Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 1, 1991, in Tallahassee, Florida.
For Petitioner: Peter T. Gianino, Esquire
The issue presented is whether Petitioner is entitled to recover attorney's fees and costs from Respondent pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
By Notice of Hearing dated July 9, 1991, this cause was scheduled for final hearing to be conducted on November 1, 1991. Since Petitioner's Unilateral Prehearing Stipulation filed on October 23, 1991, indicated that the parties intended to rely on documentary evidence only, the undersigned contacted the parties to determine the need for convening an evidentiary hearing in this cause. The parties agreed that there was no such need. During a telephonic hearing conducted on November 1, 1991, the parties agreed to deadlines for the
filing of their exhibits to be considered as evidence in this cause and for the filing of their proposed final orders.
Both parties submitted proposed findings of fact in the form of proposed final orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Final Order.
On September 25, 1989, Fredrick Hassut, Jr., an entomologist-inspector in the Department's Winter Park office, received a telephone call from Mary Ellen Jenkins complaining about fumigation services which had been rendered by Petitioner. In response to that telephone call, Hassut forwarded to her the Department's official form for complaints against pest control companies.
Hassut received Jenkins' completed form, together with her five-page handwritten letter of complaint, on October 6, 1989.
On October 9, 1989, Hassut sent to Petitioner the Department's official form for pest control companies to use in responding to consumer complaints made against them. Hassut received Petitioner's completed form on October 16, 1989.
Between September 27, 1989, and November 13, 1989, when Hassut completed his investigation, he had numerous telephone conversations with Petitioner concerning Jenkins' allegations, had visited the Jenkins' residence, and had reviewed the contract entered into between Mike and Susan Gillen and Petitioner for tent fumigation of the subject residence.
By the conclusion of his investigation, Hassut knew the following facts. Petitioner had been contacted by a real estate brokerage company to do an inspection for termites and wood destroying organisms at a residence, attendant to a contract for the purchase and sale of that residence. The residence was owned by Mike and Susan Gillen. Petitioner's employee performed the inspection, located drywood termites, and recommended tent fumigation for eradication. On June 9, 1989, a contract was entered into between Petitioner and Mike and Susan Gillen for fumigation services, and the contract established July 7, 1989, as the date on which such services would be performed. Although the contract called for cash upon completion of service, subsequent arrangements had been made, and Petitioner had agreed that he would be paid for the fumigation services from monies to be escrowed at the closing, a routine business arrangement in the industry. A fumigation crew went to the residence on July 7 as agreed by contract, but the services were postponed to Friday, September 8, 1989. On Saturday, September 9, the residence was tented, and a certified operator employed by Petitioner injected Vikane, the fumigant specified in the contract. On Sunday, the tarps were removed, and Petitioner "cleared" the residence, using an Interscan to test for the presence of Vikane.
One of the complaints made by Jenkins and by her husband who works in the pest control industry and had done so for the previous six years was that Petitioner had failed to furnish them with a printed list of items to be removed from the structure, prior to fumigation. Mrs. Jenkins told Hassut that she was the new owner of the residence which she had purchased from Mike and Susan Gillen, that the closing on the sale had taken place on July 5, and that the Jenkins had moved into the structure prior to the structure being treated for termites. Mrs. Jenkins never represented to Hassut that she had advised Petitioner, prior to fumigation, that the ownership of the property had changed. Petitioner advised Hassut that he had never heard of Mrs. Jenkins or her husband until the day after the fumigation services were completed when Mr. Jenkins
called to complain about the services. Petitioner advised Hassut that he did not know that a closing had in fact taken place and that a new owner was occupying the structure when the fumigation services were performed. Petitioner believed at all times through the completion of the fumigation work that he was dealing with the Gillens. Petitioner advised Hassut that Mike Gillen had been given a Customer Duty List, which included the written list of items to be removed from the structure, on June 9, 1989, when Mike Gillen signed the contract with Petitioner for fumigation services, and that Gillen had signed a copy of that list to show that it had been provided to him. Petitioner had assumed the closing had been postponed because the fumigation services were postponed, and termite treatment is normally a condition precedent to a closing. Had Petitioner known that there was a new owner of the structure, he would have obtained a contract from the new owner prior to the rendering of services rather than performing services for someone with whom he did not have a contract.
