STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARLEY L. VAUSE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2101F

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

FINAL ORDER

This action arose after Respondent, Department of Natural Resources, issued to Petitioner, Harley L. Vause, the permit which had previously been denied.

The permit was issued on March 28, 1989, according to the documents filed herein. Apparently no Final Order has been formally entered. The Petitioner's Application for Attorney's Fees was filed on April 21, 1989, pursuant to Section 57.111, Florida Statutes. Section 57.111 authorizes a small business party to seek an award of attorney's fees and costs against a state agency which initiates an administrative action.

Rule 22I-6.035, Florida Administrative Code, specifically requires the state agency against which a petition for costs and fees is filed to file a response or counter-affidavit within 20 days of the filing of the petition. Here, the Department of Natural Resources (DNR) has filed no response or opposition to the application for fees and the 20 days have elapsed.

Accordingly, DNR has effectively waived its opportunity to oppose the petition, to dispute the allegations in the petition, and to request an evidentiary hearing. Therefore, pursuant to Rule 22I-6.035(7), the undersigned Hearing Officer "will decide for or against the award and the amount, if any, on the basis of the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings."

The pleadings and supporting documents that comprise the record herein are the Application, the affidavits of Harley L. Vause and Lynn C. Higby, the Recommended Order in DOAH Case No. 88-5988, and the record in Case No. 88-5988.

Based on the record herein, the following facts are determined:

FINDINGS OF FACT

1. Vause is in partnership with his brother and has a principal office at

   100 Hamilton Avenue, Panama City, Florida. Vause's business has two full-time employees and has a net worth of less than $100,000.00.

   
   

2. In DOAH Case No. 88-5988, Vause applied for a special activity license to use mechanical harvesting devices on his oyster leases. DNR denied the application by "Final Order" dated October 17, 1988, and this "Final Order" provided the clear point of entry. Vause availed himself of this point of entry and requested a formal hearing.

3. After a formal hearing, a Recommended Order was entered on March 13, 1989, wherein it was concluded that the application was valid and adequate and that Vause had met all conditions precedent to be entitled to the permit sought. DNR had denied the permit based on legally insufficient and incorrect grounds and authority.

   
   

4. Vause has incurred attorney's fees at the rate of $125.00 per hour. A total of 19.20 hours were expended by Vause's attorney in the underlying proceeding and in this proceeding. The number of hours is reasonable and they were necessary. The hourly rate is reasonable. Hence, Vause has incurred

   $2400.00 in fees.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of this proceeding. Section 57.111, Florida Statutes (1987).

   
   

6. Section 57.111(4)(a) essentially authorizes the award of attorney's fees and costs to a prevailing small business party in an administrative proceeding initiated by a state agency "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust."

   
   

7. Relevant portions of Section 57.111 state:

   
   

   (3)(a) The term "attorney's fees and costs" means the reasonable and necessary attorney's fees and costs incurred for all

   preparations, motions, hearings, trials, and appeals in a proceeding.

   (b) The term "initiated by a state agency" means that the state agency:

   * * *

   3. Was required by law or rule to advise a small business party of a clear

   point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency.

   * * *

   1. The term "small business party" means:

      * * *

      1.b. A partnership ... which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than 52 million;

      * * *

   2. 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.

   (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.

   
   

8. The uncontroverted facts establish that Vause is a small business party and that he prevailed. While DNR has apparently not entered a Final Order, its actions of granting the permit sought constitute final action by the agency. Here, it can only be construed from that final action that Vause is the prevailing party.

   
   

9. In order for the terms of Section 57.111 to be invoked, the underlying proceeding must be an adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency. Under Section 57.111(3)(b)3, an action is initiated by a state agency when the agency was required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the free form proceeding of the agency. In this case, the underlying "Final Order" of DNR denying the permit application is actually preliminary agency action and is the free form agency decision. It is exactly this free form agency action which gives rise to the clear point of entry into Chapter 120 proceedings.

   
   

10. Further, Section 57.111(2) specifies:

    
    

    The Legislature finds that certain persons may be deterred from seeking review of, or defending against, unreasonable governmental action ... The purpose of this section is to diminish the deterrent effect of seeking

    review of, or defending against, governmental actions by providing in certain situations an award of attorney's fees and costs against the state.

    
    

    (Emphasis supplied). "In interpreting provisions of a statute, the legislative intent is the polestar by which courts must be guided. Wakulla County v. Davis,

    395 So.2d 540 (Fla. 1981)." Gulf Coast Home Health Services of Florida, Inc. v. Department of Health and Rehabilitative Services, Nos. BO-171 and BO-418 (Fla. 1st DCA June 8, 1988). Here the legislative intent could not be clearer. It is intended that the award of fees and costs be available when the small business is seeking review of some free form agency action. It is therefore concluded that DNR initiated this action as defined in Section 57.111(3)(b)3 in that DNR was required by law to advise Vause of a clear point of entry after the recognizable event of the entry of the "Final Order" and the free form denial of the permit application.

    
    

11. In proceedings under Section 57.111, the Petitioner bears the initial burden of proving that it is a small business party, that it prevailed, and that the underlying adjudicatory proceeding pursuant to Chapter 120 was initiated by a state agency. Once this showing is made, the burden shifts to the Agency to demonstrate that its actions were substantially justified or that special circumstances exist which would make the award unjust. This allocation of the burden of proof is clearly stated in Gentele v. Department of Professional Regulation, Board of Optometry, 9 FALR 310 (DOAH June 20, 1986), affirmed on

    other bases in Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987)

    
    

12. DNR presented no evidence to carry its burden of proving that its actions were substantially justified or that special circumstances exist which would make the award unjust. Further, a review of the record shows that DNR's action in denying the permit was unsupported by law or fact and was unreasonable. It is exactly this type of overreaching and unreasonable governmental action that the "Florida Equal Access to Justice Act" Section 57.111, was intended to remedy. See Section 57.111(2)

    
    

13. The attorney's fees and costs incurred by Vause were reasonable and necessary and were incurred In the underlying proceeding.

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Department of Natural Resources pay attorney's fees and

costs of $2400.00 to Harley L. Vause.

DONE and ORDERED this 24th day of May, 1989, at Tallahassee, Florida.

DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989.

COPIES FURNISHED:

Harold A. McLean Deputy General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Suite 1003

Tallahassee, FL 32399

Lynn C. Higby Attorney at Law

Bryant, Higby & Williams Post Office Drawer 860 Panama City, FL 32402-0860

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Ken Plante General Counsel

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

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.

Docket for Case No: 89-002101F

Orders for Case No: 89-002101F