test of English

as a Foreign Language. Petitioners had been issued Intern

Registrations by the Board of Pharmacy. All but two of the

Petitioners had submitted applications to sit for the licensure

examination and had their applications denied. All Petitioners

had sought a variance or waiver of the FPGEC certification

requirement and had been denied a variance or waiver.

Essentially, the Petitioners were all in the same boat. It is

true that the hardships that Petitioners may have had because

they were not allowed to sit for the licensure examination

differed; the hardships were irrelevant to the issue of whether

the rule was invalid or whether the challenged statements

constituted rules.

94. The facts in these cases do not demonstrate that

Petitioners just happened to choose the same law firm to

represent them. The Health Law Firm had represented the

Petitioners in their petitions to the Board of Pharmacy for a

variance or waiver. The Health Law Firm acknowledged that the

reason that 14 petitions were filed was to increase the amount of

attorney’s fees which could be claimed. The Health Law Firm sent

out letters soliciting clients to join in the rule challenge.

All the Petitioners knew each other and had a web site for the

foreign pharmacy graduates.

95. Notwithstanding the reference to these cases as

separate, supra , it is concluded that the 14 challenges to the

existing rule should be treated as one case and that the amount

of fees to be awarded to Petitioners for the challenge to the

existing rule is the statutory limit of $15,000.00.

96. Petitioners’ rule challenge included a challenge to

eight statements which had not been promulgated as rules.

Petitioners were not successful on four of the statements and

prevailed on the other statements. Subsection 120.595(4),

Florida Statutes, provides for the award of reasonable costs and

attorney’s fees upon the entry of a final order that all or part

of an agency statement meets the definition of a rule and has not

been promulgated as a rule. Subsection 120.595(4), Florida

Statutes, states:

(4) CHALLENGES TO AGENCY ACTION PURSUANT TO

SECTION 120.56(4).--

(a) Upon entry of a final order that all or

part of an agency statement violates

s. 120.54(1)(a), the administrative law judge

shall award reasonable costs and reasonable

attorney's fees to the petitioner, unless the

agency demonstrates that the statement is

required by the Federal Government to

implement or retain a delegated or approved

program or to meet a condition to receipt of

federal funds.

(b) Notwithstanding the provisions of

chapter 284, an award shall be paid from the

budget entity of the secretary, executive

director, or equivalent administrative

officer of the agency, and the agency shall

not be entitled to payment of an award or

reimbursement for payment of an award under

any provision of law.

97. The Board of Pharmacy has not demonstrated that the

statements and policies which were deemed to be rules were

required to implement or retain a federal program or that the

statements or policies were necessary to meet conditions for the

receipt of federal funds. Thus, Petitioners are entitled to an

award of attorney’s fees pursuant to Subsection 120.595(4),

Florida Statutes. Unlike Subsection 120.595(3), Florida

Statutes, Subsection 120.595(4), Florida Statutes, does not

contain a limit on the amount of attorney’s fees which are to be

awarded except that the fees must be reasonable. As with the

portion of the challenges to the existing rule, the portion of

the challenges dealing with the non-rule policy are treated as

one case.

98. Ms. Ambrose testified on behalf of Petitioners that the

fees charged by The Health Law Firm were reasonable. However,

Ms. Ambrose has never litigated a rule challenge before. A

review of the invoices for the rule challenges show that many of

the entries are for time which is unreasonable or which should

not be awarded.

99. Many of the entries are for clerical tasks performed by

legal assistants, paralegals, or a law clerk. Section 57.104,

Florida Statutes, is instructive on the types of services that

can be included for legal assistants and paralegals in an award

of attorney’s fees and provides:

In any action in which attorneys' fees are to

be determined or awarded by the court, the

court shall consider, among other things,

time and labor of any legal assistants who

contributed nonclerical, meaningful legal

support to the matter involved and who are

working under the supervision of an attorney.

For purposes of this section "legal

assistant" means a person, who under the

supervision and direction of a licensed

attorney engages in legal research, and case

development or planning in relation to

modifications or initial proceedings,

services, processes, or applications; or who

prepares or interprets legal documents or

selects, compiles, and uses technical

information from references such as digests,

encyclopedias, or practice manuals and

analyzes and follows procedural problems that

involve independent decisions.