At the time, Hassut believed that a pest control operator is under no legal duty to verify that the owner of a structure for which there is a contract for fumigation services is still the owner at the time that the services are performed. Hassut further believed that if Petitioner did not know that the Gillens had completed the sale of their home to Mrs. Jenkins and if Petitioner had given the required printed list of items to be removed to the Gillens, then Petitioner would have complied with the regulations requiring provision of that printed list.
Hassut made no attempt to contact either Mike or Susan Gillen to ascertain if they had advised Petitioner that the ownership of the house had changed or to ascertain if they had been provided the required printed list, as Petitioner contended. Further, he made no attempt to contact the real estate agent or the title company involved in the closing to ascertain if they had advised Petitioner that ownership of the property had changed.
Hassut specifically determined that Petitioner was not negligent in the performance of fumigation services at the Jenkins residence.
When Hassut completed his consumer investigation, he prepared his Notice of Recommended Enforcement Action containing his conclusions as to violations he found during his investigation. He forwarded that document to the Department's Jacksonville office, specifically to James Bond, the enforcement coordinator, for final decision as to whether Petitioner would be charged with violating any of the statutes and rules regulating the pest control business.
Hassut recommended that Petitioner be charged with two violations only. Section 482.226(6), Florida Statutes, requires that a Notice of Treatment be posted at premises where fumigation services have been performed and that the location of that Notice be notated on the service contract. Since Hassut was unable to locate the Notice of Treatment, he recommended that Petitioner be charged with violating Section 482.226(6). He also recommended that Petitioner be charged with violating Section 10D-55.110(3), Florida Administrative Code, for failing to furnish to the property owner or agent a printed list of items to be removed prior to fumigation.
James Bond reviewed Hassut's investigative report and recommendations, and then forwarded that report together with Bond's own recommendation to Philip
R. Helseth, Jr., pest control administrator, who made the decision that an administrative complaint should be filed against Petitioner. Part of the reason that Helseth determined to take action against Petitioner was the fact that on
one occasion during Petitioner's ten and one-half years in business, Petitioner had received a warning letter from the Department.
Before the Administrative Complaint was prepared and served on Petitioner, no one referred the investigation back to Hassut with instructions that he further investigate by interviewing the Gillens. Further, no one in the Jacksonville office consulted Hassut regarding the numerous violations which were included in the Administrative Complaint to determine if Hassut agreed that his investigation had revealed facts supporting the expanded list of violations.
The Administrative Complaint prepared by the Department and served on Petitioner charged Petitioner with violating three statutory provisions and four of the Department's regulations. Interestingly, the one statutory violation which appeared in Hassut's recommendation--failure to post a Notice of Treatment and notate its location on the contract--was not one of the charges included in the Administrative Complaint.
The Administrative Complaint charged Petitioner with having violated Sections 482.161(1)(a), 482.161(1)(e), and 482.161(1)(f), Florida Statutes, and Sections 10D-55.105(2), 10D-55.106(1), 10D-55.108(3)(c), and 10D-55.110(3), Florida Administrative Code. After service of the Administrative Complaint on him, Petitioner timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. The matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding and was assigned DOAH Case No. 90-0944. The final hearing was conducted on September 27, 1990, in Stuart, Florida.
At the commencement of the final hearing, the Department dismissed several of the allegations contained in the Administrative Complaint filed against Petitioner. The Department announced on the record that the only statutes and rules Petitioner was still alleged to have violated were Sections 482.161(1)(a) (violating the Department's statutes or rules), 482.161(1)(f) (performing pest control in a negligent manner), Section 10D-55.108(3)(c) (using an improper fumigant and/or using a proper fumigant improperly), and Section
10D-55.110(3) (failing to furnish the property owner or agent a printed list of items to be removed from the structure prior to fumigation).
The Recommended Order entered after the conclusion of the final hearing found that the Department offered no evidence that Petitioner used an improper fumigant or used the fumigant improperly; that the evidence was uncontroverted that Petitioner supplied Gillen, the property owner, with a Customer Duty List, the accepted common name of the fumigant to be used, notification of which materials may be contaminated or damaged by the fumigant, as well as other precautions to be taken by the property holder; that the Department offered no evidence that Petitioner was guilty of performing pest control in a negligent manner; and that Petitioner had not violated any of the Department's statutes or rules with which he was charged. That Recommended Order, entered on January 7, 1991, recommended that a final order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him. On February 15, 1991, the Department entered its Final Order adopting the findings of fact and conclusions of law set forth in the Recommended Order, finding Petitioner not guilty of the violations with which he was charged, and dismissing the Administrative Complaint.
