15-003621F We Care Life Source, Llc vs. Agency For Persons With Disabilities Status: Closed DOAH Final Order on Wednesday, November 18, 2015.

Summary: Agency was substantially justified in initially denying Petitioner's application for licensure and special circumstances present that make an award of fees and costs unjust.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WE CARE LIFE SOURCE, LLC,

Petitioner,

vs. Case No. 1 5 - 3621F

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

FINAL ORDER

A hearing wa s conducted in this case before D.R. Alexander,

an Administrative Law Judge of the Division of Administrative

Hearings (DOAH) , on October 12, 2015, by video teleconferencing

at sites in Tampa and Tallahassee , Florida .

APPEARANCES

For Petitioner : Geoffrey E. Parmer, Esquire

Dogali Law Group, P.A.

Suite 1100

101 East Kennedy Boulevard

Tampa, Florida 33602 - 5146

For Respondent : Kurt E. Ahrendt, Esquire

Agency for Persons w ith Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue is whether Respondent , Agency for Persons with

Disabilities (Agency), h ad a reasonable basis in law and fact to

initially deny Petitioner's application for a license to operate

a group home , or whether other circumstances were present that

would make an award of attorney's fees and costs unjust within

the meaning of section 5 7.111(1)(e), Florida Statutes (2015) .

PRELIMINARY STATEMENT

On October 6, 2014, the Agency issued proposed agency

action denying an application by Petitioner for a license to

operate a group home on the ground the application was

incomplete . Petitioner r equested a hearing , and the matter was

referred to DOAH and assigned Case No. 14 - 5132. In a

Recommended Order issued by former Administrative Law Judge

Thomas P . Crapps on March 31, 2015, t he application was deemed

complete by operation of law , and a reco mmendation was made that

the Agency either grant or deny the application . In a Final

Order issued on April 22, 2015, the Agency adopted the

Recommended Order in toto , approved the application , and issued

a license .

On June 19, 2015, Petitioner filed its Motion for

Attorneys' Fees and Costs pursuant to section 57.111. The

Agency does not dispute that the amount of fees and costs

claimed by Petitioner is reasonable, Petitioner is the

prevailing party, and Petitioner is a small business entity.

The only d isputed issue is whether the Agency 's decision to

initially deny the application was substantially justified or

special circumstances are present that would make an award of

fees and costs unjust .

At the final hearing, t he Agency presented two witnesses.

Respondent 's Exhibits A through H were accepted in evidence.

There is no transcript of the hearing . Proposed findings

of fact and conclusions of law were filed by the parties and

have been considered in the preparation of th is Final Order.

The unders igned has also relied on the record in Case No. 14 -

5132 .

FINDINGS OF FACT

1. Respondent is the state agency that licenses group

homes pursuant to section 393.067. On June 13, 2014,

Petitioner 's corporate agent , Lavonda Hargrove, filed with the

Agency an application for licensure to operate a group home

facility in Wesley Chapel, Florida . Relevant to this dispute is

a requirement by the Agency that if the applicant does not own

the property on which the facility will be located, it must

submit a copy of a fully - executed landlord/tenant lease

agreement with the application packet . Petitioner did not own

the property on which the facility would be operated and was

required to comply with this requirement.

2. The initial application packet filed with the Ag ency

was missing a number of required items and some questions on the

application were left blank . However, as found by Judge Crapps,

a copy of an undated and partially signed residential lease

agreement was submitted with the application. As noted below ,

its whereabouts are unknown.

3. On Ju ly 29, 2014, or more than 30 days after the

application was filed, 1/ Myra Leitold, a R esidential P rogram

S upervisor in Tampa who reviewed the application, emailed

Hargrove and informed her that the application had "t o be

completed in its entirety" and described areas of the

application that required additional information. Leitold also

attached to the email a generic checklist of 36 required

documents for an initial license application , one of which was a

"Landlord A greement/Lease." While she identified some, but not

all, of the items on the checklist that were missing, s he did

not specifically mention that a landlord agreement/ lease had not

been filed.

4 . In response to the email, o n September 12, 2014,

Hargrove su bmitted a second application with the supplemental

information requested in Leitold's email. Because a lease

agreement had already been su bmitted with the first application ,

and no mention of one was made in Leitold's email, it is

reasonable to assume tha t this was the reason why Hargrove did

not submit another copy with her second application.

