98-005480F Charles R. Pierce vs. Department Of Children And Family Services Status: Closed DOAH Final Order on Monday, March 15, 1999.

Summary: Petitioner not entitled to attorney`s fees and costs pursuant to Section 57.111, Florida Statutes, because he is not a prevailing small business party.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES R. PIERCE, )

)

Petitioner, )

)

vs. ) Case No. 98-5480F

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

______________________________)

FINAL ORDER

A formal hearing in this case was held on January 25, 1999,

in Tallahassee, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Suzanne F.

Hood.

APPEARANCES

For Petitioner: Charles R. Pierce, pro se

2910 Jim Lee Road

Tallahassee, Florida 32301

For Respondent: John R. Perry, Esquire

Department of Children

and Family Services

2639 North Monroe Street, Suite 252A

Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUES

The issues are whether Petitioner was a prevailing small

business party in Division of Administrative Hearings Case

No. 98-2043, and if so, whether he is entitled to reimbursement

of attorney's fees and costs pursuant to Section 57.111, Florida

Statutes.

PRELIMINARY STATEMENT

On December 14, 1998, Petitioner Charles R. Pierce

(Petitioner) filed a Request for Reimbursement of Attorney's Fees

and Costs pursuant to Section 57.111, Florida Statutes. Said

request sought reimbursement of attorney's fees and costs

relative to Division of Administrative Hearings (DOAH) Case

No. 98-2043. Petitioner alleged that action by Respondent

Department of Children and Family Services (Respondent) in that

case was unreasonable and unwarranted because Petitioner did not

have a foster care license to revoke.

DOAH issued an Initial Order on December 18, 1998. The

Initial Order required Respondent to file a written statement,

setting forth its written defenses to the petition, within twenty

days of the date of said order. Accordingly, Respondent's

written statement was not due until January 7, 1999.

Respondent filed a Motion for Extension of Time to File

Written Defenses to Petitioner's Request for Reimbursement of

Attorney's Fees and Cost on December 29, 1998. Said motion

requested the extension of time on grounds that Respondent's

counsel, who was most familiar with the case, would be out of

town until January 4, 1999.

Petitioner filed responses in opposition to Respondent's

Motion for Extension of Time to File Written Defenses to

Petitioner's Request for Reimbursement of Attorney's Fees on

December 31, 1998, and January 4, 1999. In both responses,

Petitioner incorrectly argued that the subject motion was

untimely and without justification on its merits.

On January 5, 1999, Respondent filed a Motion for Order

Compelling Signature of Releases and a Motion for Summary Final

Order. Petitioner filed responses in opposition to these motions

that same day.

On January 6, 1999, Respondent filed a Motion to Strike

Petitioner's Request for Reimbursement of Attorney's Fees and

Costs. Petitioner also filed a timely Response to Initial Order

on January 6, 1999.

On or about January 7, 1999, the undersigned held a

telephone conference with the parties. After hearing oral

argument, the undersigned determined that an evidentiary hearing

was necessary to determine whether Petitioner was a prevailing

small business party pursuant to Section 57.111, Florida

Statutes.

On January 7, 1999, Petitioner filed a composite exhibit

consisting of numerous documents. Petitioner did not serve

Respondent with copies of said documents. The undersigned issued

an Order Publishing Ex Parte Communication on January 11, 1999.

On January 11, 1999, the undersigned issued an Order

denying, without prejudice, Respondent's Motion for Summary Final

Order and Respondent's Motion to Strike Petitioner's Request for

Attorney's Fees and Costs. The undersigned also reserved ruling

on Respondent's Motion for Order Compelling Signature of

Releases. These motions are hereby denied.

On January 11, 1999, the undersigned issued a Notice of

Hearing, which scheduled this case for hearing on January 25,

1999. This notice states that the issue was whether Petitioner

is a prevailing small business party pursuant to Section 57.111,

Florida Statutes.

On January 11, 1999, Respondent filed a Motion for Official

Recognition. Copies of certain pleadings in DOAH Case No 98-2043

were attached to the motion. This motion was granted ore tenus

during the formal hearing.

On January 13, 1999, Petitioner filed a Motion for Official

Recognition. Copies of certain pleadings and discovery responses

in DOAH Case No. 98-2043 were attached to the motion. This

motion was granted ore tenus during the formal hearing.

