vs. ) CASE NO. 88-2646F
) DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
Respondent. )
As envisioned by Rule 22I-6.035, Florida Administrative Code, an evidentiary hearing was held in this case to consider the question of the entitlement of the Petitioner to the award of attorney's fees and costs as the alleged prevailing party in an administrative prosecution brought by the Respondent against the Petitioner. The substantive basis for this claim is pursuant to the "Florida Equal Access to Justice Act" as set forth in Section 57.111, Florida Statutes. The date for hearing was August 24, 1988. The location of that hearing was Jacksonville, Florida. Charles C. Adams served as Hearing Officer. This order is being entered following the presentation of evidence, through live testimony, and documentary proof. The parties presented closing arguments at the conclusion of the hearing which have also been taken into account.
Petitioner, Don Coleman, is a licensed contractor licensed by the Respondent, State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. He holds license number RG0014269, pertaining to registration as a general contractor. At all times relevant to the inquiry he has held that license.
On December 27, 1985, Petitioner entered into a contract with Monika Klug, a resident of Jacksonville, Florida, to remodel her home. This contract
was under the auspices of HUD and was being carried forward through the specifications required by that organization. This included a number of trade areas or subcontracting specialties. Petitioner promoted the work through the use of subcontractors.
Ms. Klug was not satisfied with Petitioner's performance under the contract, involving $18,000+ dollars of which she had already paid part of the contract amount by May 14, 1986. On that date she wrote to the Petitioner noticing her intent to terminate the contractual agreement between Petitioner and herself. This action was followed by a complaint to the Construction Industry Licensing Board on May 22, 1986. In the course of that complaint which was executed on a uniform complaint form, the affiant, Ms. Klug, detailed her perception of poor quality workmanship in the remodeling. She also remarked about carelessness by some of the workers and problems associated with a fire in her home during this project, which she attributes to the failure of a subcontractor to perform electrical repairs as required.
In the face of Ms. Klug's complaint, the Department of Professional Regulation, through its investigator, undertook consideration of those allegations. The complainant was interviewed. Herb Turner, office manager of Current Electric who was involved with electrical repairs at the home; Fred Schuster, inspector for the Jacksonville, Florida, Building Department; John Corey, HUD advisor on the Klug project, were interviewed, as well as the licensee, Mr. Coleman. Respondent's Exhibit 1 in the present hearing is a composite exhibit which contains the investigative materials involved in this case. It includes a narrative of the interviews conducted by Russell Huling, the Department of Professional Regulation investigator in this case. His report was prepared on June 16, 1986, as typed on June 20, 1986. The investigation during which the interviews were conducted took place on June 6, 1986, through June 15, 1986.
Following this investigative phase, on June 2, 1987, through contacts between the staff attorney for the Department of Professional Regulation and Robert Adams, a consultant expert in construction techniques, the Department of Professional Regulation retained Mr. Adams as a consultant in this investigation. Again, the correspondence making the arrangements for retainer may be found in the Respondent's Composite Exhibit 1.
Mr. Adams took the work and offered his assessment on June 18, 1987 concerning the quality of work done by Coleman through his subcontractors. This report was rendered after inspection of the premises and upon consideration of the investigative report materials by the Department of Professional Regulation, the contractual documents, the complaint by Klug, the HUD bid proposal by the Petitioner, the fire incident report related to the home, the letter from Klug to Coleman discharging him and other materials. In conclusion, Adams stated, "I do not find Coleman guilty of gross negligence or incompetence. I do find Coleman guilty of failure to supervise the work properly." These remarks together with the investigative materials as referred were made available and were used by the Probable Cause Panel of the Construction Industry Licensing Board in its deliberations. Verification of this may be found within the Respondent's Composite Exhibit 2, in which D. A. Parker, Chairman of the Probable Cause Panel on September 10, 1987 alludes to the fact that the investigative materials had been reviewed. Probable cause for charges ensued.
The investigator, Huling, in the investigative report saw the project problems as a Section 489.129(1)(d), Florida Statutes, Building Code violation and a Section 489.129(1)(m), Florida Statutes, problem of gross negligence. The
panel members also had available the remarks attributable to Adams and his assessment of the quality of the problem as reported above.