5. To make sure that her application was complete, o n

September 17, 2014, Hargrove emailed Leitold and stated the

following:

This is a follow up email to confirm your

rece i pt of requested items for licensure of

the Wesley Chapel home at 31733 Baymont

Loop. Please advise if additional

information is needed. Also, do you have

any idea when you will be available to

inspect the home?

6. In response to Hargrove's e mail, Leitold promptly sent

an email stating as follows:

I did receive the documents forwarded last

week however, have not had an opportunity to

review them. I should be able to get to

them in the next week or two.

7. After her review of the second appl ication was

completed, Leitold believed it was still incomplete because

there was no lease agreement in the packet . At the underlying

hearing, Leitold acknowledged that it was possible the lease

agreement had been filed with the initial application on

June 13, 2014, but thought it unlikely the Agency had lost the

document. As found by Judge Crapps, however, an agreement was

filed but i ts whereabouts are unknown. In any event, Leitold

did not advise Hargrove that her application was still

incomplete. Instead, she forwarded the second application ,

without a lease agreement, to the Central Office in Tallahassee

for final disposition. Applications are sent to Tallahassee

only if they are incomplete or involve pending violations by the

applicant ; otherwi se, action on the application is made at the

local level. Incomplete applications are always denied , and

Leitold knew that when the application was forwarded to

Tallahassee, this would be the final disposition of the matter .

8. After the application pack et was reviewed by the

Central Office in Tallahassee , with no executed lease agreement,

on October 6, 2014, the Agency issued its Notice of License

Application Denial for Group Home (Notice) based upon the ground

that it did not include a lease agreement. ( Presumably, t he

application satisfied all other licensing requirements.) T wo

Agency employees in Tallahassee who reviewed the application ,

Kim Walsh and Tom Rice, testified without dispute that a lease

agreement is an essential part of an application, a nd without

the document, they had no choice under the law except to deny

the application. Neither Walsh nor Rice had knowledge that a

partially executed and unsigned lease agreement had been

submitted with the first application but was apparently lost or

misplaced , or that Lietold had failed to notify Hargrove that

this specific item was missing before the packet was sent to

Tallahassee .

9. O n October 23, 2014, Hargrove requested a hearing to

contest the decision . Although she was knew why the applicatio n

was denied, i n her request for a hearing, Hargrove did not

indicate any specific material facts in the Notice that were in

dispute . Moreover, she never indicated that a lease agreement

had been filed with her initial application. According to

Mr. Ri ce, the Agency's Program Administrator, h ad Hargrove

disclosed this fact in her request for a hearing or brought it

to the attention of Agency personnel in a timely manner, the

matter could have been resolved without a hearing.

10. A formal hearing was conducted by Judge Crapps on

February 24, 2015. Just prior to the hearing, a lease agreement

was provided to the Agency in the form of a proposed exhibit .

Because it was not fully executed , the case was not settled, and

an evidentiary hearing was conduct ed. At the hearing, Hargrove

testified that the fully executed lease agreement was at her

home.

1 1 . In his Recommended Order, Judge Crapps accepted

Hargrove's testimony that a lease agreement had been filed with

the initial application but made no find ing as to what happened

to th e document. Even if the agreement was lost by the Tampa

office, or was not fully executed, he observed that the Agency

did not notify Hargrove within 30 days after the application was

filed of any apparent errors or omissions , as required by

section 120. 60(1). For this reason, he deemed the application

complete by operation of law . He also criticized the Agency for

failing to specifically identify the missing lease agreement in

its email sent on July 29, 2014 . He recommended that the Agency

re consider the application and make a decision to approve or

deny. The Agency's Final Order adopted the Recommended Order

without change and approved the application.

