On appeal from The Division of Administrative Hearings. ">

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Date: 06-19-2022

Case Style:

Agency For Persons With Disabilities vs Meadowview Progressive Care Group Home, owned and operated by Meadowview Progressive Care Corporation

Case Number: 1D21-204

Judge:

Lori S. Rowe


Robert E. Meale

Court:

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

On appeal from The Division of Administrative Hearings.

Plaintiff's Attorney: Francis Carbone II, General Counsel, Agency for Persons with
Disabilities

Defendant's Attorney:





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Description:

Tallahassee, Florida - Nursing Home Negligence lawyer represented Appellee with appealing disciplinary action against their license to operate a group home.



APD began disciplinary action against Meadowview
Progressive Care’s license to operate a group home by filing a
three-count administrative complaint seeking to revoke
Meadowview’s license. See § 120.60(5), Fla. Stat.; Fla. Admin.
Code R. 28-106.2015. APD sought revocation of Meadowview’s
license based on two statutory violations by an officer and manager
of Meadowview, and one employee background check violation.
Following Meadowview’s request for hearing, the case proceeded
in the Division of Administrative Hearings (DOAH) in case
number 19-1812FL. See §§ 120.569, 120.57, Fla. Stat.
After a hearing, the ALJ’s recommended order included
findings of fact, conclusions of law, and a recommended disposition
to deny APD’s request to revoke Meadowview’s license. See
§ 120.57(1)(k), Fla. Stat. In the recommended order, the ALJ
reserved jurisdiction “to award a reasonable attorney’s fee against
Petitioner [APD], pursuant to section 57.105(5).” While the record
contains no motion for attorney’s fees by Meadowview under
section 57.105 or any other provision, the statute can be applied
upon a court’s or an ALJ’s “initiative” without a motion.
§ 57.105(1), (5), Fla. Stat. The recommended order provided the
parties with an anticipated time frame, informing them that
“[a]fter the issuance of the final order, the administrative law
judge will issue a notice of hearing to address Petitioner’s liability
under section 57.105 and, if established, the amount of fees.”
In January 2020, APD entered its final order, adopting all the
pertinent recommendations and conclusions submitted by the
ALJ. See § 120.57(1)(l). In its final order, APD denied any
disciplinary action against Meadowview’s license. While
attorney’s fees were not specifically mentioned, APD’s general
adoption included the paragraph reserving the ALJ’s jurisdiction
to determine APD’s liability for fees as a sanction under section
57.105.
The recommended order, as adopted by APD’s final order, did
not determine APD’s liability for attorney’s fees under section
3
57.105. The ALJ’s reservation of jurisdiction did not state that
APD “knew or should have known” that its licensing action against
Meadowview on any of the three counts “[w]as not supported by
the material facts” or “[w]ould not be supported by the application”
of the law to the material facts. See § 57.105(1)(a)–(b). No other
findings in the recommended order, as adopted, showed that APD’s
licensing action against Meadowview was so lacking in merit that
it was knowingly frivolous, tantamount to bad faith litigation or
litigation brought for an improper purpose such as harassment,
unreasonable delay, or needless increase in costs.2
No appeal was taken of the agency’s final order in case
number 19-1812FL. The time for such appeal expired in February
2020. See Fla. R. App. P. 9.110(c).
DOAH Case No. 20-2087F.
The next activity in the appellate record is a notice filed by the
ALJ in May 2020, informing the parties that case number 20-
2087F was now before DOAH and the same ALJ was assigned.
The lack of any motion or request by a party in the record reveals
that case number 20-2087F commenced upon the ALJ’s initiative.
The orders on appeal were entered in DOAH case number 20-
2087F, not case number 19-1812FL.
APD moved for summary final order on the new case, arguing
that there were no genuine issues of material fact to support any
finding that APD knew or should have known its action was not
supported by the facts or law applicable to the facts. See
§ 120.57(1)(h), Fla. Stat. The ALJ granted APD’s motion for
summary order in part based on the ALJ finding the evidence
sufficient to raise a fact question on count three of APD’s
administrative complaint in case number 19-1812FL. Thus, count
three was removed from consideration in the attorney’s fee
sanction proceeding, case number 20-2087F, and is not a
consideration here.
2 The administrative action did not involve section 120.595,
Florida Statutes, or the procedures in it.
4
The ALJ then conducted an evidentiary hearing in case
number 20-2087F. The ALJ sought to determine whether APD
“knew or should have known” that counts one and two of the
administrative complaint in case number 19-1812FL were not
supported by material facts to establish the violations or would not
be supported by application of the law to those material facts.
