vs. ) CASE NO. 88-3356F
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
Respondent. )
Pursuant to Notice, this cause came on for final hearing before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 20, 1989, in Tallahassee, Florida.
This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes. In this proceeding, Petitioner seeks to recover his attorney's fees and costs incurred by defending an action brought against him by the Department of Professional Regulation, Construction Industry Licensing Board. Accordingly, the issues for determination are whether Petitioner is entitled to recover attorney's fees and costs and, if so, the amount which Petitioner is entitled to recover.
Both parties submitted proposed findings of fact in the form of proposed final orders. A ruling on each proposed finding can be found in the Appendix to this Final Order.
Petitioner Albert Heisler is a residential air conditioning contractor licensed by Respondent Department of Professional Regulation, Construction Industry Licensing Board, an agency of the State of Florida.
Petitioner is the qualifying agent for Residential Air Conditioning Corporation, which had fewer than 25 full-time employees and a net worth of less than two million dollars when charges were brought against Petitioner by Respondent. Further, at the time charges were brought, Petitioner's principal and only office was in Miami, Dade County, Florida, and his net worth was less than two million dollars. Petitioner had no employees who were not employees of the corporation.
On July 24, 1986, Respondent filed an Administrative Complaint against Petitioner, seeking to take disciplinary action against Petitioner and his certified air conditioning contractor's license for alleged statutory violations arising from air conditioning work performed for June Davidson. On November 10, 1986, the Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings, pursuant to Petitioner's request for a formal hearing. The Administrative Complaint was assigned DOAH Case No. 86-4431. In compliance with the parties' request for hearing dates, on January 21, 1987, that case was scheduled for final hearing on February 16, 1987. On February 11, 1987, Petitioner filed with the Division of Administrative Hearings its Notice of Voluntary Dismissal Without Prejudice.
On August 25, 1987, Respondent issued what it called an Amended Administrative Complaint against the Petitioner based upon the same facts related to the job performed for June Davidson. Although the Amended Administrative Complaint alleged additional statutory violations based upon the same set of facts, the Amended Administrative Complaint is the same "cause of action" as the Administrative Complaint previously dismissed by Respondent. The Amended Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings on October 9, 1987, and was assigned DOAH Case No. 87- 4452. The formal hearing on the Amended Administrative Complaint was conducted by the' undersigned on January 14, 1988, and a Recommended Order was issued by the undersigned on March 10, 1988.
The Recommended Order entered in DOAH Case No. 87-4452 recommended dismissal of the Amended Administrative Complaint for three distinct reasons. First, the Construction Industry Licensing Board failed to determine probable cause prior to the filing of the Amended Administrative Complaint in accordance with the mandates of Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 1982). Second, the Department of Professional Regulation failed to prove that the person signing the Amended Administrative Complaint had been delegated the authority to do so by the agency head who was statutorily authorized to do so. Third, the allegations contained within the Amended Administrative Complaint were not well-founded and were not proven.
Thirty-three days later, on April 13, 1988, the Department filed Exceptions to that Recommended Order.
On May 12, 1988, the Construction Industry Licensing Board met and adopted the Recommended Order entered in DOAH Case No. 87-4452. The Board failed to enter a Final Order at that time.
On July 8, 1988, Petitioner Albert Heisler filed with the Division of Administrative Hearings his Application for Award of Attorneys Fees and Costs. That Application was filed pursuant to the Florida Equal Access to Justice Act and contained the allegations required by that statute. The Application also alleged that the Board had failed to enter a Final Order within 90 days of the entry of the Recommended Order as required by Section 120.59, Florida Statutes.
Thirty-eight days later, the undersigned entered an Order holding that the time by which the Department of Professional Regulation, Construction Industry Licensing Board, was required to respond in order to dispute the allegations contained in the Application as mandated by Rule 22I-6.035, Florida Administrative Code, had passed and, therefore, the allegations contained within the Application and its supporting documentation were deemed uncontroverted. That Order further noted that no final order had yet been filed. That Order further permitted Petitioner Albert Heisler 60 days in which to file a copy of the final order in order to complete the record in this cause.
