99-000148F Hayes Group Home, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Tuesday, March 23, 1999.

Summary: Application for attorney`s fees and costs was not timely where application was not filed within 60 days of Petitioner obtaining the relief it sought in the underlying proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAYES GROUP HOME, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-0148F

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

FINAL ORDER

On January 11, 1999, Petitioner Hayes Group Home, Inc.,

filed its Renewed Petition for Attorneys' Fees and Costs pursuant

to Section 57.111, Florida Statutes. On February 2, 1999,

Respondent Agency for Health Care Administration filed its

Memorandum in Opposition to Petitioner's Renewed Petition for

Attorney's Fees and Costs. Although both parties requested an

evidentiary hearing on Petitioner's entitlement to be reimbursed

for its costs and attorney's fees incurred in the underlying

proceeding, there are material facts not in dispute which are

dispositive of this proceeding without the necessity for an

evidentiary hearing.

The following relevant dates are not in dispute. By letter

dated November 12, 1996, the Agency advised Petitioner that its

application for licensure as an assisted living facility was

denied, and Petitioner timely requested an administrative hearing

regarding that denial. The matter was transferred to the

Division of Administrative Hearings in January 1997 and was

assigned DOAH Case No. 97-0162. The DOAH proceeding culminated

in a Recommended Order on July 18, 1997, recommending that

Petitioner's application be granted subject only to Petitioner

providing to the Agency a certain inspection report.

The Agency's September 16, 1997, Final Order did not adop t

the recommendation in the Recommended Order. Rather, the Agency

concluded that Petitioner's application should be further

considered by Agency staff. The Final Order did not grant

Petitioner's application for licensure. Petitioner appealed that

Final Order to the District Court of Appeal of Florida, Fourth

District.

By letter dated April 10, 1998, the Agency forwarded to

Petitioner a standard license to operate as an assisted living

facility for the period of March 19, 1998, through March 18,

2000. On November 5, 1998, Petitioner filed a Notice of

Voluntary Dismissal of its appeal.

The Agency's Memorandum in Opposition to Petitioner's

Renewed Petition for Attorney's Fees and Costs opposes

Petitioner's request for attorney's fees and costs on four bases,

one of which is that the request is not timely made. The

Agency's argument is both meritorious and dispositive of this

proceeding.

Section 57.111(4)(b)2, Florida Statutes, requires that the

application for an award of attorney's fees and costs be made

within 60 days after the date on which the small business party

becomes a prevailing party. In this cause, the underlying

proceeding involved Petitioner's application for licensure.

According to the Renewed Petition for Attorneys' Fees and Costs,

Petitioner received its license to operate an assisted living

facility by transmittal letter dated April 10, 1998. That is the

date upon which Petitioner obtained the relief sought by

Petitioner in the underlying proceeding. Since more than 60 days

elapsed between April 10, 1998, the date on which Petitioner's

application for licensure was granted, and January 11, 1999, the

date on which Petitioner filed its Renewed Petition for

Attorneys' Fees and Costs, the Petition filed in this cause is

untimely.

In its Reply Memorandum in Support of Its Renewed Petition

for Attorneys' Fees and Costs, Petitioner admits that the

granting of a license to Petitioner rendered moot Petitioner's

appeal of the Agency's Final Order in the underlying proceeding.

Petitioner argues, however, that its Petition in this cause was

filed timely because it was filed within 60 days of November 5,

1998, the date on which Petitioner filed its Notice of Voluntary

Dismissal of its appeal. Petitioner offers no explanation as to

why it waited almost seven months from when its appeal became

moot until it dismissed its appeal.

The date on which Petitioner obtained the relief it sought

is the dispositive date, not the date on which Petitioner advised

the appellate court that Petitioner's appeal had been rendered

moot seven months earlier. Further, Petitioner did not receive

the relief it sought in the underlying proceeding as a result of

the appellate court proceedings. Accordingly, the appeal does

not provide the relevant dates for determining the timeliness of

the Petition filed in this cause.

Petitioner's further argument that until it advised the

appellate court that the appeal had been rendered moot, its time

for filing its petition in this cause did not commence to run but

rather was tolled because the appellate court had jurisdiction

over Petitioner's dispute with the Agency is without merit.

Petitioner's Reply Memorandum attaches (1) a copy of Petitioner's

own request filed with the appellate court on or about

January 13, 1998, requesting the appellate court to relinquish

jurisdiction while Petitioner's application for licensure was

further considered by the Agency and (2) a copy of the Court's

Order entered February 4, 1998, granting that request.

On February 23, 1999, the Ag ency filed its Motion to Strike

Petitioner's "Notice of Intent to File Supplemental Memorandum of

Law in Support of Petition for Attorney's Fees," arguing that a

reply to an agency's response to a petition for attorney's fees

and costs pursuant to Section 57.111, Florida Statutes, is not an

authorized pleading. Although the Agency is correct in its

argument, in this cause Petitioner's Reply Memorandum has been

helpful in setting forth Petitioner's arguments regarding the

issue raised by the Agency in its response to the petition as to

whether the petition in this cause was timely. Further, it is

appropriate to allow Petitioner to respond to the Agency's

arguments where an issue is dispositive of the proceeding without

the necessity for an evidentiary hearing as to facts in dispute.

It is, therefore,

ORDERED THAT:

1. Respondent Agency for Health Care Administration's

Motion to Strike Petitioner's "Notice of Intent to File

Supplemental Memorandum of Law in Support of Petition for

Attorney's Fees" be and the same is hereby denied.

2. Petitioner's Renewed Petition for Attorneys' Fees and

Costs be and the same is hereby denied.

DONE AND ORDERED this 23rd day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

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 23rd day of March, 1999.

COPIES FURNISHED:

Jennifer Steward, Esquire

Agency for Health Care Administration

1400 West Commercial Boulevard

Fort Lauderdale, Florida 33309

E. Scott Nunley, Esquire

Boose, Casey, Ciklin, Lubitz,

Martens, McBane & O'Connell

Post Office Drawer 024626

West Palm Beach, Florida 33402-4626

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel

Agency for Health Care Administration

Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

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 one copy of

a 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.