17-003012F Rebecca Coleman Curtis vs. Department Of Health, Board Of Psychology Status: Closed DOAH Final Order on Tuesday, August 22, 2017.

Summary: Petitioner is entitled to reasonable fees and costs pursuant to section 120.595(4), Florida Statutes, as the prevailing party in Case No. 16-6167.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBECCA COLEMAN CURTIS,

Petitioner,

vs. Case No. 17 - 3012F

DEPARTMENT OF HEALTH, BOARD OF

PSYCHOLOGY,

Respondent.

_______________________________/

FINAL ORDER

This case was opene d for the purpose of resolving the issue

of attorneyÓs fees and costs sought by Petitioner, as a result of

the Final Order entered in Rebecca Coleman Curtis v. Department

of Health, Board of Psychology , Case No. 16 - 6167.

APPEARANCES

For Petitioner: Edwi n A. Bayó, Esquire

Paul Drake, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

For Respondent: Diane L. Guillemette, Esquire

R obert Milne, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to attorneyÓs fees and costs

pursuant to section 120.595(4), Florida Statutes (2017).

PRELIMINARY STATEMENT

On March 13, 2017, an Amended Recommended O rder was entered

in Case No. 16 - 6167, concluding that statements made by

Respondent, Department of Health, Board of Psychology, Ðrelated

to re consideration or a second review of approved applications

for licensure after the receipt of examination scores and before

the issuance of the license meet the definition of a rule and

constitute an unpromulgated rule.Ñ The Amended Recommended Order

retai ned jurisdiction to award reasonable fees and costs upon

entry of a final order, pursuant to section 120.595(4). The

Board of Psychology entered a Final Order on May 11, 2017,

adopting the Findings of Fact, Conclusions of Law, and

recommended disposition in the Amended Recommended Order.

On May 15, 2017, Petitioner filed a Motion for Award of

AttorneyÓs Fees and Costs, which was opened as DOAH C ase

No. 17 - 3012 F . A scheduling O rder was issued May 23, 2017,

directing the Department of Health, Board of Psyc hology, to

identify any dispute regarding the entitlement to an award or the

reasonableness of the fees sought, as well as a statement

concerning whether a hearing was requested. Petitioner was also

afforded an opportunity to request a hearing in light of any

response by the Department.

On June 6, 2017, Respondent responded, advising that the

parties were hopeful that they would settle the case, but that

any settlement would have to be approved by the Board of

Psychology , a collegial body and a party to th e case, and that

the BoardÓs next meeting was scheduled for July 21, 2017. The

parties requested that a status conference be scheduled after the

BoardÓs July meeting . In response, an Order Requiring Status

Report was issued on June 8, 201 7 , directing the parties to file

a joint status report no later than July 28, 2017, advising

whether further proceedings are necessary to resolve the motion.

On July 5, 2017, the parties filed a Joint Motion to Relinquish

Jurisdiction w ithout Prejudice so that the Board of Psychology

could consider the proposed settlement ; and on that same day, the

motion was granted , and the file of Division of Administrative

Hearings was closed.

On August 16, 2017, the parties filed a Joint Motion to

Reopen Case for Entry of Final Order Adopting the Board of

PsychologyÓs Order on AttorneyÓs Fees and Cost. This Final Order

is being issued as a result of the partiesÓ m otion.

FINDING S OF FACT

1. A Final Order was issued on May 11, 2017, finding that

the Board of Psychology relied on an un adopted rule when it

denied PetitionerÓs application for licensure.

2. Petitioner timely filed a Motion for Award of AttorneyÓs

Fees and Costs under section 120.595(4), with the Division of

Administrative Hearings.

3. Prior to any hearing on the m otion, the parties reached

a settlement in the amount of $25,000 to be paid to Petitioner

for fees and costs incurred in the underlying action. The

parties agreed to have the matter forwarded to the Board of

Psychology for consideration of the settlement, and fo r authority

to have the administrative law judge re - open the file upon

approval of the settlement for the purpose of having a final

order entered in accordance with the terms of section 120.595(4).

4. The administrative law judge entered an Order Closing

File in order to allow the parties to present the proposed

settlement to the Board of Psychology , without prejudice for the

case to be re - opened should the Board approve the terms of the

settlement.

5. The Board of Psychology has approved the settlemen t at

issue in this proceeding, and the parties have requested a final

order approving that settlement.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over this proceeding pursuant to sections 120.569, 120.57(1), and

120.595 (4).

7. Normally, when the parties to a proceeding before the

Division of Administrative Hearings reach a settlement resolving

their dispute, the Division does not become involved in the

settlement process. However, as the parties here have pointed

out, section 120.595(4) provides in pertinent part:

(4)(a) If the appellate court or

administrative law judge determines that all

or part of an agency statement violates s.

120.54(1)(a), or that the agency must

immediately discontinue reliance on the

statement and any substantially similar

statement pursuant to s. 120.56(4)(f), a

judgement or order shall be entered against

the agency for reasonable costs and

reasonable attorneyÓs fees, 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.

8 . Petitioner meets the requirements specified in section

120.595(4) for an award of attorneyÓs fees and costs. While the

language of the statute could be clearer, it appears to

contemplate that the award would be made by the court or the

administrative law judge as opposed to the agency, because the

agency is the party against whom the award is made.

9 . Petitioner and the Board of Psy chology have agreed to an

award in the amount of $25,000, representing both fees and costs.

The amount of the award is reasonable.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Board of Psychology shall pay t o

Petitioner, Rebecca Coleman Curtis, Ph.D., $25,000, as an award

of attorneyÓs fees and costs pursuant to section 120.595(4),

Florida Statutes. The check shall be made payable to the law

firm of Grossman, Furlow & Bayó, consistent with the stipulation

of the parties.

DONE AND ORDERED this 22nd day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

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 22nd day of August , 2017 .

COPIES FURNISHED:

Edwin A. Bayó, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Paul Drake, Esquire

Grossman, Furlow and Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Ba ld Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Diane L. Guillemette, Esquire

Robert Milne, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Allen Hall, Executive Director

Boa rd of Psychology

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 3255

(eServed)

Celeste Philip, M.D., M.P.H.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(eServe d)

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 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.