Respondent's Exhibit 2 admitted into evidence is a verbatim transcription of the Probable Cause Panel consideration of the Klug matter. It generally describes the fact that the Probable Cause Panel members Mr. Parker and Mr. Webber had familiarized themselves with that day's agenda and supporting documentation which included the investigative material set forth in Respondent's Exhibit 1, as described. A vote was taken and probable cause was found, and a Administrative Complaint was prepared by the Department of Professional Regulation. That was Case NO. 71619 which charges the Respondent in the Klug job with failure to properly supervise the job site activities in violation of Section 489.129(1)(j) and (m); Section 489.119 and Section 489.105(4), Florida Statutes. At the time that probable cause was found and the Administrative Complaint brought forth there was reasonable basis in law and in fact for the initiation of that Administrative Complaint.
Mr. Coleman exercised the election presented to him for an evidentiary hearing in which the facts in the Administrative Complaint were contested as contemplated by Section 120.57.(1), Florida Statutes, and the case was forwarded to the Division of Administrative Hearings for the conduct of that formal hearing. That case became State of Florida, Department of Professional Regulation, Construction Industry Licensing Board, Petitioner vs. Donald Coleman, Respondent, DOAH Case NO. 87-5329. It was assigned to the undersigned for conduct of the formal hearing which took place on May 16, 1988.
The consultant, Mr. Adams, appeared at the hearing as witness for the prosecuting agency. Having heard the testimony of Monika Klug, his perception of any failure to supervise was changed from what he had been lead to believe by her initial remarks to him when he was undertaking his investigation of this case. The consequence was that not withstanding problems at the job site, in his mid, they did not exist as a result of Mr. Coleman's failure to supervise.
With this development the Department, in the person of its counsel, David L. Swanson, Esquire, noticed the voluntarily dismissal of this action with prejudice. This was done on May 19, 1988 leading to an order closing the Division of Administrative Hearings' file issued on May 26, 1988. By that order the case was returned to the prosecuting agency for disposition.
Coleman is a sole proprietor of an unincorporated business whose principal office is in the State of Florida and Coleman is domiciled in this state. Mr. Coleman was the prevailing party in the administrative prosecution case and he is a small business party within the meaning of Section 57.111, Florida Statutes, whose organization does not have more than 25 full-time employees and his net worth does not exceed $2,000,000,000 including personal and business investments. In the defense of the prosecution case reasonable attorney's fees were charged in the amount of $2,214.30 and telephone charges of
$13.58 were incurred. These attorney's fees were charged by Dale Westling, Sr., Esquire, counsel to Mr. Coleman in the prosecution case and in the present case. Mr. Coleman is obligated to pay those fees and costs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 57.111 and Section 120.57. (1), Florida Statutes; and Rule 22I-6.035, Florida Administrative Code.
Pursuant to Section 57.111 (4)(b), Florida Statutes, Petitioner is entitled to apply for the award of attorney's fees and costs through an itemized affidavit submitted to the Division of Administrative Hearings requesting the reimbursement of those attorney's fees and costs associated with, in this instance, the defense of an administrative prosecution in DOAH Case NO. 87-5329. An evidentiary hearing may be conducted to consider this dispute per Rule 22I- 6.035, Florida Administrative Code. On this occasion at the instigation of the Hearing Officer that evidentiary hearing took place. In the course of the evidentiary hearing, the Petitioner, Mr. Coleman, bore the burden of establishing domicile and showing that he was a small business party whose firm did not employ more than 25 full-time employees and whose net worth did not exceed $2,000,000,000 including personal and business investments and who was obligated to pay his counsel the amount of $2,214.30 in attorney's fees and
$13.58 for telephone expenses, which he met, Coleman was a prevailing party, under the definition set forth at Section 57.111(3)(c)3., Florida Statutes, in that the administrative agency sought voluntary dismissal of the complaint, which was accepted by the Division of Administrative Hearings in DOAH Case NO. 87-5329.
Having met the requirement for prima facie showing, the Respondent agency in this cause is called upon pursuant to Section 57.111(3)(e), Florida Statutes, to prove that the proceeding which it undertook in prosecuting Mr. Coleman was "substantially justified," in that it had a reasonable basis in law and fact at the time it was initiated. That proof was met and Petitioner Coleman did not rebut that proof. Consequently, the Petitioner is not entitled to the award of attorney's fees and costs in the amount of $2,214.30 and $13.58 respectively and the petition is DISMISSED.
DONE AND ORDERED this 29th day of September, 1988, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988.
Dale G. Westling, Sr., Esquire HOULD, DONNELLY & WESTLING
130 N. Monroe Street Tallahassee, Florida 32399-0750
Lawrence A. Gonzalez, Secretary Department of Professional
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.
