20-002087F Agency For Persons With Disabilities vs. Meadowview Progressive Care Corporation Group Home, Owned And Operated By Meadowview Progressive Care Corporation Status: Closed DOAH Final Order on Thursday, January 14, 2021.

Summary: Reasonable attorney's fee for defending two or three counts of administrative complaint seeking to discipline the license to operate a group home facility is $16,000.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A GENCY FOR P ERSONS WITH D ISABILITIES ,

Petitioner ,

vs. Case No. 20 - 2087F

M EADOWVIEW P ROGRESSIVE C ARE

C ORPORATION G ROUP H OME , O WNED AND

O PERATED BY M EADOWVIEW P ROGRESSIVE

C ARE C ORPORATION ,

Respondent .

/

F INAL O RDER

On October 26 , 2020, Robert E. Meale, Administrative Law Judge of the

Division of Administrative Hearings (DOAH), conducted the final hearing by

Zoom .

A PPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent: G. Barrington Lewis, Esquire

Law Office of George B. Lewis

10061 53rd Way South, Suite 1004

Boynton Beach, Florida 33437

S TATEMENT OF T HE I SSUE

The issue is to determine the amount of a reasonable attorney's fee to be

paid by Petitioner (Agency) to Respondent (M eadowview), pursuant to

section 57.105(1) and (5), Florida Statutes.

P RELIMINARY S TATEMENT

By recommended order in DOAH Case 19 - 1812FL issued on November 26,

2019 (Recommended Order) , the undersigned administrative law judge

recommended that the Agency enter a final order finding Meadowview not

guilty of the material allegations contained in an Administrative Complaint

seeking to impose discipline on Meadowview's license to operate a group

home facility. The R ecommended O rder retained jurisdiction to award

Meadowview a reasonable attorney's fee under section 57.105(5). By final

order in DOAH Case 19 - 1812FL issued on January 29, 2020, the Agency

substantially adopted the R ecommended O rd er, and the Agency's f inal o rder

was not appealed.

DOAH subsequently assigned the fee case the case number first set forth

above. On May 28, 2020, the undersigned administrative law judge conducted

a hearing on the Agency's liability for a reasonable attorney's fee, but not on

the amount of such fees . The administrative law judge issued a final order on

June 29, 2020, and an amended final order, which corrected a reference to a

court opinion, on July 6, 2020 (Partial Final Order). The Agency appealed t he

Partial Final Order, but dismissed the appeal because it was premature.

The Partial Final Order determines that the Agency is liable for a

reasonable attorney's fee in connection with two of the three counts in the

Administrative Complaint. The Partial Final Order concludes that the law

did not support the claim in Count I that Meadowview's license was subject

to discipline because the Department of Children and Families (DCF) had

verified that an officer and director of Meadowview was a person responsi ble

for the exploitation of several vulnerable adults residing in Meadowview's

group home facility (Verified Report) . The Partial Final Order concludes that

the material facts did not support the claim in Count II that the omission of

any mention of the V e rified R eport in Meadowview's license renewal

application constituted a false representation or omission of a material fact,

because the Agency was aware of the V erified R eport prior to the filing of the

renewal application. 1

At the hearing on October 26, 2020 , Meadowview called two witnesses and

offered into evidence five exhibits: Meadowview Exhibits 1 through 5 . The

Agency called one witness and offered into evidence no exhibits. All exhibits

were admitted into evidence.

The court reporter filed the tr anscript on November 30, 2020. The parties

filed proposed final orders on December 17, 2020.

F INDINGS OF F ACT

1. In representing Meadowview in DOAH Case 19 - 1812FL,

G. Barrington Lewis (Counsel) entered into a retainer agreement with

Meadowview specifying the payment of $300 per hour for legal services plus

costs. The expert witness called by each party testified to the reasonableness

of this hourly rate, so it is accepted.

1 In its proposed final order, the Agency states that its liability for a reasonable attorney's fee

under Count II arises under a lack of supporting facts -- section 57.105(1)(a) -- and a lack of

supporting law -- section 57.105(1)(b). These were the issues ident ified in the " Preliminary

Statement " of the Partial Final Order. However, the " Final Order " of the Partial Final Order

predicates the Agency's liability on section 57.105(1)(b) for Count I and only section

57.105(1)(a) for Count II. See also Partial Final Order, para. 7. In other words, the Partial

Final Order did not predicate the Agency's liability for a reasonable attorney's fee under

Count II on a lack of supporting law, only a lack of supporting facts.