Ten days later, on August 25, 1988, Respondent Department of Professional Regulation, Construction Industry Licensing Board, filed a Motion for Reconsideration and/or Motion to Dismiss alleging that Petitioner Albert Heisler was not yet a "prevailing party" since no final order had yet been issued by the Construction Industry Licensing Board and no final order was attached to the Application for Award of Attorneys Fees and Costs.
The Motion further alleged that the final order resulting from the Board's meeting of May 12, 1988, was incorrect on some matter and was rescinded by the Board. This allegation appears to have been false.
On September 13, 1988, the Motion for Reconsideration and/or Motion to Dismiss was denied.
Despite the efforts of Petitioner's attorneys and Respondent's attorneys in this cause to obtain a copy of the final order, their efforts were thwarted by the fact that the Construction Industry Licensing Board failed to enter a Final Order in DOAH Case No. 87-4452 until October 26, 1988. Petitioner Albert Heisler filed a copy of that Final Order in this cause on November 1, 1988.
The Final Order entered by the Board on October 26, 1988, does not purport to be an amended final order nor does it represent that a previous final order was entered and vacated. Rather, the Final Order adopted the Findings of Fact contained in the Recommended Order, adopted the Conclusions of Law contained within the Recommended Order except where they were in contradiction with the Exceptions filed by the Department of Professional Regulation, adopted in toto the Exceptions filed by the Department, and dismissed the Administrative Complaint filed against Albert Heisler. The Exceptions state that the Department of Professional Regulation did not take exception to the recommendation that the case against Albert Heisler be dismissed, but that the Department was objecting to certain findings and conclusions of facts and law "as a matter of principle." The Recommended Order concluded, in accordance with general rules of statutory construction (an area in which the Construction Industry Licensing' Board has no special expertise), failure to prove a violation of a specific provision precludes finding a violation of a general provision for conduct prohibited by the specific provision. The Exceptions argue that a violation of a specific provision can also be a violation of a general provision, an argument which is legally correct, but irrelevant to the Recommended Order. Second, the Exceptions objected to the findings and
conclusions in the Recommended Order that the probable cause proceedings were deficient and that the person signing the Amended Administrative Complaint had no authority to execute that document. While the Exceptions clothed those deficiencies as technical niceties, those deficiencies are jurisdictional, and the law related to them is not within the special expertise of the Construction Industry Licensing Board.
The Prehearing Stipulation filed in DOAH Case No. 87-4452 raised as an issue the failure of the Construction Industry Licensing Board to determine probable cause before it filed the Amended Administrative Complaint in that cause. At the final hearing, the transcript of the probable cause panel was introduced in evidence by Albert Heisler. The Recommended Order contained findings of fact that the probable cause panel "rubber-stamped" the prosecutor's recommendation and failed to consider the presence or absence of probable cause. The Recommended Order further found that the Department of Professional Regulation failed to offer any evidence to controvert Heisler's evidence that the probable cause proceeding was of no legal effect. Based upon those findings of fact, the Recommended Order concluded that case law required dismissal of the Amended Administrative Complaint. Similarly, the Recommended Order contained factual findings that the Amended Administrative Complaint was signed by someone other than the agency head. Although that issue was set forth in the prehearing stipulation, the Department which has the burden of proof in any disciplinary proceeding, failed to offer any evidence indicating that authority to issue administrative complaints had been delegated by the Secretary of the Department of Professional Regulation to anyone else.
The Exceptions which were legally incorrect were incorporated in the Final Order entered in DOAH Case No. 87-4452. Yet, the Final Order adopted the Findings of Fact contained in the Recommended Order without reservation, and none were modified to form a basis for approving the Exceptions.
After the Final Order entered in DOAH Case No. 87-4452 was filed in this cause by Petitioner Albert Heisler on November 1, 1988, the undersigned requested a telephonic prehearing conference to address the status of this cause and the course of future proceedings in this cause. That telephonic conference call was conducted on November 18, 1988. Pursuant to the agreements and arguments of the parties during that telephonic conference, an Order was entered on November 21, 1988, establishing a deadline of December 9 for the submittal of proposed final orders in this cause.
Both Petitioner and Respondent filed proposed final orders in this cause on December 9, 1988.