100. The court in Dayco Products v. McLane , 690 So. 2d 654

(Fla. 1st DCA 1977), held that fees for clerical tasks could not

be awarded pursuant to Section 57.104, Florida Statutes. The

entries for clerical tasks performed in the rule challenges are

not included in the award of fees.

101. An attorney’s travel time is not to be included in a

fee award. See C.B.T. Realty Corporation v. St. Andrews Cove I

Condominium Assoc. , 508 So. 2d 409 (Fla. 1st DCA 1987). The

entries for travel are deleted.

102. The Health Law Firm represented the Petitioners before

the Board of Pharmacy on their petitions for a waiver and their

petitions for reconsideration on the denial of their waivers.

Some of the entries related to the petitions for waivers, which

are separate cases from the rule challenges. The time related to

the waivers is not compensable in the rule challenge cases.

103. At first blush, many of the entries on the individual

invoices appear to be reasonable. However, when the time is

multiplied by ten or 14, for performing a single task, the time

becomes unreasonable. Entries have been reduced where the time

was excessive for the task performed.

104. In Case No. 08-2731RX, the client indicated that she

no longer wished to pursue the case, and The Health Law Firm

continued to bill for services after she so indicated. It is

unknown why no voluntary dismissal was filed in this case. In

any case, no entries after the client advised that she no longer

wished to proceed are included in the award of attorney’s fees.

105. Petitioners did not prevail on the issue of

retroactive application of the rule in the rule challenge. To

the extent that the invoice entries specifically state that the

time relates to the retroactive application issue, that time is

deleted or reduced if other tasks are included in the entry.

106. The rule challenge petitions dealt with two distinct

types of challenges. One was for an existing rule, and the other

was for policy statements which were alleged to meet the

definition of a rule but were not promulgated as rules. The

invoices do not delineate the time that was spent on the

challenge to the existing rule and the time that was spent on the

nonpromulgated rules, except for the retroactive application

issue. The reasonable time and charges for both aspects of the

rule challenges are stated in paragraph 73, above, with a total

of $108,899.24. This amount is divided equally between the

challenge to the existing rule and the challenge to the agency

policy statements. Because Subsection 120.595(3), Florida

Statutes, limits the amount of fees to be awarded to $15,000.00,

Petitioners are awarded a total of $15,000.00 for the challenge

to the existing rule. The Petitioners are awarded $54,449.62 for

the challenge to the unpromulgated agency statements.

107. Petitioners seek a lodestar multiplier of 1.5 as an

enhancement of the fees being claimed. In Florida Patient’s

Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985), the

Florida Supreme Court set forth guidelines in determining

reasonable attorney’s fees. The criteria set forth in Rules

Regulating the Florida Bar, Rule 4-1.5(b)(1), which provides:

(1) Factors to be considered as guides in

determining a reasonable fee include:

(A) the time and labor required, the

novelty, complexity, and difficulty of the

questions involved, and the skill requisite

to perform the legal service properly;

(B) the likelihood that the acceptance of

the particular employment will preclude other

employment by the lawyer;

(C) the fee, or rate of fee, customarily

charged in the locality for legal services of

a comparable or similar nature;

(D) the significance of, or amount involved

in, the subject matter of the representation,

the responsibility involved in the

representation, and the results obtained;

(E) the time limitations imposed by the

client or by the circumstances and, as

between attorney and client, any additional

or special time demands or requests of the

attorney by the client;

(F) the nature and length of the

professional relationship with the client;

(G) the experience, reputation, diligence,

and ability of the lawyer or lawyers

performing the service and the skill,

expertise, or efficiency of effort reflected

in the actual providing of such services, and

(H) whether the fee is fixed or contingent,

and, if fixed as to the amount or rate, then

whether the client’s ability to pay rested to

any significant degree on the outcome of the

representation.

108. The first step is to determine the lodestar, which is

the number of reasonable hours expended in the litigation

multiplied by the reasonable hourly rate. The parties have

stipulated that the hourly rates charged are reasonable.

Petitioners have not demonstrated that the number of hours

claimed in the litigation is reasonable. The invoice entries for

the rule challenges have been reduced as set forth in the

Findings of Fact.

