GARY EDENFIELD d/b/a ) CLINTON CREST RETIREMENT HOTEL, ) ST. PETERSBURG, FLORIDA, )
vs. ) CASE NO. 88-0058F
Respondent. )
The formal administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer, in St. Petersburg, Florida, on April 6, 1988. The issue in this case is whether the Petitioner should be awarded attorneys' fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111, Fla. Stat. (1987). The petition for attorneys' fees and costs is premised upon the manner in which a prior administrative case involving the same parties, DOAH case number 86-3477, was terminated by the Respondent. Appearing in the instant case for the parties were:
For Petitioner: James W. Martin, Esquire
Suite C, 201 Second Avenue North St. Petersburg, Florida 33701
The Petitioner presented 5 exhibits which were admitted into evidence, and the testimony of William H. Walker, Gary Edenfield, and the affidavit of the Petitioner's counsel. The Respondent presented 8 ,exhibits which were admitted into evidence, and the testimony of James F. Schroeder, and Loveda Perry. There is no transcript. The parties submitted proposed findings of fact and conclusions of law.
On April 12, 1988, the Respondent filed a motion for clarification. The motion raises factual and legal issues that ought to be in the proposed recommended order. The motion will be deemed to be a supplement to the Respondent's proposed recommended order. The Petitioner's motion to strike the motion for clarification, while technically correct, is denied.
On April 18, 1988, the Respondent moved to strike the testimony of one of its own witnesses, and subsequently filed an affidavit of additional testimony from that witness. The motion improperly attempts to place additional evidence before the Hearing Officer after the record has been closed and does not state good cause for reopening the record. The affidavit that has been filed is inappropriate because it denies the Petitioner the right of cross examination. The motion to strike is denied, and the affidavit is, on the Hearing Officer's own motion, stricken from the records of this case.
On May 5, 1988, the Petitioner filed an objection to the Respondent's proposed recommended order. Since no formal provision was provided for filing replies, and since the Respondent has not been afforded that opportunity, the objection will be disregarded.
Official recognition is taken of the contents of the file in DOAH case number 86-3477 and the following facts from that file:
On July 31, 1986, the Respondent denied the renewal of the Petitioner's license for an adult congregate living facility at the Clinton Crest Retirement Hotel, and advised him of his right to a formal administrative hearing as to relicensure.
On August 8, 1986, the Respondent amended its basis for the proposed denial of licensure, alleging that on April 11, 1986, May 14, 1986, and July 18, 1986, Petitioner did not have a fixed fire extinguisher at the cooking appliance, did not have a three compartment sink or other approved system in use for the purpose of proper sanitation of kitchen utensils, and did not have a week's supply of non-perishable food based upon the number of weekly meals the facility had contracted to serve, and alleging that these were violations of specified statutes and rules. It further alleged that the fire extinguisher and the three compartment sink had remained uncorrected since June 20, 1985. The amended notice of proposed agency action cited the following provisions as the basis for the fire extinguisher requirement: sections 400.414 and 400.441, Fla. Stat., rules 10A-5.23(15)(a) and 4A-40.05, Fla. Admin. Code, and NFPA (National Fire Protection Association) 101, section 7-7.3 and NFPA 96.
On August 11, 1986, the Petitioner requested a formal administrative hearing to contest the proposed denial of licensure.
One year later, on August 14, 1987, the Respondent granted a renewal of license to the Petitioner.
The Petitioner filed a motion for summary final order based upon issuance of the license. No response was filed by the Respondent. The Hearing Officer entered an order to the Respondent to show cause and to require a response.
The Respondent filed a voluntary dismissal.
The Petitioner moved to strike the voluntary dismissal, noting that he had requested the hearing, and requested attorneys' fees.
The Respondent's response characterized the voluntary dismissal as a motion to dismiss for mootness, agreeing that the license had been issued.
The Hearing Officer entered a recommended order recommending dismissal due to mootness, and noting that a request for attorneys' fees pursuant to section 57.111, Fla. Stat. (1987) would result in a final order and thus must originate with a separate petition to the Division of Administrative Hearings.
The Respondent entered a final order dismissing the Petitioner's request for hearing as moot.
The Petitioner then filed the instant petition for attorneys' fees and costs with the Division of Administrative Hearings.
On June 20, 1985, Petitioner's facility was inspected. Two of the three violations set forth in the amended basis for denial of relicensure of August 8, 1986, were cited in the inspection report on June 20, 1985, and were reported as having not been corrected in a reinspection on September 26, 1985.
