STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN LEE JORY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2301F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PSYCHOLOGISTS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 2, 1990.

APPEARANCES

The parties were represented as follows:

For Petitioner: David Will, Esquire

1900 Peachtree Center Tower

230 Peachtree Street, Northwest Atlanta, Georgia 33030

For Respondent: E. Renee Alsobrook, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue at the hearing was whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code.

PRELIMINARY STATEMENT

This action arose after Petitioner, Brian Lee Jory, received a Final Order voluntarily dismissing the Administrative Complaint filed against him in Case No. 89-6811. That proceeding was styled Department of Professional Regulation

v. Brian Lee Jory, DOAH Case No. 89-6811. On April 16, 1990, Petitioner filed an application for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code.

Rule 221-6.035 requires the state agency against which a petition for costs and fees is filed to file a response or counter affidavit to the petition within

20 days of the filing of the petition. The Department filed its response on May 1, 1990. The Department's response alleged that Petitioner was not entitled to an award of attorney's fees and costs since the charges against Petitioner in the Administrative Complaint had a reasonable basis in law and fact at the time the Department initiated the underlying proceeding and were, therefore, substantially justified in the institution of the underlying proceeding.

At the hearing, Petitioner testified in his own behalf and offered into evidence Petitioner's affidavit of attorney's fees and costs. Respondent did not call any witnesses or offer any exhibits into evidence. None of the statutory elements which would entitle Petitioner to an award of attorney's fees and costs under Section 57.111, Florida Statutes, were stipulated to by the parties except that a final order had been entered in the original action and that Petitioner was the prevailing party in the original action.

FINDINGS OF FACT

1. Petitioner is the sole proprietor of an unincorporated business engaged in the practice of psychology. Petitioner's business does not employ more than twenty-five (25) full-time employees and has a net worth not exceeding

   $2,000,000.00. Petitioner's residence, business domicile and principal office are located in Georgia. Petitioner's residence, business domicile and principal office have been so located since 1982.

   
   

2. In DOAH Case No. 89-6811, the Department of Professional Regulation, Board of Psychologists, filed an Administrative Complaint, dated July 20, 1989. An Amended Administrative Complaint was filed on December 8, 1989. The Administrative Complaints alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology. The case was voluntarily dismissed by the Department of Professional Regulation prior to the final hearing. The voluntary dismissal was adopted and incorporated into the Final Order entered by the Board in this matter.

   
   

3. The Petition for Attorney's Fees and Costs filed pursuant to Rule 221- 6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, was timely, having been filed within sixty days (60) after the date on which the Petitioner had prevailed.

   
   

4. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,106.50 and costs in the amount of $210.05 in DOAH Case No. 89-6811.

   
   

5. However, Petitioner is not entitled to an award of attorney's fees and costs since the evidence clearly demonstrated that Petitioner's business or professional practice is neither domiciled in Florida nor has a principal office located in Florida. See, Section 57.111(1)(d)a., Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Sections 120.57(1) and 57.111, Florida Statutes.

7. Section 57.111(4) (a), Florida Statutes, 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."

   
   

8. Section 57.111(d)1.a., Florida Statutes, defines a small business party to include:

A sole proprietor of an unincorporated business, including a professional practice, whose principal office is located in this state, who is domiciled in this state, and whose business or professional practice 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 $2 million, including both personal and business investments; . . .

Petitioner does not meet the above definition of a small business party. Petitioner is, therefore, not entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes. 1/

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of September 1990.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September 1990.

ENDNOTE

1/ Petitioner did raise the constitutionality of the statute's definition of a small business party in so far as a party's entitlement to the benefits of Section 57.111, Florida Statutes, is limited to Florida small businesses while the licensure statute (as in Dr. Jory's case) permits an out-of-state professional who does not reside in Florida to hold a Florida license and thereby be subject to discipline by the State of Florida without the benefit of Section 57.111, Florida Statutes. Because Section 57.111's language is clear and not subject to varying interpretations based on constitutional issues, the constitutional question cannot be decided in this forum. Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc. 361 So.2d 695 (Fla. 1978).

COPIES FURNISHED:

David Will, Esquire

1900 Peachtree Center Tower

230 Peachtree Street, N.W. Atlanta, Georgia 33030

Brian Lee Jory

119 Steward Street

St. Simons Island, Georgia 31522

E. Renee Alsobrook, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Linda Biedermann Executive Director

Board of Clinical Social Work, Marriage & Family Therapy and Mental Health Counselling

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

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.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA,

BRIAN LEE JORY, NOT FINAL UNTIL TIME EXPIRE

TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED,

vs. CASE NO. 90-3125

DOAH CASE NO. 90-2301F

DEPARTMENT OF PROFESSIONAL REGULATION,

Appellee.

/ Opinion filed July 11, 1991.

An Appeal from an Order of the Division of Administrative Hearing. Diane Cleavinger, Judge.

Jill D. Levy and David C. Will of Harman, Owen, Saunders & Sweeney, P.C., Atlanta, Georgia, for Appellant.

Kenneth Easley, General Counsel and Lisa S. Nelson, Department of Professional Regulation, Tallahassee, for Appellee.

NIMMONS, J.

The appellant, Brian Lee Jory, appeals from a final order rendered by the Department of Administrative Hearings denying a request for attorney's fees. We affirm.