109. Thus, the lodestar is the amount of fees set forth in

paragraph 73, above, which is $108,899.24.

110. Petitioners contend that a lodestar multiplier should

be applied in determining reasonable attorney’s fees.

Petitioners have not demonstrated that either the issues of law

or fact were novel, complex, or difficult. Although counsel for

Petitioners testified that a rule challenge was novel to him

because he had never litigated a rule challenge, the legal and

factual issues were fairly clear cut. The inexperience of the

attorney does not mean that the questions involved in the case

were novel.

111. The representation of Petitioners was taken on a

contingency fee basis; however, the likelihood of success on at

least a portion of the statement or policies challenged was very

high. Counsel for Petitioners made a conscious decision to file

14 separate petitions in order to increase the amount of

attorney’s fees which could be awarded. Additionally, a

multiplier is not mandatory in a contingency fee situation.

Standard Guaranty Insurance Co. v. Quanstrom , 555 So. 2d 828

(Fla. 1990).

112. One of the factors to be considered is the time

constraints placed on the attorneys by the circumstances or the

clients. Pursuant to Subsection 120.56(1)(c), Florida Statutes,

the final hearing in a rule challenge is to be held within

30 days of receipt of the petition by the Division of

Administrative Hearings, and a final order is to be issued within

30 days of the final hearing. In the instant rule challenge, the

final hearing was scheduled to be held within 30 days of the

receipt of the first rule challenge filed by Petitioner Patel.

The final hearing was continued at the request of the parties,

and the parties eventually agreed to have the issue determined by

summary disposition. Additionally, by August 21, 2008, each of

the Petitioners who had filed an application was granted a waiver

or variance that would allow them to sit for the licensure

examination, which was their ultimate goal.

113. Another factor to be considered is the result

obtained. There were eight statements or policies that

Petitioners were challenging as constituting rules which were

unpromulgated. Petitioners failed to establish that three of the

statements or policies constituted rules and failed to establish

that one alleged policy or statement actually existed. The four

remaining statements or policies challenged by the Petitioners

were deemed to meet the definition of a rule. Three of the

remaining policies or statements that were found to constitute

rules dealt with petitions for waivers or variances. The Board

of Pharmacy had taken the position that one who petitioned for a

variance or waiver prior to submitting an application did not

have standing to request a variance or waiver from Florida

Administrative Code Rule 64B16-26.2031. This position was

premised on the underlying policy that applications could not be

accepted until the applicant complied with Florida Administrative

Code Rule 64B16-26.2031. The Board of Pharmacy conceded that the

underlying policy was an invalid non-rule policy. Each of the

Petitioners who requested a variance or waiver had been given a

hearing and granted a variance or waiver, prior to the issuance

of the Partial Final Order.

114. The fourth policy statement deemed to constitute a

rule dealt with the statements found on the application forms for

taking the licensure examination. The Board of Pharmacy conceded

that the statements at issue were invalid non-rule policies. On

August 1, 2008, the Board of Pharmacy began the rulemaking

process to address the issues raised by the invalid non-rule

policies. Additionally, by August 21, 2008, all of the

Petitioners who had submitted an application were granted a

variance or waiver.

115. It cannot be concluded that prevailing on half of the

issues alleged in the challenge to statements or policies which

constituted rules would require the application of a multiplier.

116. Another factor to be considered in determining whether

a multiplier is applicable is the skill and experience of the

attorneys and the effort and efficiency of the attorneys in

providing the legal services. The attorneys who represented the

Petitioners were skilled litigators, but had no previous

experience in rule challenges. As discussed in the Findings of

Fact, there were many areas in which the attorneys did not

demonstrate efficiency in the provision of the legal services.

Thus, this factor does not warrant the application of a

multiplier.

117. Petitioners contend that it was difficult for them to

retain the services of an attorney to represent them, and that is

a factor which should be considered in determining the use of a

multiplier in determining the amount of fees to be awarded. This

argument is disingenuous since The Health Law Firm had

represented each of the Petitioners in his/her petitions before

the Board of Pharmacy for a variance or waiver. No evidence was

presented that any of the Petitioners had sought legal

representation for the rule challenge from any other law firm

other than The Health Law Firm.