On December 15, 1988, Attorney Stockwell on behalf of Petitioner Heisler filed correspondence with the Division of Administrative Hearings which reads, substantially, as follows:
This office has received a copy of Respondent's Proposed Final Order in the above-referenced matter. Respondent raises therein for the first time an objection to the manner in which proof was adduced on the value of services rendered.
Even during our phone conference on the future proceedings desired by the parties, Respondent did not raise any objection to the
proof on the amount of attorney fees or request a hearing on the award.
Nevertheless, Petitioner is agreeable to presenting live testimony directed to the value of the legal representation, if you wish to allow Respondent this opportunity.
Accordingly, by Notice of Hearing dated January 9, 1989, this cause was scheduled for formal hearing on March 20, 1989, on the sole issue of the reasonableness of attorney's fees and costs sought by Petitioner Albert Heisler.
At the final hearing, Petitioner Heisler appeared with documentary evidence and witnesses to testify as to the reasonableness of an award of attorney's fees and costs in this matter. The Department of Professional Regulation appeared with no witnesses and no evidence to offer. Rather, the Department stipulated that the services rendered and itemized in Petitioner's Exhibit numbered 1 in this cause were necessary and reasonable, that Heisler's attorneys' hourly rates are reasonable, that the fees were incurred by Heisler and Heisler is responsible for payment of those fees, and that the costs sought to be reimbursed by Heisler were reasonably and necessarily incurred.
Petitioner Albert Heisler's arrangement with his attorneys calls for Heisler to pay his attorneys based upon an hourly rate, as a minimum, but further provides that his attorneys would be paid any amount awarded to them as a reasonable attorney's fee.
No evidence of any appeal from the Final Order entered in DOAH Case No. 87-4452 has been submitted, and the time for appeal has expired.
There is no circumstance which would make the award sought herein unjust. The disciplinary actions of the Department of Professional Regulation and the Construction Industry Licensing Board initiated and prosecuted against Petitioner were substantially unjustified.
Petitioner Albert Heisler is a prevailing small business party.
According to the itemized affidavit of Petitioner's attorneys which reveals the nature and extent of the services rendered as well as the costs incurred, Attorney Turner has expended 58.75 hours for which Petitioner Heisler has agreed to pay him $150 per hour. Forty-three and one-half of those hours were for services performed after August 25, 1987. Attorney Stockwell has expended 70.05 hours on behalf of Petitioner Heisler for which he has agreed to pay to her the sum of $100 per hour. Of the 70.05 hours, 61.3 hours were for services performed after August 25, 1987. Although 74.05 total hours were claimed on behalf of Attorney Stockwell, an examination of the itemized breakdown of services rendered shows that four of those hours for services performed after August 25, 1987, are not reimbursable, since 1.5 hours of Stockwell's time was clearly related to a different matter involving Petitioner Heisler and since 2.5 hours reflect the initials of persons other than Attorneys Turner and Stockwell, and no evidence was presented to indicate that DKM or CAB are attorneys who rendered legal services. A computation of the number of hours of legal services subsequent to August 25, 1987, times the hourly rate produces the sum of $12,655. Additionally, Petitioner's Exhibit numbered 1 reveals costs in the amount of $686.90 as of May of 1988, and costs in the additional amount of $122.90 as of the time of the final hearing in this cause.
No evidence was offered in support of the criteria established by case law and embodied in Rule 4-1.5(B), Rules Regulating the Florida Bar, for establishing an award of reasonable attorney's fees. Accordingly, a reasonable amount for attorney's fees and costs in this matter is $13,464.80, which is based upon the hourly rate for services rendered after August 25, 1987, plus the total of the costs incurred.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
This case arises under the provisions of the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, which provides in pertinent part:
(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.
Further, Subsection (3)(e), provides that "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." The proceedings commenced by the Department of Professional Regulation, Construction Industry Licensing Board, against Petitioner Albert Heisler in 1986, and again in 1987, arose from the same cause of action and were not substantially justified. Nor are there any special circumstances which would make the award of attorney's fees under the provisions of the Florida Equal Access to Justice Act unjust. As found in the Recommended Order entered in DOAH Case No. 87-4452, the proceedings of the probable cause panel were defective, thereby legally preventing an administrative complaint from being filed based upon those proceedings.
