STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST L. HOWEY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8198F

) CRIMINAL JUSTICE STANDARDS ) TRAINING COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 20, 1991 in West Palm Beach, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ernest L. Howey, pro se

5016 South Dixie Highway

West Palm Beach, Florida 33405

For Respondent: John P. Booth, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's request for an award of attorney's fees and costs in connection with the Respondent's voluntary dismissal of the Administrative Complaint in Division of Administrative Hearings Case No. 90-920 should be granted.

PRELIMINARY STATEMENT

1. This case was initiated on December 31, 1990 when Petitioner filed a Motion To Tax Costs after the Criminal Justice Standards and Training Commission ("CJSTC") voluntarily dismissed an Administrative Complaint which it had brought against Petitioner. That earlier case was styled Criminal Justice and Training Commission vs. Earnest L. Howey, DOAH Case No. 90-920. A hearing in Case No.

   90-920 was scheduled for June 1, 1990. At the commencement of that hearing, the CJSTC made an ore tenus motion for continuance and for leave to amend the Administrative Complaint to include additional allegations that had come to the attention of counsel for the CJSTC immediately prior to commencement of the hearing. Hearing Officer Joyous D. Parrish denied the Motion For Continuance

   and the CJSTC entered an ore tenus voluntary dismissal. As a result, Hearing Officer Parrish entered an Order Closing File in Case No. 90-0920 on June 25, 1990.

   
   

2. The Motion To Tax Costs did not set forth the legal or statutory basis for the Motion. Since Section 120.59(6)(a), Florida Statutes, does not apply to a state agency, the Motion was treated as a request for attorney's fees under Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act ("the Act"). The case was transmitted to the Division of Administrative Hearings where it was set up as a new file and assigned Case No. 90-8198F (the "Fee Case"). Earnest L. Howey was designated as the Petitioner and the CJSTC was designated as the Respondent in the Fee Case.

   
   

3. The CJSTC subsequently filed an Amended Administrative Complaint against Mr. Howey which was assigned DOAH Case No. 91-210. That Amended Administrative Complaint essentially renewed the charges contained in Case No. 90-0920. As set forth in an Order entered on February 19, 1991 in Case Nos. 90- 8198F and 91-0210, the two cases were scheduled for hearing on April 24, 1991. The cases were subsequently rescheduled for hearing on June 20, 1991. Both cases were heard on that date.

   
   

4. The Motion To Tax Costs was filed by an attorney who was representing Mr. Howey at the time the initial case was set for hearing. As set forth in the Order Granting Continuance and Rescheduling Hearing entered on April 24, 1991, in DOAH Case Co. 90-8198F and DOAH Case No. 91-0210, that attorney has subsequently failed to make an appearance in this case or the refiled case, and Mr. Howey has assumed representation of himself.

   
   

5. At the commencement of the hearing on June 20, the parties agreed that, to the extent relevant, the evidence presented should be considered in connection with both pending cases. It was explained to the parties that Mr. Howey had the burden of proof in connection with the Fee Case and he was granted an opportunity to present evidence relevant to that case. In that regard, Mr. Howey testified on his behalf and explained why he thought he was entitled to an award of costs and fees.

   
   

6. A trancscript of the entire proceedings conducted on June 20, 1991 has been filed with the Division of Administrative Hearings under Case No. 91-0210. That transcript has been forwarded to the CJSTC with the Recommended Order in that case. Niether party has submitted proposed findings of fact in connection with the Fee Case. The proposed recommended order filed by counsel for the CJSTC in Case 91-0210 included legal arguments in opposition to an award of fees to Mr. Howey. To the extent relevant, those legal arguments are addressed in this Final Order.

   
   

   CONCLUSION

   
   

7. The Florida Equal Access to Justice Act only inures to the benefit of a "small business party." The Administrative Complaint in Case No. 90-920 was brought against Mr. Howey individually in his capacity as a law enforcement officer and not against his company. Mr. Howey has failed to demonstrate that he is a "small business party" for purposes of the Act. Thus, Mr. Howey does not qualify for an award under this statute.

   
   

8. In any event, an agency's decision to voluntarily dismiss an Administrative Complaint does not automatically entitle a respondent to an award of fees and costs. Under Section 57.111(4)(a), Florida Statutes, a voluntary

   dismissal can serve as the basis for an award of fees and costs to a prevailing small business party "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." As indicated above, an Amended Administrative Complaint was filed against Mr. Howey essentially reasserting the allegations contained in the initial case. As reflected in the Recommended Order entered in Case No. 91-210 contemporaneously herewith, the allegations against Respondent have ultimately been proven. No evidence was presented that the CJSTC was acting in bad faith in dismissing the initial case. No breakdown has been given as to the fees and costs directly related to preparation for the canceled hearing in June, 1990. Under these circumstances, an award of attorney's fees to Mr. Howey would be unjust.

   
   

9. Finally, Section 57.111(4)(b)1, Florida Statutes, requires the prevailing small business party's attorney to ... "submit an itemized affidavit

... to the Division of Administrative Hearings... which affidavit shall reveal the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions, hearings, and appeals in this proceeding." No such affidavit has been provided in this case nor has Mr. Howey been able to provide an accounting of the attorney's fees that have been paid and the services that have been rendered. It is clear that the initial burden of proof in this case was on Mr. Howey. See, Department of Professional Regulation, Division of Real Estate v. Toledo Realty, 549 So.2d 715 (Fla. 1st DCA 1989). Mr. Howey has failed to carry that burden. Accordingly, it is

ORDERED:

The Motion To Tax Cost is denied and Division of Administrative Hearings Case No. 90-8198F is CLOSED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of October, 1991.

J. STEPHEN MENTON 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 16th day of October, 1991.

COPIES FURNISHED:

John F. Booth, Esquire Assistant General Counsel Florida Department of

Law Enforcement

P. O. Box 1489 Tallahassee, FL 32302

Ernest L. Howey

5016 South Dixie Highway

West Palm Beach, Florida 33405

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy General Counsel

Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore Commissioner

Post Office Box 1489 Tallahassee, Florida 32302

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. IN THE ALTERNATIVE, A PARTY ADVERSELY AFFECTED BY THIS FINAL ORDER MAY SEEK REVIEW IN A CIVIL ACTION FILED IN CIRCUIT COURT UNDER SECTION 230.23(4)(M)4., FLORIDA STATUTES (1988 SUPP.), CHAPTER 88-27, LAWS OF FLORIDA.

Docket for Case No: 90-008198F

Orders for Case No: 90-008198F