118. The Health Law Firm had represented the Petitioners in

their petitions for waivers before the Board of Pharmacy before

and after the rule challenges were filed. The professional

relationship between the Petitioners and The Health Law Firm does

not warrant the use of a multiplier.

119. Based on the factors set forth in Florida Patient’s

Compensation Fund v. Rowe , Petitioners are not entitled to a

lodestar multiplier.

120. Petitioners contend that they are entitled to be

reimbursed for attorney’s fees and costs related to the

litigation to determine the amount of fees to be awarded. In

State Farm Fire & Casualty Co. v. Palma , 629 So. 2d 830 (1993),

the Florida Supreme Court determined attorney’s fees for

litigating the amount of attorney’s fees to be awarded is not

recoverable unless the statute which provides for the award of

attorney’s fees to a prevailing party specifically provides for

an award of attorney’s fees for litigating the amount of the

attorney’s fees. In Palma , the court was dealing specifically

with Section 627.428, Florida Statutes, and stated:

[T]he terms of section 627.428 are an

implicit part of every insurance policy

issued in Florida. When an insured is

compelled to sue to enforce an insurance

contract because the insurance company has

contested a valid claim, the relief sought is

both the policy proceeds and attorney’s fees

pursuant to section 627.428. the language of

subsection (3), which provides that

“compensation or fees of the attorney shall

be included in the judgment or decree

rendered in the case[,]” also supports this

conclusion. §627.428(3), Fla. Stat. (1983).

Thus, if an insurer loses such a suit but

contests the insured’s entitlement to

attorney’s fees, this is still a claim under

the policy and within the scope of section

627.428. Because such services are rendered

in procuring full payment of the judgment,

the insured does not have an interest in the

fee recovered. Accordingly, we hold that

attorney’s fees may be awarded under section

627.428 for litigating the issue of

entitlement to attorney’s fees.

However, we do not agree with the district

court below that attorney’s fees may be

awarded for litigating the amount of

attorney’s fees. The language of the statute

does not support such a conclusion. Such

work inures solely to the attorney’s benefit

and cannot be considered services rendered in

procuring full payment of the judgment.

(Emphasis in the original)

Id. at 832-833.

121. The court in Palma recognized that federal courts had

not distinguished between entitlement to attorney’s fees and the

amount of attorney’s fees when awarded fees for litigating fees

and disagreed with the federal view:

Florida courts, including this Court, have

consistently held that the purpose of section

627.428 is “to discourage the contesting of

valid claims against insurance companies and

to reimburse successful insureds for their

attorney’s fees when they are compelled to

defend or sue to enforce their insurance

contracts.” Lexow , 602 So. 2d at 531. Our

conclusion that statutory fees may be awarded

for litigating the issue of entitlement to

attorney’s fees but not the amount of

attorney’s fees comports with the purpose of

section 627.428 and with the plain language

of the statute. If the scope of section

627.428 is to be expanded to include time

spent litigating the amount of attorney’s

fees, then the Legislature, rather than this

Court, is the proper party to do so.

Id. at 833.

122. In Agency for Health Care Administration v. HHCI

Limited Partnership , 865 So. 2d 593 (Fla. 1st DCA 2004), the

court specifically dealt with whether attorney’s fees could be

recovered for litigating the amount of attorney’s fees to be

awarded pursuant to Subsection 120.595(4), Florida Statutes. The

court followed Palma in concluding that the Administrative Law

Judge must exclude from the fee award any fees expended in

attempting to prove the amount of the fees.

123. The issue of entitlement to fees is limited to whether

fees can be recoverable under a statute other than Subsection

120.595(3), Florida Statutes. Most of the time spent in the

litigation of the fees dealt with the issue of the amount of the

fees to be awarded not with whether Petitioners were entitled to

fees. Based on a review of the pleadings filed and the invoices

submitted, it is determined that ten percent of the fee

litigation involved litigation of entitlement of fees. Thus, the

invoice entries in the second and third consolidated invoices

which dealt specifically with the issue of the amount of fees and

costs is deleted. In the entries in which it could not be

determined the amount of time pertaining to amount or

entitlement, the entry is reduced to ten percent for the

entitlement issue. Petitioners are awarded $1,052.25 for

litigating fees.