§ 57.105(1), (5). In July 2020, the ALJ entered the amended
partial final order finding APD liable for Meadowview’s attorney’s
fees.3 In that order, the ALJ found that APD “knew or should have
known” that its allegations in count one of the administrative
complaint were “legally groundless” and the allegations for count
two were “factually groundless.” Relying on section 57.105(1)(a)
and (5), the ALJ concluded that APD was liable for the attorney’s
fees Meadowview incurred defending against these counts. The
ALJ then advised that the reasonable amount of fees for purposes
of the sanction would be decided at a subsequent hearing and a
“second final order” would be entered setting this amount.
After the second evidentiary hearing to determine a
reasonable amount of attorney’s fees and the submission of
proposed orders by the parties, the ALJ entered the “second final
order” in January 2021. In that order, the ALJ directed APD to
pay Meadowview $16,000 in attorney’s fees.
This Appeal
APD timely appealed both the order finding entitlement to
fees and the order awarding fees, raising multiple grounds. We
address only APD’s position that the ALJ’s jurisdiction was limited
and that these orders exceeded the bounds of that jurisdiction.4
3 APD appealed this order but the appeal was dismissed
because the order was not a final, appealable order or an
appealable non-final order. See Agency for Persons with
Disabilities v. Meadowview Progressive Care Corp., Case No. 1D20-
2044.
4 As an alternative argument, APD asserts that the ALJ’s
power to act on his own initiative under section 57.105(1) had
expired by the time the ALJ started the separate, new DOAH case
— more than ninety days after the filing of APD’s final order on
5
APD argues that the ALJ’s reservation of jurisdiction in DOAH
case number 19-1812FL did not create authority to initiate a new
DOAH case sua sponte and self-assign that case for further fact
finding under section 57.105. We agree that the orders on appeal
must be quashed as beyond the ALJ’s jurisdiction.
An “order on attorney’s fees pursuant to section 57.105(1),
Florida Statutes, is generally reviewed for an abuse of discretion;
however, such an order is reviewed de novo to the extent it is based
on an issue of law.” Hall v. Lopez, 213 So. 3d 1003, 1005 (Fla. 1st
DCA 2016). Whether an ALJ has subject matter jurisdiction over
a matter is a question of law, reviewed de novo. Dep’t of Revenue
v. Vanamburg, 174 So. 3d 640, 642 (Fla. 1st DCA 2015).
The ALJ’s ability to award fees is set forth in section
57.105(5). Likewise, the ALJ’s authority to begin attorney’s fee
sanctions independently from any motion by a party is provided by
section 57.105(1). But an ALJ’s reservation of jurisdiction for an
award of attorney’s fees does not expand the scope of that
jurisdiction beyond statutory authority. “The Division of
Administrative Hearings is no exception to the rule that
‘administrative agencies are creatures of statute and have only
such powers as statutes confer.’” Fla. Elections Comm’n v. Davis,
44 So. 3d 1211, 1215 (Fla. 1st DCA 2010) (quoting State ex rel.
Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d 628, 634 (Fla.
1st DCA 1974)). It is also established law that attorney’s fee
statutes and rules are “in derogation of the common law rule that
parties are responsible for their own attorney’s fees” and must
therefore “be strictly construed.” Campbell v. Goldman, 959 So. 2d
223, 226 (Fla. 2007).
The scope of the ALJ’s jurisdiction is defined by the statutes
and rules governing administrative actions. Davis, 44 So. 3d at
1215. “An administrative agency has only such power as granted
by the Legislature and may not expand its own jurisdiction.” Dep’t
of Revenue v. Graczyk, 206 So. 3d 157, 160 (Fla. 1st DCA 2016).
the merits of the chapter 120 administrative proceeding. We do
not address this contention.
6
Section 57.105(1) authorizes an ALJ to award reasonable
attorney’s fees on its own initiative, but sections 120.569 and
120.57 govern the initiation of DOAH cases and assignment of
ALJs. We find no statutory provision for initiation of a new DOAH
case by an ALJ absent a petition or request by the agency or a
party. Without such, the ALJ lacked statutory authority to open
the new case. See State ex rel. Greenberg, 297 So. 2d at 634; Davis,
44 So. 3d at 1215.
The administrative rules governing DOAH proceedings
provide that a case is begun “by written petition to the agency
responsible for rendering final agency action,” or by “service of the
administrative complaint on the respondent.” Fla. Admin. Code R.
28-106.301(1), 28-106.2015(3). ALJs are assigned by DOAH upon
a request by the agency, after a request for hearing by a party.
§ 120.569(2), Fla. Stat. As a result, the orders on appeal from
DOAH case number 20-2087F exceeded the scope of the ALJ’s
jurisdiction because that case was begun and assigned to the ALJ
contrary to the governing statutes and administrative rules of
procedure.

Outcome: Based on the above, we quash the orders on appeal and
remand case number 20-2087F for dismissal.

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