P. Ex. 5. Those were the fire extinguisher issue and the three compartment sink issue. In the June 20, 1985, inspection report, the Respondent classified the three compartment sink violation as a class III violation, and required the violation to be corrected at the end of two months. The Respondent classified the fire extinguisher violation also as a class III violation, and required it to be corrected in three months. R. Ex. 5.
An earlier administrative complaint had been filed against the Petitioner's facility on January 2, 1986. One of the allegations in that complaint was failure to have a fixed fire extinguisher at the kitchen stove. The Department classified this violation in the administrative complaint as a class III violation. The Petitioner entered into a stipulation in that administrative action paying, in part, a fine for this allegation of a fire code violation, and agreeing that if the deficiency was not corrected in thirty days, the result would be further administrative action, which might include "revocation proceedings." The stipulation did not clearly provide that failure to correct the violation would result in revocation of the license. The stipulation became embodied in the final order of the Respondent on March 19, 1986. R. Ex., 6.
On April 11, 1986, and on May 14, 1986, the facility was inspected. Among other citations, the facility was cited for not have enough nonperishables to feed the 7 persons then living at the facility for a week, for not having a three compartment sink, and for not having a fire extinguisher over the cooking appliance. All three were classified as class III violations. R. Ex. 8. On reinspection on July 18, 1986, these items were still not corrected.
In DOAH case number 86-3477, the Respondent admitted to requests for admissions that the three compartment sink issue and the non-perishable food issue were corrected by the date of the request for admissions, November 26, 1986. Thus, when that case closed, the only pending issue was the fire extinguisher over the stove.
Based upon the testimony of James F. Schroeder, the Respondent's expert witness with respect to fire safety, the denial of relicensure in the letter of August 8, 1986, was primarily based upon the issue of fire extinguisher over the stove.
The Petitioner's kitchen is small, approximately 6 to 8 feet in width and 10 to 12 feet in length.
The stove is a residential electric stave having four burners. By design and construction, it is a domestic stove rather than what typically is thought of as a "commercial" stove.
The stove is used commercially to prepare meals for residents of the adult congregate living facility for a fee.
The stove is not located below a normal ceiling parallel with the floor, but is located under a lower slanted ceiling. The ceiling is only 4 to 6 feet above the front of the stove, and slants to within a few feet of the back of the stove. The ceiling is combustible, and a fire in the ceiling would spread to the rest of the adult congregate living facility unless extinguished by the automatic sprinkler system. The stove is near a window which could feed a stove fire with oxygen. The building is a wood frame building, and is highly susceptible to fire.
There was a portable fire extinguisher at the stove. Additionally, the Petitioner installed fire sprinklers throughout the building at a cost of over $4,000. The automatic fire sprinklers were installed by the Petitioner to comply with the stipulated settlement dated March 19, 1986, and were installed after May 20, 1986. P. Ex. 3. The Petitioner thought he had been told by the Respondent that by installing the fire sprinkler system, he would satisfy the requirement that the stove have an automatic fire extinguisher. The fire sprinkler system that is installed included one in the kitchen, but the sprinkler in the kitchen is not located over the stove. R. Ex. 2.
The kitchen fire sprinkler, which may be effective to impede a general fire in the kitchen, is not effective to smother a stove fire at the stove. Moreover, the one automatic sprinkler in the kitchen ceiling is not the same as an extinguisher at the stove because the stove fire extinguisher must have a manual operation capability as well as automatic capability, and must operate to shut off current to the stove in the event of fire.
The lack of a fire extinguisher and hood at the stove poses a potential threat to the physical safety of the residents at the Petitioner's facility. The expert testimony presented was not sufficient to conclude as a matter of fact that the lack of a fire extinguisher and hood at the stove presents an imminent danger to residents or a substantial probability that death or serious physical injury would result there from, or that the lack of this equipment is a direct threat to the physical safety of the residents. The expert testimony was consistent with the classification by the Respondent of this violation as a class III violation.
Petitioner's facility is licensed for 14 residents.
On May 15, 1986, the Petitioner wrote to the Respondent asking that his license be reduced to 12 when it was reissued so that he would have time to obtain a three compartment sink. The Petitioner was having difficulty locating such a sink to purchase. The Petitioner intended to apply for a license for 14 residents when he had installed the sink. The Petitioner made this offer to the Respondent again in his letter of August 6, 1986, P. Ex. 4, and a letter from his attorney, P. Ex. 5, dated September 26, 1986.