Further, an agency head is statutorily authorized to file an administrative complaint in this state, and no legal argument or factual basis was offered by the Department to show that someone other than the Secretary of the Department of Professional Regulation can file administrative complaints against citizens of this state. The Recommended Order further held that there was no legal or factual basis to support the allegations contained in the Amended Administrative Complaint. The Final Order, when finally entered by the Board, adopted those provisions of the Recommended Order.
The Application for Award of Attorneys Fees and Costs filed in this cause on July 8, 1988, was filed within 60 days after the date that Petitioner Heisler became a prevailing small business party according to the Board's oral pronouncement, as required by Section 57.111(4)(b), Florida Statutes. Respondent argues that on the date the petition for attorney's fees was filed Heisler was not yet a prevailing small business party because the Board had not
yet reduced its ruling (presumably made on the record) to a written final order. For the' purposes of its argument, it is apparent that the Department ignores the fact that the Board was violating Section 120.59(1), Florida Statutes, by failing and/or refusing to enter its final order, thereby preventing Petitioner from officially becoming a prevailing small business party and thereby
preventing Petitioner from seeking reimbursement for his attorney's fees and costs. To allow a Board to fail or refuse to enter a final order, thereby insulating itself from paying attorney's fees, would be contrary to the legislative intent contained in Section 57.111(2), Florida Statutes. Moreover, the Florida Equal Access to Justice Act does not require that an application for award of attorney's fees be filed on the sixtieth day after the entry of the final order; rather, it requires that such an application be filed within 60 days. The Application that was filed specifically stated that no final order had yet been entered and that the Application was being filed within 60 days of the Board's oral pronouncement. Had Petitioner Heisler waited until entry of the Final Order in DOAH Case No. 87-4452 (if one had ever been voluntarily entered), he would have filed later than 60 days from the date the Board orally pronounced it was adopting the Recommended Order, and Petitioner Heisler would have risked the argument in this cause by the Department of Professional Regulation that he had filed too late since he had filed more than 60 days from the date he became the prevailing small business party by oral pronouncement.
Although Petitioner Heisler may have filed his petition in this cause prematurely, he did not file it untimely under the facts of this case. At the time he filed, the Board had already voted and reached its conclusion as to its treatment of the Recommended Order, and Petitioner Heisler at that moment became the prevailing small business party, although it would still be necessary to file a copy of the Board's Final Order to perfect his claim for reimbursement of attorney's fees and costs in this proceeding brought pursuant to the Florida Equal Access to Justice Act.
The course of this proceeding has been dictated by the Department's failure to respond to the Application for Award of Attorneys Fees and Costs. Although Respondent correctly argues that the Florida Equal Access to Justice Act provides that a state agency may oppose the application, Respondent makes no mention of Rule 22I-6.035, Florida Administrative Code, promulgated by the Division of Administrative Hearings, effective February 16, 1988. That Rule requires in Subsection (4) and Subsection (5) that the state agency against whom an application for award of attorney's fees and costs has been made shall respond to that application within 20 days. The Department of Professional Regulation has not suggested in this proceeding that it did not receive a copy of the Application. Instead, the Department has consistently maintained that it looked at the Application, that it decided that the Application was legally deficient, and that it therefore decided to ignore it. Moreover, Subsection (5)(1) of the Division's Rule specifically provides that the response required to be filed by any state agency shall specify whether the state agency asserts that the Petitioner is not a prevailing small business party and that when such an assertion is made, the agency shall state the facts supporting its position with particularity. The Rule clearly does not afford to a state agency the latitude to review a petition, determine that the Petitioner is not a prevailing small business party, and ignore the petition.
The Division's Rule gives an opportunity to the state agency to controvert each and every allegation and item of costs alleged in the petition which the state agency disputes. The state agency involved in this case having failed to afford itself of that opportunity has failed to place in dispute any allegation in the application filed in this cause, and has also waived its right to dispute any allegation by its failure to timely respond as required by Rule 22I-6.035, Florida Administrative Code.