CONCLUSIONS OF LAW

1 2 . An award of attorney's fees and costs shall be made to

a prevailing small business party in any administrative

proceeding initiated by a state agency unless the actions of the

agency were substantially justified or special circumstances

exist which would make the award unjust. See § 57.111(4) (a),

Fla. Stat. A proceeding is substantially justified "if it had a

reasonable basis in law or fact at the time it was initiated by

a state agency." § 57.111(3)(e), Fla. Stat. Facts coming to

light after the decision was made cannot be used to second - guess

the action. See, e.g. , Ag . for Health Care Admin. v . Gonzalez ,

657 So. 2d 56 (Fla. 1st DCA 1995). Thus, the sole focus is on

the information available to the Agency at the time it acted.

1 3 . The Agency has stipulated that Petitioner is the

prevailing small business party and the amount of requested fees

and costs is reasonable. Th us, the only issue to decide is

whether there was a reasonable basis in law and fact for the

Agency's decision to deny the application, based on the

information available at the ti me of its decision , or whether

special circumstances exist that would make an award unjust .

Once the prevailing small business party proves that it

qualifies as such under section 57.111, the Agency has the

burden to show substantial justification or spec ial

circumstances. Dep't of HRS v. S. Bch. Pharmacy, Inc. , 635

So. 2d 117, 122 (Fla. 1st DCA 1994) . If the Agency can make

neither showing, an award of fees and costs is mandatory.

1 4 . Based upon the information available at the time a

decision was m ade , the Agency had a reasonable basis in fact to

deny the application as being incomplete. This is b ecause t he

application packet reviewed by the Central Office lacked a lease

agreement ; and , b y law , the Agency had no choice except to deny

the applicatio n. This was reasonable and appropriate

governmental action based on the information available to the

Agency at that time. Although Petitioner later produced

evidence to show that a partially executed lease agreement had

been submitted with the first appl ication, and Hargrove was

never told that this item was missing from her application,

these facts alone are not sufficient to find that the Agency

could not in good faith rely on the application packet forwarded

to Tallahassee for its review. See, e.g. , C asa Febe Ret. Home,

Inc. v. Ag . for Health Care Admin. , 892 So. 2d 1103, 1105 (Fla.

2d DCA 2004); Ag . for Health Care Admin. v. MVP Health , 74

So. 3d 1141 (Fla. 1st DCA 2011). Petitioner has failed to

demonstrate otherwise, or to prove that the Agency was not

substantially justified in denying the application. 2/

1 5 . Although t he second defense is rarely used by state

agencies, s pecial circumstances are present here that make an

award unjust. Had Petitioner's representative indicated in her

request for a hearing that a lease agreement was submitted with

the initial application, or otherwise raised this issue in a

timely manner, or submitted a fully executed lease agreement to

the Agency prior to the hearing, the dispute could have been

resolved informal ly. In other words, had any one of those

relatively simple steps been taken, it would have allowed the

Agency to correct a mistake before the case proceeded to

hearing. Accordingly, these circumstances can be fairly

characterized as "special," and make a n award of fees and costs

unjust.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioner's Motion for Attorney's Fees and

Costs is denied.

DONE AND ORDERED this 18th day of November, 201 5 , in

Talla hass ee, Leon County, Florida.

S

D . R. ALEXANDER

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 18th day of November, 2015

ENDNOTE S

1/ Pursuant to section 120.60(1), w ithin 30 days after an

application is filed, an agency must notify an applicant of any

apparent omissions or errors. I f no tification is not provided

within this timeframe, an application is considered complete, and

action on the application must be taken within 90 days

thereafter, or the application is deemed to be approved, subject

to certain conditions. Id. One condition requires that the

applicant affirmatively advise the agency that it intends to rely

upon the default provisions. Id. According to the Recommended

Order, Petitioner did not avail itself of this procedure and

therefore the statutory default provisions were not triggered.

2/ Petitioner essentially seeks to impute the actions of Lie t old

to the decision makers in Tallahassee , who acted in good faith ,

based on the information before them, and had no knowledge

regarding the lost or misplace d lease a greement or Lietold's

failure to advise Hargrove about the missing item. Petitione r

cites no administrative decision or appellate case to support

this proposition .

COPIES FURNISHED:

Geoffrey E. Parmer, Esquire

Dogali Law Group, P.A.

Suite 1100

101 East Kenne dy Boulevard

Tampa , Florida 33602 - 5146

Kurt E. Ahrendt , Esquire

A gency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esp lanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

David M. De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

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, Fl orida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of 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 Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.