15-000982 Flo-Ronke, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, May 6, 2016.

Summary: An award of fees under sec. 57.105 requires proof that the fees motion was served on the opposing party at least 21 days before it was filed. The requirement is absolute. Since the motion was not served 21 days before filing, it was denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLO - RONKE, INC.,

Petitioner,

vs. Case No. 15 - 0982

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER DENYING FEES AND COSTS UNDER

SE CTION 57.105, FLORID A STATUTES

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings conducted the final hearing

on the Motion for AttorneyÓs Fees and Costs and the Renewed

Motion for AttorneyÓs Fees and Costs in this matter on March 21 ,

2016, by video teleconference , at locations in Tampa and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Rawsi Williams, Esquire

Rawsi Williams Law Group

Suite 2000

333 Southeast 2nd Avenue

Miami, Florida 33131

For Respondent: Lindsay Worsham Granger, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 3 2308

STATEMENT OF THE ISSUE

Is the Respondent, Agency for Health Care Administration

(Agency) , entitled to an award of attorney Ó s fees and costs from

Petitioner, Flo - Ronke, Inc. (Flo - Ronke) , and its counsel, under

section 57.105, Florida Statutes (2015)? 1/

PRELIMINARY STATEMENT

In this matter the Agency proposed to deny renewal of the

assisted living facility license of Flo - Ronke. Flo - Ronke

challenged that action and requested a formal administrative

hearing under sections 120.569 and 120.57, Florida S tatutes.

After a hearing and consideration of proposed recommended orders

from both parties, the undersigned rendered a Recommended Order

recommending that the Agen cy deny renewal of Flo - Ronke's

assisted living f acility license. The Recommended Order

ret ained jurisdiction over the AgencyÓs Motion for AttorneyÓs

Fees and Costs.

On January 13, 2016, the Agency rendered its Final Order

denying renewal. Flo - Ronke did not appeal that Order.

On February 10, 2016, the Agency filed its Renewed Motion

for Attorn eyÓs Fees and Costs. Both motions sought fees and

costs under section s 57.105 and 120.595. The order entered on a

fees motion under section 57.105 is a final order. The order

entered on a fees motion under section 120.595 is a recommended

order. Becaus e of this, two orders on the motions are rendered.

This order resolves the issue of fees and costs under section

57.105.

At the hearing on fees and costs t he Agency presented the

testimony of Carlton Enfinger, Esq uire , and Lindsay Worsham

Granger, Esq uire . Agency Exhibits 1 and 2 were admitted into

evidence. Flo - Ronke presented the testimony of its counsel

Rawsi Williams, Esq. Flo - Ronke offered no exhibits. Neither

party ordered a transcript. Both parties filed proposed orders.

They have been conside red in the preparation of this O rder.

FINDINGS OF FACT

1. The Agency served its Motion for Award of AttorneyÓs

Fees and Costs on August 28, 2015, and filed it the same day.

The motion relies upon sections 57.105 and 120.95. The motion

states that Flo - Ro nke opposes the motion. It does not say if or

when the motion was provided to Flo - Ronke.

2. On February 10, 2016, after the Final Order was

rendered, the Agency filed a Renewed Motion for AttorneyÓs Fees

and Costs. It too relies upon sections 57.105 and 120.595. The

renewed motion makes no representations about a copy of the

motion being served at any time before it was filed.

3. The record does not contain evidence that would support

a finding that the Agency served either of its motions at least

21 d ays before filing them.

CONCLUSIONS OF LAW

4. Sections 120.569 and 120.57(1) grant the Division of

Administrative Hearings jurisdiction.

5. The Agency seeks fees under section 57.105. Section

57.105(4) requires the party seeking fees to serve the moti on

for award of fees at least 21 days before filing the motion.

This requirement is absolute. Global Xtreme, Inc. v. Advanced

Aircraft Ctr., Inc. , 122 So. 3d 487,490 (Fla. 3d DCA 2013);

Anchor Towing, Inc. v. Fla. DOT , 10 So. 3d 670 (Fla. 3d DCA

2009).

6 . The Agency did not comply with the advance notice

requirement of section 57.105(4). It may not recover fees under

that sectionÓs authority .

ORDER

Based on the foregoing F indings of Fact and C onclusions of

L aw, the AgencyÓs Renewed Motion for Award of F ees and Costs

u nder s ection 57.105, Florid a Statutes , is DENIED.

DONE AND ORDERED this 6th day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 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 6th day of May, 2016 .

ENDNOTE

1 / All citations to Florida Statutes a re to the 2015 edition.

COPIES FURNISHED:

Lindsay Worsham Granger, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Rawsi Williams, Esquire

Rawsi Williams Law Group

Suite 2000

333 Southeas t 2nd Avenue

Miami, Florida 33131

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 M ahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams, Gen eral Co unsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is a dversely 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 o f administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Cou rt of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.