11-002585F Joann Kinard, As Personal Representative Of The Estate Of Esther Strong vs. Department Of Children And Families Status: Closed DOAH Final Order on Monday, October 10, 2011.

Summary: Petitioner is entitled to an award of $48,462.42 for attorney's fees and cost pursuant to section 120.595(4), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANN KINARD, as Personal )

Representative of the Estate of )

ESTHER STRONG, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2585F

)

DEPARTMENT OF CHILDREN AND )

FAMILIES, )

)

Respondent. )

)

FINAL ORDER AWARDING ATTORNEYÓS FEES AND COSTS

This case is before Administrative Law Judge W. David

Watkins on the parties' Stipulation for Entry of Agreed Final

Order ("Stipulation") as to Attorney's Fees and Co sts, which was

filed on October 5, 2011.

APPEARANCES

For Petitioner: Jack M. Rosenkranz, Esquire

Rosenkranz Law Firm

Post Office Box 1999

Tampa, Florida 33601

For Respondent : Herschel C. Minnis, Esquire

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204 - N

Tallahassee, Florida 32399

STATEMENT OF THE ISS UE

The issue for determination concerns the amount of

reasonable attorney's fees and costs to be awarded to Petitioner

pursuant to section 120.595(4), Florida Statutes (2010).

PRELIMINARY STATEMENT

T his is an action for attorneys' fees and costs follo wing a

successful challenge by Petitioner to four of Respondent's

statements defined as rules but not adopted as such, in

violation of section 120.54, Florida Statutes. That proceeding

was assigned DOAH Case No. 11 - 0535RU.

By Final Order dated March 22, 2011, the undersigned found

that the four challenged statements each constitute a "rule," as

defined in section 120.52(16), and they have not been adopted in

accordance with the rulemaking procedures set forth in section

120.54. The Final Order also deter mined that Petitioner is

entitled, pursuant to section 120.595(4)(a), to recover a

reasonable sum for the attorneys' fees and costs incurred in the

prosecution of this action. Jurisdiction was reserved to

determine, if necessary, the amount of attorneys' fees and costs

Petitioner should be awarded pursuant to section 120.595(4).

FINDINGS OF FACT

1. The Final Order in DOAH Case No. 11 - 0535RU determined

that Petitioner was entitled to an award of attorneys' fees and

costs pursuant to section 120.5 95(4), Florida Statutes.

2. The Stipulation filed by the parties states that

$45,000 is a reasonable sum to be awarded for attorneys' fees,

and that the sum of $3,462.43 is a reasonable amount for costs

incurred by Petitioner in the underlying proceeding . These

stipulated amounts are deemed by the undersigned to be

reasonable.

CONCLUSIONS OF LAW

3. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.56, and 120.595,

Florida Statutes. The Administrative Law Judge has final order

authority in this matter. § 120.569(4)(a), Fla. Stat.

4. An award of attorneys' fees pursuant to section

120.595(4) may not exceed $50,000.00

5. The terms and conditions for payment of the above

amounts as set forth in the Stipu lation are reasonable. The

terms and conditions for payment as set forth in the Stipulation

are incorporated and adopted as if fully set forth herein.

Accordingly, it is

ORDERED that Petitioner, Joann Kinard, Personal

Representative of the Estate of E sther Strong, is hereby awarded

the sum of $48,462.43 for attorney's fees and costs, which the

undersigned finds and concludes is a reasonable amount. The

above sum is to be paid by Respondent in the manner set forth in

the Stipulation.

DONE AND ORDERED this 10th day of October, 2011, in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of October, 2011.

COPIES FURNISHED :

Herschel C. Minnis, Esquire

Department of Children and Families

1317 Wi newood Boulevard

Building 2, Room 204 - N

Tallahassee, Florida 32399

Jack M. Rosenkranz, Esquire

Rosenkranz Law Firm

Post Office Box 1999

Tampa, Florida 33601

Gregory D. Venz, Agency Clerk

Department of Children and Families

1317 Winewood Boulevard

B uilding 2, Room 204A

Tallahassee, Florida 32399 - 0700

Drew Parker, General Counsel

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

David Wilkins, Secretary

Department of Children and Famil ies

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399 - 0700

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. Revi ew proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second 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.