On January 19, 1999, Petitioner filed a Motion for Ruling as

a Prevailing Small Business. This motion is hereby denied for

the reasons set forth below in the Findings of Fact and

Conclusions of Law.

On January 25, 1999, Respondent filed a Motion for Costs and

Attorney's Fees. Petitioner filed a response in opposition to

this motion that same day. This motion is hereby denied for the

reasons set forth below in the Findings of Fact and Conclusions

of Law.

During the hearing, Petitioner testified on his own behalf.

Petitioner's testimony incorporated the facts alleged and

arguments presented in his Motion for Ruling as a Prevailing

Small Business Party dated January 19, 1999.

Respondent presented the testimony of three witnesses.

Respondent offered five exhibits, which were accepted into

evidence.

The parties did not file a transcript of the proceeding.

They filed their proposed recommended order on February 4, 1999.

FINDINGS OF FACT

1. On April 3, 1996, Respondent issued Petitioner a

provisional license to operate a foster home. This license was

effective until August 3, 1996.

2. On August 3, 1996, Respondent lifted the provisional

license and issued Petitioner a regular foster home. The latter

was effective through March 31, 1997.

3. On March 31, 1997, Respondent again issued Petitioner a

provisional license. This provisional license was effective

until July 31, 1997.

4. On July 31, 1997, Respondent issued Petitioner a regular

foster home license. This license was effective until March 31,

1998.

5. On February 27, 1998, Respondent issued an

Administrative Complaint seeking to revoke Petitioner's foster

home license. Said complaint gave Petitioner the right to

request an administrative hearing to contest the factual

allegations contained within the complaint.

6. Petitioner's counsel filed an Answer to Administrative

Complaint dated March 27, 1998. Said answer requested a formal

administrative hearing to contest the factual allegations

contained within the complaint.

7. Respondent referred Petitioner's request for a formal

hearing to the DOAH on May 4, 1998. DOAH assigned Case

No. 98-2043 to this matter.

8. On October 16, 1998, Petitioner's counsel filed a Motion

for Summary Judgment and/or Motion to Dismiss in DOAH Case

No. 98-2043. Said motion asserted that the Administrative

Complaint should be dismissed because Petitioner had never had

foster children placed in his home. The motion also references,

among other things, the "denial and suspension" of Petitioner's

foster home license and the "subsequent denial of re-licensing in

April 1998." The motion does not argue that Petitioner's current

license had expired, rendering the issue of revocation moot. The

motion was denied by order dated October 22, 1998.

9. On October 27, 1998, Petitioner's counsel filed a Notice

of Withdrawal of Request for Hearing in DOAH Case No. 98-2043. A

telephone conference on the motion was held that same day.

10. On October 28, 1998, an Order Closing File was entered

in DOAH Case No. 98-2043. This order cancelled the formal

hearing scheduled for November 2-3, 1998, and relinquished

jurisdiction to Respondent.

11. On December 4, 1998, Respondent entered a Final Order

in DOAH Case No. 98-2043, revoking Petitioner's foster home

license. Petitioner did not appeal the Final Order and the time

for an appeal has expired.

12. At the hearing on the instant case, Petitioner

presented no evidence that he prevailed in DOAH Case No. 98-2043.

The pleadings and orders entered in that case conclusively

establish that he did not prevail.

13. Likewise, Petitioner presented no evidence that he was

a small business party. Family foster homes are distinct from

larger operations, such as residential child-care facilities,

which might under some circumstances be construed as businesses.

14. A foster home license is not a permit to engage in a

business activity for profit. Instead, foster home parents act

as temporary surrogate parents. Payments to foster parents are

reimbursements for moneys advanced by the parents for the care of

children placed in their care. The payments are not fees for

services rendered. They are not taxable as income.

15. Through out the proceedings in the instant case,

Petitioner maintained that he never authorized his attorney to

withdraw his request for formal hearing in DOAH Case No. 98-2043

as to the merits of that case. He did not personally receive a

copy of his counsel's Notice of Withdrawal of Request for

Hearing, the Order Closing File, or the Final Order until

sometime after January 5, 1999. Therefore, Petitioner filed his

request for fees and costs in the instant case on December 14,

1998, believing that he had prevailed as a small business party

in DOAH Case No. 98-2043. He was under the mistaken impression

that his counsel's withdrawal of his request for hearing and the

subsequent Order Closing File in DOAH Case No. 98-2043 deprived

Respondent, as well as DOAH, of jurisdiction in that case.