It was stipulated by the parties that rules 4A-40.05 and 4A-40.10, as embodied in R. Ex. 3, were applicable to the Petitioner on August 8, 1986.
Conclusions of law 14 through 17 concern the contents of certain rules and provisions of the National Fire Protection Association (NFPA) standards, and are adopted as findings of fact.
The Petitioner is the sole proprietor of the unincorporated business known as the Clinton Crest Retirement Hotel, which is the licensee in this case. The Petitioner is and was domiciled in the State of Florida, his principal office is and was in the State of Florida, he has not employed more than 25
full-time employees, and his net worth is not more than $2 million, including both personal and business investments.
If attorneys' fees and costs are to be awarded in this proceeding, the unrebutted evidence justifies an award of $4,697.75 as reasonable attorneys' fees and $62.50 as reasonable costs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding.
Section 57.111(4)(a), Fla. Stat. (1987) provides:
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.
The Petitioner is a small business party. Section 57.111(3)(d), Fla. Stat. (1987).
DOAH case number 86-3477 was a proceeding pursuant to chapter 120.
DOAH case number 86-3477 was "initiated by a state agency" because the state agency was required to notify the Petitioner of a clear point of entry after the free form denial of licensure. Section 57.111(3)(b)3, Fla. Stat. (1987).
The Petitioner was the prevailing party in DOAH case number 86-3477 because a final order was entered in favor of the Petitioner. Section 57.111(3)(c)1, Fla. Stat. (1987).
There are no special circumstances proven by evidence in the record in this case which would make an award of attorneys' fees and costs unjust.
Thus, the only issue is whether the actions of the agency were substantially justified. Section 57.11(3)(e), Fla. Stat. (1987) provides:
A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by a state agency. E.S.
Evidence of corrections made by the Petitioner after July 31, 1986, the date of initiation of the free form action, thus are not relevant to the question of substantial justification.
The Florida Equal Access to Justice Act is modeled after the federal Equal Access to Justice Act, section 504, 5 U.S.C.A. Thus, the construction that has been given to the federal act by federal courts, to the extent harmonious with the Florida Act, provides guidance in construing the Florida Act. Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672, 673 (Fla. 1st DCA 1987).
The burden of proving that the proceeding was "substantially justified" is upon the agency. Foley Construction Company v. U.S. Army Corps of Engineers, 716 F.2d 1202 (8th Cir. 1983), cert. den., 104 S.Ct. 1908 (1983).
The proceeding may have been substantially justified even though the agency did not prevail. The agency need not prove that there was a substantial probability of prevailing to prove that the proceeding was substantially justified. Westerman, Inc. v. N.L.R.B., 749 F.2d 14 (6th Cir. 1984).
A proceeding may have a reasonable basis in law and fact, and thus be substantially justified, even though the agency's position depends upon a credibility assessment of one of its witnesses. Gentele, supra, 513 So.2d at 673.
Rule 4A-40.05(1) and (2), Fla. Admin. Code, provides essentially that unless modified by rule, all adult congregate living facilities must comply with NFPA 101, and particularly ,chapters 1 through 7. R. Ex. 3.
NFPA 101, section 7-2.3, provides that "commercial cooking equipment for use in occupancies" shall be installed in accordance with-NFPA 96 with respect to installation of equipment for removal of smoke and grease-laden vapors from commercial cooking equipment. R. Ex. 4.
NFPA 96 generally provides a number of requirements, including a hood and exhaust. Section 7-1.1 of NFPA 96 requires fire extinguishing equipment for the grease removal devices and hood. Section 7-1.2 of NFPA 96 provides that
[c]ooking equipment (such as deep fat fryers, ranges, griddles, and broilers) which may be a source of ignition of grease in the hood, grease removal device, or duct shall be protected by approved extinguishing equipment. (E.S.)
Rule 4A-40.10(2) provides:
Commercial cooking equipment shall be installed in accordance with the standard for the Installation of Equipment for Removal of Smoke and Grease-Laden Vapors from Commercial Cooking Equipment, NFPA 96, as specified in NFPA 101, Section 7-2, as adopted-pursuant to Rule 4A-40.05.
Exception No. 1: Existing installations may be continued in use provided that no cooking which may
produce excessive grease-laden vapors (such as deep-fat frying) is done.