Dr. Jory received his Ph.D. and became licensed in Florida to practice marriage and family therapy. Dr. Jory subsequently relocated his practice and residence to Georgia but continued to maintain his Florida license. In 1989, while thee appellant was still domiciled and maintained his practice in Georgia, the Department of Professional Regulation in Florida filed a disciplinary action against the appellant based on allegations of misconduct made by one of Dr. Jory's former patients who was treated by the appellant when he was residing and practicing in this state. The case was ultimately dismissed against the appellant because the alleged violations were found to have occurred prior to the appellant becoming licensed in Florida.

Subsequently, Dr. Jory filed a petition for attorney's fees and costs pursuant to section 57.111, Florida Statutes (1989), known as the Florida Equal Access to Justice Act. The Act 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 state agency were substantially justified or special circumstances exist which make

the award unjust.

Under the Act, Section 57.111(3)(d)1.a. defines a small business party as: A sole proprietor of an unincorporated business,

including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by the state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments.

Following a hearing, the hearing officer concluded that the appellant was not entitled to an award of attorney's fees and costs because he did not meet the statutory residency requirements under the definition of "small business party."

Dr. Jory appealed the denial of attorney's fees on two grounds: (1) the residency requirement in Section 57.111 violates the fundamental right to travel under the Privileges and Immunities Clause of the United States Constitution, and (2) the statute violates the Equal Protection Clause of the Federal and Florida Constitutions.

As expressly recognized in the Act itself, the Florida Equal Access to Justice Act was enacted because the legislature recognized that due to the expense of civil actions and administrative proceedings, certain persons may be deterred from seeking review of, or defending against, unreasonable governmental action. Section 57.111(2). The legislature sought to diminish that deterrent effect by providing an award of attorney's fees and costs against the state under certain circumstances.

Article IV, Section 2, of the United States Constitution provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Implicit in the provision is a fundamental right to travel from state to state and enjoy the same privileges as the residents of those states. According to Supreme Court of Virginia v. Friedman, 487 U.S. 59, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988), there is a two- step inquiry when determining whether residency classifications violate the Privileges and Immunities Clause. First, the questioned activity must be sufficiently basic to the livelihood of the nation, and bear on the vitality of the nation as a single entity. Second, the challenged restriction must be closely related to the advancement of a substantial state interest, and the court can consider if there are alternative means available to further the state's purpose. In Friedman, the challenged restriction concerned residency requirements for qualified lawyers to become admitted to practice law in Virginia without taking the state's bar examination. The appellee was an attorney employed in Virginia, but resided in Maryland, and her application for admission to the Virginia bar was denied because she was not a permanent resident of the Commonwealth of Virginia. The Court held that the practice of

law was sufficiently basic to the national economy and protected by the privilege and immunities clause. Further, Virginia failed to demonstrate that its discrimination against nonresidents bears a close relationship to the advancement of its interests and there were alternative means available to achieve the state's objectives. Thus, the Court concluded Virginia's residency requirement for admission to the state's bar without examination violated the Privileges and immunities Clause.

In the case at bar, the challenged activity concerns whether a nonresident is entitled to an award of attorney's fees against the State of Florida.

Clearly, the residency requirements of Section 57.111, Florida Statutes, do not meet the first prong of the inquiry articulated in Friedman, supra. An award of attorney's fees is in derogation of the common law, allowed only when provided for statutorily or contractually. See Rivera v. Deauville Hotel, Employees Service Corporation, 277 So.2d 265 (Fla. 1973). Entitlement to an award of attorney's fees is not sufficiently basic to the national economy and is not a privilege protected by the Privileges and Immunities Clause. Secondly, the State of Florida has a substantial interest in limiting the award of attorney's fees to residents. Without the residency requirement, the state's limited financial resources would become available to nonresidents who do not aid the state's economy nor replenish the state's coffers by paying taxes.

The appellant also contends that the classification scheme between licensed residents and licensed nonresidents in Section 57.111, Florida Statutes, violates the Equal Protection Clause under the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Florida Constitution.

The Fourteenth Amendment to the United States Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. It is the function of the reviewing court to

determine whether the classifications are reasonable in light of the purpose of the statute and whether the statute presents an arbitrary or invidious discrimination between the classes. See McLaughlin v. State of Florida, 379

U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). The state must demonstrate the statute's classifications are rational and reasonably related to the state's interests. However, the state is not required to precisely articulate the legitimate underlying purposes of the classification if the classification does not impinge upon any fundamental interests of that group. See Baldwin v. Fish and Game Commission of Montana, 435 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978).

In the instant case, the Florida Equal Access to Justice Act's provision for an award of attorney's fees to residents does not impinge upon any fundamental right of the appellant. Additionally, the statutory distinction in Section 57.111 between resident and nonresident licensees is rationally and reasonably related to the state' economic interest in limiting the financial impact of an award of attorney's fees.

We affirm the denial of the appellant's petition for attorney's fees.

BOOTH, J. and WENTWORTH, SENIOR JUDGE, CONCUR.

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

The Honorable Diane Cleavinger, Hearing Officer Division of Administrative Hearings

WHEREAS in that certain cause filed in this Court styled:

BRIAN LEE JORY CASE NO. 90-3125

vs.

DEPARTMENT OF PROFESSIONAL YOUR CASE NO. 90-2301F REGULATION, BOARD OF

PSYCHOLOGISTS

The attached opinion was rendered on July 11, 1991, YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James E. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 13th day of August, 1991.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 90-002301F

Orders for Case No: 90-002301F