2. In determining the reasonable amount of time that Counsel expended

in DOAH Case 19 - 1812 FL, it is necessary to determine how much time

should be allocated to Count III, for which Meadowview is not entitled to a

reasonable attorney's fee. Counsel testified that he would allocate no more

than 10% of his total time to Count III, on which Meadowv iew's officer and

director and a state inspector each testified briefly . For this count, the

factual issues were straightforward, and no significant legal issues were

involved. Counsel devoted almost his entire opening statement in DOAH

Case 19 - 1812FL to Counts I and II, content to allow the disposition of

Count III to be based entirely on the straightforward testimony of the two

witnesses, as the unscreened purported employee herself never testified.

Based on Counsel's testimony , it is found that he expended 10% of the total

time on Count III.

3. Meadowview Exhibit 3 is a consolidated statement of services rendered

by Counsel. Each dated entry includes a brief description of the service

provided, such as the drafting of a petition requesting a fo rmal hearing; the

hours broken down into quarter hours; the hourly rate of $300; and the

product of the hours times the hourly rate. Meadowview Exhibit 3

documents total billings of 80.25 hours and $24,075, as to which

Meadowview has been paid $8300.

4. Red ucing these billings by 10% for work on Count III would leave total

billings of about 72.25 hours and exactly $21,667.50. Counsel testified that

he devoted about 45% of his time to Count I and 45% of his time to Count II.

Subject to the findings below as t o Count I, this general allocation of time

between Counts I and II is reasonable. Counsel thus spent about 36 hours or

$10,800 of time on each count.

5. Both expert witnesses were extremely helpful in providing guidance,

based on their substantial experience, in determining the time that Counsel

could reasonably have expended in connection with Counts I and II. Both

expert witnesses were thus persuasive in their presentations.

6. Meadowview's expert witness applied the 10% factor for Count III . She

further reduced Counsel's billings by about 10 hours , including 7.5 hours for

June 26, 28, and 30, 2020, spent in preparing for and participating in the

hearing that resulted in the Partial Final Order -- in other words, seeking

"fees for fees." The remainder of her reduction was for clerical work

consisting of entries of 0.25 hour each. With these adjustments,

Meadowview's expert witness concluded that 62 hours or about $18,600 was

reasonable for defending Counts I and II in DOAH Case 19 - 1812FL.

7. The Agency's expert witness testified that, at a "healthy" hourly rate of

$300, an attorney is not entitled to "mini mum/mandatory" billings of

0.25 hours for tasks that require considerably less than 15 minutes. L ess

persuasively, the Agency's expert witness objected to the s ummary nature of

the services described in Meadowview Exhibit 3. In general, t his criticism is

more applicable toward relatively large billing increments , b ut the two

largest increments -- 5.0 and 4.0 h ou rs -- were for attending hearings. The

Agency's expert w itness concluded that a range of a reasonable attorney's fee

for Counts I and II was from $14,000 to $16,000.

8. There is thus a difference of only $2600 to $3600 between the two

expert witnesses, which suggests a commendable level of integrity in

Counsel's billing practices . 2 I t is found, based on the foregoing, that a

reasonable attorney's fee is $16,000.

9. A s between the amounts offered by the two expert witnesses, the lower

amount is further supported because Count I never stated a claim on which

2 The Agency's expert witness shared this opinion as to Counsel, but aptly added that , when

billing Meadowview, Counsel was unaware of the prospect of a third - party payor of his fees.

The first suggestion of such a payor was made in the Recommended Order at the instance of

the undersigned administrative l aw judge, as he is obligated to do under section 57.105(1)

and (5) based on the statutory provisions' use of "shall" when describing the obligations of the

administrative law judge to award a reasonable attorney's fee when the statutory conditions

are met .

relief cou ld be granted , 3 nor could it have stated such a claim, 4 and thus was

susceptible to a motion for a summary relief , pursuant to section

120.57(1)(i). The more rigorous analysis of the billing by the Agency's expert

witness adequately accounts for a reductio n from a timely motion for

summary relief. However, the more generous analysis of the billing by

Meadowview's expert witness requires an adjustment for this reduction.

10. The timing of when Counsel reasonably should have file d such a

motion is difficult to determine. Some delay would follow from the fact, as

testified by Counsel , that, prior to the hearing in DOAH Case 19 - 1812FL, he

found a recommended order allowing the Agency to pierce the corporate veil

and impose discipline on the licensee for a determination by DCF that its

officer or director was verified for the abuse, neglect, or exploitation of a

vulnerable adult . 5 Thus , Counsel testified that a timely motion for summary

relief as to Count I would have saved only four or five hours of time, or

$1200 to $1500. Partly crediting this testimony, t he administrative law

judge finds that the savings would have been closer to ten hours, so as to

reduce the $18,600 in fees found by Meadowview's expert witness to about

$16,000 .