Exception No. 2: Domestic (non- commercial) cooking equipment is exempted from this requirement provided:
The facility serves fewer than
9 residents, and;
No cooking which may produce excessive grease-laden vapors (such as deep-fat frying) is done.
The Respondent was substantially justified to assert that the Petitioner was in violation of Departmental rules when it denied relicensure on July 31, 1986. The Respondent had two substantial justifications for that assertion.
The first was that the Petitioner had previously entered into a stipulated settlement of a prior administrative citation for the same alleged violation, the failure to have a fixed fire extinguisher at the kitchen stove. In that stipulation, the Petitioner accepted an administrative penalty and agreed that if the violation was not thereafter corrected, the result might be further administrative action. The Petitioner testified that he thought he had been told by the Respondent that installation of a fire sprinkler system throughout his facility would satisfy this agreement. The Respondent, on the other hand, credibly demonstrated that the fire sprinkler installed in the kitchen was insufficient to contain a stove fire, particular in view of the fact that the stove was under a unique low slanting ceiling that itself was combustible. While this may have resulted in a good defense in DOAH case number 86-3477, it does not negate the agency's substantial justification for the assertion that the Petitioner's facility was in violation of Department rules. At best, it simply raises litigable issues of credibility, and a mere issue of credibility is insufficient to show a lack of substantial justification. Gentele, supra.
Second, independent of the prior stipulated agreement, the Respondent had at least a reasonable basis for its position that a hood and fire extinguisher were required at this stove. Pursuant to rule 4A-40.05(1) and (2), and NFPA 101 and 96, it was reasonable for the Respondent to conclude that the stove was "commercial cooking equipment for use in occupancies" in an adult congregate living facility due to its use, rather than its design, and to conclude that a hood and extinguisher system was required by NFPA 96. In particular, with reference-to section 7-1.2, NFPA 96, the stove is clearly a "range."
The only potential problem for the position of the Respondent comes with its own rule, rule 4A-40.10(2). That rule explicitly provides two exceptions, either of which arguably might apply to the Petitioner.
Assuming, without ruling, that the exceptions are not defenses that the licensee has the burden to prove, it is nonetheless apparent from the testimony in this record that the Respondent at least had a sufficiently reasonable expert opinion from an expert in fire safety that this particular stove did not fit within either of the two exceptions. The Respondent's expert in fire safety with respect to state regulation testified that the position of the stove under the slanted ceiling, coupled with the proximity of the window, caused there to be "excessive grease-laden vapors" from the perspective of fire safety even from normal cooking. The point of all of the Respondent's
regulations is to provide fire safety to the typical resident in an adult congregate living facility. It is not at all unreasonable, in this context, for the Respondent's expert to note that grease may collect upon a slanted ceiling that is from 2 to 6 feet above the surface of the stove, and that a fire on the stove poses a significant risk of igniting the ceiling and thereby igniting the entire facility.
The Respondent was also substantially justified in concluding that the second exception to rule 4A-40.0(2) does not apply not only because of its interpretation of the "excessive grease-laden vapors" question, but also because the facility was licensed to serve 14 residents, a number greater than 9 residents. It is substantially justifiable to construe rule 4A-40.10(2)(b)1 as referring to the number of residents that the licensee potentially might serve rather than the number of residents served on the day of inspection. Otherwise, the requirement of having expensive fire safety equipment on hand would fluctuate on a daily basis, which would cause an unreasonable burden for the licensee as well as the agency.
Having a substantial justification for the assertion of a violation, however, is not the same as having substantial justification to deny relicensure.
Section 400.417(1), Fla. Stat. (1987) establishes the procedures for renewal of a license for an adult congregate living facility. The third sentence in that subsection provides: "A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first met the requirements established under this parts and all rules promulgated hereunder." It is evident that what is meant by the phrase "the requirements established under this part and all rules promulgated hereunder" refers at least initially to the standards for initial licensure.
Section 400.411, Fla. Stat. (1987), provides the statutory requirements to obtain a license for an adult congregate living facility. That section contains no provision making compliance with all of the health and safety regulations of the Department a requirement for obtaining a license.
Section 10A-5.014(5), Fla. Admin. Code, sets forth the requirements for renewal of a license for an adult congregate living facility. That rule contains no provision making compliance with the health and safety regulations of the Department a requirement for obtaining a renewal of a license, and simply references certain requirements for initial licensing.