At no time in this proceeding has the Department suggested that it has evidence to controvert any of the allegations. The Department has only taken the position that it took when it received the Application for Award: that it
did not have to respond. That position was stated by the Department in its Motion for Reconsideration and/or Motion to Dismiss. In spite of the denial of those motions, the Department has consistently maintained its position in its proposed final order and at the evidentiary hearing conducted in this cause on March 20, 1989.
The only other argument raised by the Department in this proceeding is that Petitioner is not entitled to recover his attorney's fees and costs for the work performed in the 1986 case against him and is not entitled to recover attorney's fees and costs for any work performed after the entry of the Recommended Order in DOAH Case No. 87-4452. Although the 1986 and 1987 administrative complaints filed against Petitioner Heisler were complaints far the same activity, i.e., his alleged failure to obtain a permit for work performed for June Davidson, the Department voluntarily dismissed the 1986 case on February 11, 1987. Petitioner Heisler had 60 days from that date within which to petition for an award of attorney's fees and costs as a prevailing small business party in DOAH Case No. 86-4431. He did not do so and cannot now claim entitlement to attorney's fees and costs for all services rendered in that case. It is possible that he might have been able to obtain reimbursement in this cause for attorney's fees and costs incurred prior to August 25, 1987 (the date on which the second complaint was issued) had he presented evidence that specific services, although performed during the pendency of the 1986 case, were necessary and reasonable in that they were utilized in the defense of the 1987 case. For example, a response to an order issued in the 1986 case would not be related to the defense of the 1987 case, but conferences during 1986 with witnesses who testified in the 1987 proceeding could be reimbursable for the 1987 proceeding. Since Petitioner Heisler presented no evidence that any services performed prior to August 25, 1987, related to the defense of the case initiated on that day, he is only entitled in this cause to reimbursement for attorney's fees and costs incurred after that date.
On the other hand, services performed subsequent to the issuance of the Recommended Order in DOAH Case No. 87-4452 do not become a separate proceeding, as the Department argues. First, some of the services performed subsequent to the March 10, 1988, Recommended Order were performed to try to get the Board to enter a Final Order based upon that Recommended Order. Further, the Department's position in this proceeding undoubtedly served to increase the time expended by Petitioner Heisler's attorneys in attempting to obtain the award of attorney's fees and costs to which Petitioner is clearly entitled. The law is well settled that attorney's fees incurred litigating entitlement to an attorney's fee are also recoverable. Bill-Rivers Trailers, Inc. v. Miller, 489 So.2d 1139 (Fla. 1st Dist. 1986); B & L Motors, Inc. v. Big Inotti, 427 So.2d 1070 (Fla. 2nd Dist. 1983).
Finally, Rule 22I-6.035 provides in Subsection (6) that the Petitioner may request an evidentiary hearing within 10 days of the filing of the state agency's response, and Subsection (5)(a) provides that a state agency shall state in its response which must be filed within 20 days of the filing of the petition whether the state agency seeks an evidentiary hearing. Subsection (7) provides that unless the Petitioner or the state agency timely requests an evidentiary hearing, an evidentiary hearing is waived, and the hearing officer will decide the question of fees on the basis of the pleadings, supporting documents, and files and records of the Division of Administrative Hearings. In this cause, Petitioner Albert Heisler did not request an evidentiary hearing in his Application. Likewise, Respondent Department of Professional Regulation, Construction Industry Licensing Board, did not request an evidentiary hearing in its response since it failed to file the required response. Accordingly, the
Department waived any right it had to an evidentiary hearing. Subsection (7) further provides that the hearing officer may schedule an evidentiary hearing sua sponte even where there has been a waiver by the parties. In this proceeding, an evidentiary hearing was scheduled by the undersigned sua sponte. Yet, the Department failed to offer any evidence at that hearing. Instead, the Department merely reiterated the arguments it had previously made in this cause and made the arguments which have been discussed in this Final Order.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Respondent Department of Professional Regulation, Construction
Industry Licensing Board, pay to Petitioner Albert Heisler within 30 days of the date of this Final Order the amount of $13,464.80 as attorney's fees and costs. DONE and ORDERED this 19th day of May, 1989, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989.
APPENDIX TO FINAL ORDER DOAH CASE NO. 88-3356F
Kenneth D. Easley, General Counsel Department of Professional
Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
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.