16. Even after receiving copies of the above referenced

pleading and orders, Petitioner maintained a good faith belief

that because his foster home license expired on March 31, 1998,

there was no license for Respondent to revoke in its Final Order

dated December 7, 1998. Petitioner mistakenly believed that the

Final Order was a "nullity" because Respondent had not amended

the Administrative Complaint to deny his March 1998 request for

re-licensure.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this

proceeding pursuant to Section 57.111(4)(b), Florida Statutes,

also known as the Florida Equal Access to Justice Act.

18. Section 57.111 (4)(a), Florida Statutes, states as

follows:

(4)(a) Unless otherwise provided by law, an

award of attorney's fees and costs shall be

made to a prevailing small business party in

any adjudicatory proceeding or administrative

proceeding pursuant to chapter 120 initiated

by a state agency, unless the actions of the

agency were substantially justified or

special circumstances exist which would make

the award unjust.

Petitioner has the burden of proving that he is a prevailing

small business party. He has not met that burden.

19. Section 57.111(3)(d), Florida Statutes, defines a small

business party, in pertinent part, as follows:

(d) The term "small business party" means:

1.a A sole proprietor of an unincorporated

business, including a professional practice,

whose principal office is in this state, who

is domiciled in this state, and whose

business or professional practice has, at the

time the action is initiated by a state

agency, not more than 25 full-time employees

or a net worth of not more than $2 million,

including both personal and business

investments; or

b. A partnership or corporation, including a

professional practice, which has its

principal office in this state and has at the

time the action is initiated by a state

agency not more than 25 full-time employees.

20. Section 57.111(3)(c), Florida Statues, defines

"prevailing small business party" as follows:

(c) A small business party is a "prevailing

small business party" when:

1. A final judgment or order has been

entered in favor of the small business party

and such judgment or order has not been

reversed on appeal of the time for seeking

judicial review of the judgment or order has

expired;

2. A settlement has been obtained by the

small business party which is favorable to

the small business party on the majority of

issues which such party raised during the

course of the proceeding; or

3. The state agency has sought a voluntary

dismissal of its complaint.

21. Petitioner is not entitled to attorney's fees and costs

as a prevailing small business party. He did not prevail in DOAH

Case No. 98-2043. His possession of a foster home license from

April 3, 1996, through March 31, 1998 did not constitute a small

business. Therefore, it is unnecessary to determine whether

Respondent's Administrative Complaint was substantially

justified.

22. If a party participates in an administrative

proceeding, or files any pleading, motion, or other paper in such

a pleading, for an improper purpose, such as to harass, cause

unnecessary delay, needlessly increase the cost of the litigation

or for any other frivolous purpose, the Administrative Law Judge

may order the offending party to pay the reasonable costs and

attorney's fees of the other party. Sections 120.569(2)(c) and

120.595(1), Florida Statutes.

23. In this case, Petitioner filed his request for fees and

costs with a good faith belief that he was a prevailing small

business party and that the agency's action was not substantially

justified. As the case proceeded to hearing, he incorrectly

believed that he had prevailed in DOAH Case No. 98-2043 despite

the issuance of the Final Order because his license expired on

March 31, 1998. He also mistakenly believed that holding a

foster home license qualified him as a small business party.

There is no persuasive evidence that Petitioner filed his claim

and maintained the instant case for an improper purpose.

Accordingly, Respondent's Motion for Costs and Attorney's Fees

pursuant to Sections 120.569(2)(c) and 120.595(1), Florida

Statutes, is denied.

ORDER

Based on the above reference Findings of Fact and

Conclusions of Law, Petitioner's Request for Attorney's Fees and

Costs pursuant to Section 57.111, Florida Statutes, is dismissed.

DONE AND ORDERED this 15th day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278 -9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of March , 1999.

COPIES FURNISHED:

John R. Perry, Esquire

Department of Children

and Family Services

Suite 252A

2639 North Monroe Street

Tallahassee, Florida 32399-2949

Charles R. Pierce

2910 Jim Lee Road

Tallahassee, Florida 32301

Gregory D. Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO APPEAL

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 one copy of

the 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.