124. Subsections 120.595(3) and 120.595(4), Florida

Statutes, provide that costs are to be awarded to the prevailing

party in rule challenges. The only limit on the amount of costs

that may be awarded to the prevailing party is that the costs

must be reasonable. The parties have stipulated that the costs

are reasonable with the exception of the transcript costs of the

Board of Pharmacy meetings. The stipulation is binding. See

Palm Beach Community College v. Department of Administration , 579

a case is to be tried upon stipulated facts, the stipulation is

binding not only upon the parties but also upon the trial and

reviewing courts. In addition, no other or different facts will

be presumed to exist.”). The transcript costs, which are in

dispute, are reasonable. The amount of costs awarded for the

rule challenge is $14,199.56. The amount of costs awarded for

the litigation of entitlement of fees is $580.62.

125. Petitioners also contend that fees should be awarded

pursuant to Subsection 120.569(2)(e), Florida Statutes, which

provides:

(e) All pleadings, motions, or other papers

filed in the proceeding must be signed by the

party, the party's attorney, or the party's

qualified representative. The signature

constitutes a certificate that the person has

read the pleading, motion, or other paper and

that, based upon reasonable inquiry, it is

not interposed for any improper purposes,

such as to harass or to cause unnecessary

delay, or for frivolous purpose or needless

increase in the cost of litigation. If a

pleading, motion, or other paper is signed in

violation of these requirements, the

presiding officer shall impose upon the

person who signed it, the represented party,

or both, an appropriate sanction, which may

include an order to pay the other party or

parties the amount of reasonable expenses

incurred because of the filing of the

pleading, motion, or other paper, including a

reasonable attorney's fee.

126. Petitioners have not demonstrated that Respondent

filed any pleading, motion, or other paper for any improper

purpose, for a frivolous purpose, or to needlessly increase the

cost of litigation. Respondent conceded the issues of law on

which it did not prevail in the rule challenge prior to the

submission of the case for summary disposition. The Board of

Pharmacy granted Petitioners waivers prior to the submission of

the case for summary disposition. Respondent was successful on

the portion of the rule challenge that it did not concede.

Petitioners are not entitled to an award of fees pursuant to

Subsection 120.569(2)(e), Florida Statutes.

127. Petitioners contend they are entitled to fees and

prejudgment interest pursuant to Subsection 57.105(5), Florida

Statutes, which provides that fees shall be awarded in an

administrative proceeding when the prevailing party demonstrates

that the non-prevailing party raised unsupported claims or

defenses or that any pleading filed or response to discovery was

made to unnecessarily delay litigation. For the reasons set

forth for denial of Petitioners’ claim pursuant to Subsection

120.569(2)(e), Florida Statutes, Petitioners are not entitled to

fees pursuant to Subsection 57.105(5), Florida Statutes.

128. Neither Subsection 120.595(3) nor Subsection

120.595(4), Florida Statutes, authorizes prejudgment interest.

Therefore, Petitioners’ claim for prejudgment interest is denied.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

1. Petitioners are awarded a total of $15,000.00 for

the attorney’s fees pursuant to Subsection 120.595(3), Florida

Statutes. The $15,000.00 is to be prorated among

the 14 Petitioners.

2. Petitioners are awarded a total of $54,449.62 pursuant

to Subsection 120.595(4), Florida Statutes. This amount is to be

prorated among the 14 Petitioners.

3. Petitioners are awarded a total of $14,199.56 for costs

as prevailing parties in the rule challenges. This amount is to

be prorated among the 14 Petitioners.

4. Petitioners are awarded a total of $1,052.25 for the

litigation of entitlement to fees. This amount is prorated among

the 14 Petitioners.

5. Petitioners are awarded a total of $580.62 for costs for

the litigation of entitlement to fees.

6. Pursuant to Subsection 120.595(4), Florida Statutes, the

fee amount of $54,449.62 and half of the costs of the rule

challenges, $7,099.78, are to be paid from the budget entity of

the executive director of the Board of Pharmacy.

DONE AND ORDERED this 30th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 2009.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 codification.

2/ The parties agreed to delete this charge from the fees claimed

by Petitioners.