If the foregoing were the only statutory and rule provisions applicable, the conclusion would be that renewal of a license is a ministerial function that should be determined based upon the same standards as initial licensure. Section 400.414(2)(a), Fla. Stat. (1986), however, provides that the Department may deny or revoke a license if there has been "[a]n intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility." (E.S.) Section 400.414(2)(d) provides that the Department by deny or revoke a license if there has been "[m]ultiple and repeated violations of this part or of the minimum standards and rules adopted pursuant to this part." (E.S.)
As a result of Section 400.414(2), Fla. Stat. (1986), if the Department wishes to deny relicensure to an adult congregate living facility for reasons other than lack of qualifications necessary for initial licensure, it can only do so based upon the same grounds necessary for revocation of a
license, i.e., "an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility," or "multiple and repeated violations."
Section 400.419, Fla. Stat. (1986) provides three classes of violations. A class I violation is defined by the same section as a condition that poses "imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom." A class III violation is a less serious violation, and only subjects the licensee to a civil penalty of not less than $100 and not exceeding
$500.
Thus, a class III violation is not an "intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility."
The Respondent classified all three violations in this case as class III violations. The Respondent repeatedly allowed the Petitioner a lengthy period of time, three months, to correct the violation regarding the fire extinguisher over the stove. Both of these acts by the Respondent tend to show that the violation did not seriously affect the safety of residents. Although the Respondent presented evidence that these violations should be corrected, the evidence was insufficient to conclude that any of the three violations was "an intentional or negligent act seriously, affecting the health, safety, or welfare of a resident" of the facility.
The Respondent may also deny or revoke a license pursuant to Section 400.414(2)(d), Fla. Stat. (1986), if there have been "[m]ultiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part."
The denial of relicensure was based only upon the three violations set forth in the letter of August 8, 1986. Three violations constitute multiple violations.
The fire extinguisher and three compartment sink issues were alleged in the letter of August 8, 1986, to be repeat violations. The letter alleged these violations to have been cited on June 20, 1985, April 11, 1986, May 14, 1986, and July 18, 1986. The evidence showed that in fact such inspections were made and in fact the violations existed on those dates.
Moreover, in each case the Department provided a date upon which the violations were to have been corrected. Pursuant to Section 400.419(1)(c), Fla. Stat. (1987), each day during which any person is in violation after the date fixed by order of the Department for termination of the violation constitutes a separate violation. Thus, each day of violation was a repeated violation.
Furthermore, the Petitioner on March 19, 1986, entered into a stipulation with the Respondent that if such violations were not corrected in 30 days from that date, his license was subject to administrative action that could include revocation.
For these reasons, the Respondent had substantial justification on July 31, 1986, to believe that the Petitioner had committed multiple and repeated violations of its rules, and thus had substantial jusitification to believe that it had a basis to deny or revoke the Petitioner's license pursuant to section 400.414(2)(d), Fla. Stat. (1986).
It is true that the Petitioner had evidence that might result in a finding of no violation as to these asserted violations, or might result in mitigation of penalties. See findings of fact 11 and 15. But these are matters of credibility. The Petitioner's evidence was not enough to prove that on August 8, 1986, the Respondent was not substantially justified to conclude that the Petitioner had committed multiple and repeated violations with respect to the fire extinguisher over the stove and the three compartment sink question.
Since pursuant to sections 400.414 and 400.419, Fla. Stat. (1986), the Department did have substantial justification to deny relicensure of the Petitioner's facility on July 31, 1986, as amended on August 8, 1986.
Therefore, the petition for attorneys' fees and costs should be denied.
It is therefore ordered that the petition for attorneys' fees and costs is denied. DONE and ORDERED this 1st day of June, 1988.
WILLIAM C. SHERRILL, JR.
Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1988.
APPENDIX TO THE FINAL ORDER, CASE NO. 88-0058F
The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties.
4. The Respondent obtained dismissal by motion due to mootness. The Respondent technically could not voluntarily dismiss DOAH case number 86-3477 because the request for formal administrative hearing had been filed by the Petitioner.
1. The issue of a week's supply of non-perishable food was not cited on the June 20, 1985, report. R. Ex. 5.
James W. Martin, Esq.
Suite C, 201 Second Avenue North St. Petersburg, Florida 33701
Gaye Reese, Esq.
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Sam Power, Clerk Department of' Health and Rehabilitative Services 1323 Winewood Boulevard
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.