C O NCLUSIONS OF L AW

11. DOAH has jurisdiction. §§ 120.569 , 120.57(1) , and 57.105(1) and (5) .

12. Section 57.105(1) and (5) provides:

(1) Upon the courtÔs initiative or motion of any

party, the court shall award a reasonable attorneyÔs

fee, including prejudgment interest, to be paid to

the prevailing party in equal amounts by the losing

party and the losing partyÔs attorney on any claim

3 Amended Final Order, paras. 10 - 26 and 31.

4 See Bierlin v. Lucibella , 955 So. 2d 1206, 1208 (Fla. 4th DCA 2007) (per curiam).

5 Such a recommended order may have been discussed in the Amended Final Order at

para graphs 27 - 30.

or d efense at any time during a civil proceeding or

action in which the court finds that the losing party

or the losing partyÔs attorney knew or should have

known that a claim or defense when initially

presented to the court or at any time before trial:

(a) Wa s not supported by the material facts

necessary to establish the claim or defense; or

(b) Would not be supported by the application of

then - existing law to those material facts

* * *

(5) In administrative proceedings under

chapter 120, an administrative law judge shall

award a reasonable attorneyÔs fee and damages to

be paid to the prevailing party in equal amounts by

the losing party and a losing partyÔs attorney or

qualified representative in the same manner and

upon the same basis as pro vided in subsections (1) -

(4). Such award shall be a final order subject to

judicial review pursuant to s. 120.68. If the losing

party is an agency as defined in s. 120.52(1), the

award to the prevailing party shall be against and

paid by the agency.

13. Meado wview bears the burden of proving the amount of its

reasonable attorney's fee. See U.S. Auto. Ass'n v. Kiibler , 364 So. 2d 57, 59

(Fla. 3d DCA 1978). When a party is entitled to a reasonable attorney's fee

for prosecuting or defending some, but not all, claims in a case, the party

seeking the fee must differentiate between the claims or defenses, unless

they are " inextricably intertwined." See, e.g. , Ocean Club Cmty. Ass'n, Inc. v.

Curtis , 935 So. 2d 513, 516 (Fla. 3d DCA 2006). In this case, Count III was

"separate and distinct" from Counts I and II and thus Meadowview is

required to prove its reasonable attorney' s fee in defending these counts.

Ocean Club , 935 So. 2d at 516. A party is not entitled to fees for which its

supporting documents are inadequate, confusing, imprecise, vague, or

incomprehensible. Van Diepen , P.A. v. Brown , 55 So. 3d 612, 614 (Fla. 5th

DCA 2011) (citing Ocean Club , 935 So. 2d 513, and Crown Custom Homes,

Inc. v. Sabatino , 18 So. 3d 738 (Fla. 2d DCA 2009). However, Meadowview's

documentation is adequate and supports the present award. Lastly , a s

Meadowview's expert witness noted, a party is not entitled to "fees for fees."

See, e.g. , Wood v. Haack , 54 So. 3 d 1082, 1084 (Fla. 4th DCA 2011).

14. For the reasons set forth in the Findings of Fact, Meadowview has

proved that it is entitled to a reasonable attorney's fee in defending Counts I

and II in DOAH Case 19 - 1812FL in the amount of $16,000.

O RDER

It is

O RDERED that the Agency for Persons with Disabilities pay Meadowview

Progressive Care Corporation a reasonable attorney's fee of $16, 000 ,

pursuant to section 57.105(1) and (5).

D ONE A ND O RDERED this 14 th day of January , 202 1 , in Tallahassee, Leon

County, Florida.

S

R OBERT E. M EALE

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 1 4 th day of January , 202 1 .

C OPIES F URNISHED :

G. Barrington Lewis, Esquire

Law Office of George B. Lewis

10061 53rd Way South , Suite 1004

Boynton Beach, Florida 33437

(eServed)

Trevor S. Suter, Esquire

Agency for Persons With Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Danielle Thompson , Senior Attorney/Agency Clerk

Agency for Persons with Disabilities

40 30 Esplanade Way, Suite 309

Tallahassee, Florida 32399 - 0950

(eServed)

Francis Carbone, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Pers ons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 ori ginal 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 th e d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.