3/ The Florida Supreme Court found in Standard Guaranty Insurance

Co. , 555 So. 2d 828 (Fla. 1990), that a contract between an

attorney and a client in which the attorney agrees to represent

the client if they prevail based on a statutory provision

awarding attorney’s fees to be determined by a court is a

contingency fee contract.

4/ Petitioners submitted three consolidated invoices. The first

invoice related to the fees and costs for the rule challenge.

The second and third invoices related to the litigation of the

fees.

5/ The Health Law Firm represented Petitioners on their petitions

to the Board of Pharmacy for a variance or waiver, which are

separate cases from the rule challenges.

6/ It is not clear from the invoices the purpose of attending the

Board of Pharmacy meetings on these dates.

7/ In the Joint Pre-hearing Stipulation, the parties stated:

Respondent contends that Petitioners are not entitled to any fees

or costs for the non-rule policy challenges on which Respondent

prevailed.” One of the issues of law listed to be litigated was

“Whether Petitioners are entitled to attorney’s fees and costs

pursuant to a different section of Florida Statutes other than

Section 120.595(3), Florida Statutes.”

8/ Although the parties have agreed that the costs other than for

the Transcripts of the Board of Pharmacy meetings on April 8

and 9, and June 10, 2008, are fair and reasonable, a review of

the costs does show that many of the costs were not reasonable

and would not have been allowed pursuant to the Statewide Uniform

Guidelines for Taxation of Costs in Civil Actions and case law.

In Department of Transportation v. Skidmore , 720 So. 2d 1125,

1130 (Fla. 4th DCA 1998), the court held “postage, long distance

calls, fax transmissions, and delivery services are office

expenses that should not have been taxed.” The Uniform

Guidelines for Taxation of Costs in Civil Actions provides that

travel expenses of attorneys should not be taxed as costs.

In Case No. 08-2728RX, $566.30 is claimed for costs related to

office expenses and travel expenses, which includes $412.30

for costs to deliver documents to the Division of Administrative

Hearings on June 9, 2008. In Case No. 08-2728RX, $122.84 is

claimed for office and travel expenses. In Case No. 08-2730RX,

$148.98 is claimed for office and travel expenses. In Case

No. 08-2731RX, $42.84 is claimed for office expenses. In Case

No. 08-2732RX, $113.40 is claimed for office and travel expenses.

In Case No. 08-2733RX, $107.55 is claimed for office and travel

expenses. In Case No. 08-2734RX, $124.98 if claimed for office

and travel expenses. In Case No. 08-2821RX, $108.43 was claimed

for office and travel expenses. In Case No. 08-2823RX, $123.17

is claimed for office and travel expenses. In Case

No. 08-2824RX, $123.59 is claimed for office and travel expenses.

In Case No. 08-3298RX, $113.95 is claimed for office and travel

expenses. In Case No. 08-3347RX, $23.08 is claimed for office

expenses. In Case No. 08-3488RX, $65.44 is claimed for office

expenses. In Case 08-3510RX, $49.83 is claimed for office

expenses. In the first consolidated invoice $370.00 is claimed

for office and travel expenses. Because the parties have

stipulated to the reasonableness of these costs, they are

determined to be reasonable. See Boyette v. Reliable Finance

Co. , 184 So. 2d 200, 202 (Fla. 2d DCA 1966), in which the court

opined that a stipulation could form the basis for a finding that

attorney’s fees are reasonable.

9/ Costs listed after June 18, 2008, the date which the client

indicated that she no longer wished to continue with the case,

are not included.

10/ Again, a review of the costs in the second consolidated

invoice shows costs for office expenses totaling $159.37.

Additionally, there is a charge of $1,895.75 for photocopies,

which appears to be excessive.

11/ A review of the costs in the third consolidated invoice shows

costs for office expenses totaling $54.37 and a charge of $526.25

for photocopies, which again appears to be excessive.

COPIES FURNISHED:

George F. Indest, III, Esquire

Matthew R. Gross, Esquire

Michael L. Smith, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

M. Catherine Lannon, Esquire

Office of the Attorney General

Administrative Law Section

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Deborah B. Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Scott Boyd, General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399

Rebecca Poston, R.Ph., Executive Director

Board of Pharmacy

Department of Health

4052 Bald Cypress Way, Bin C04

Tallahassee, Florida 32399-3254

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.