The Department had no reasonable basis in law and fact at the time that it issued its Administrative Complaint against Petitioner.
Petitioner expended the sum of $6,923.50 in attorney's fees and
$698.30 in costs, for a total of $7,621.80, in successfully defending himself and his company in the administrative action resulting from the Department's Administrative Complaint.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Section 57.111(4)(a), Florida Statutes, provides that:
. . . 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, Section 57.111(3)(e), Florida Statutes, 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." Petitioner has met his burden of showing entitlement to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act.
In its pleadings filed in this cause, the Department agrees that Petitioner is a prevailing small business party in an administrative proceeding pursuant to Chapter 120 initiated by a state agency. The Department also admits that the amount of attorney's fees and costs claimed by Petitioner is reasonable. The only dispute raised by the Department in this proceeding is whether the actions of the Department in initiating the underlying administrative proceeding were substantially justified, i.e., whether the proceeding had a reasonable basis in law and fact at the time it was initiated by the Department.
The initiation of the underlying proceeding, DOAH Case No. 90-0944, was not substantially justified since it had no reasonable basis in law and fact at the time it was initiated. The investigation conducted by Hassut was cursory. He knew that Petitioner contended that Petitioner had furnished the required written list to the owner of the property with whom Petitioner had entered into a contract for fumigation services, that Petitioner contended he did not know that the ownership of the property had changed, and that Mrs. Jenkins, the new owner of the property, did not contend that she had advised Petitioner that there was a new owner. The investigator also believed that if Petitioner had given the required printed list to the owner with whom he had contracted, Petitioner would have complied with that requirement even if the title to the property had subsequently changed hands since Petitioner had no legal obligation to monitor or verify the chain of ownership. Yet, he never contacted the previous owners to ascertain if Petitioner had given them a printed list of items to be removed from the structure prior to fumigation.
Although missing a key ingredient, the investigator forwarded his report to his superiors with the recommendation that Petitioner be charged with violating one statute and one rule. His superiors did not refer the
investigation back to him with instructions to obtain the missing ingredient. Rather, his superiors ignored the recommended statutory violation and issued an Administrative Complaint charging Petitioner with the violation which had the missing ingredient, to which alleged violation they added six of their own. The person making the final decision as to whether the Administrative Complaint should be filed with all seven alleged violations did not believe that it was important to ask the Gillens, who were the property owners at the time that the fumigation contract was signed, if Petitioner had provided them with the required printed list; did not know that his investigator had determined that Petitioner had not performed the fumigation services in a negligent manner; and included in his determination of whether to file an administrative complaint the fact that Petitioner had on one occasion during his ten and one-half years in business received a warning letter from the Department. No evidence was offered as to when that occurred, what violation was involved, or whether Petitioner was given an opportunity to contest the issuance of that warning letter. The Department did not act in a reasonable manner in conducting its investigation and review prior to the filing of the Administrative Complaint in the underlying action.
The Administrative Complaint alleged the violation of three statutes and four rules. At the commencement of the final hearing the Department voluntarily dismissed the allegations that one of those statutes and two of those rules had been violated and proceeded forward on its allegations that Petitioner had violated two statutes and two rules. The Department presented no evidence that Petitioner violated the two statutes, presented no evidence that Petitioner violated one of the rules, and presented no evidence to controvert Petitioner's evidence that he had provided the required written list to the owner of the property when he was hired to fumigate it. The Department's actions in continuing forward with its prosecution of Petitioner were not reasonable since it clearly did not have evidence to support the allegations it was making against Petitioner at the time that it initiated its action, as verified by its lack of evidence in prosecuting the action. In short, the initiation of the underlying proceeding was not substantially justified.
The affidavit filed by Petitioner in support of his Amended Petition for Attorney's Fees and Costs states the nature, extent, and monetary value of the services rendered by Petitioner's attorney as well as the costs incurred in defending the underlying action. Petitioner's pleadings filed in this cause seek reimbursement in the amount of $7,621.80, less than the maximum allowed by Section 57.111(4)(d)2., Florida Statutes. Petitioner has not requested reimbursement for attorney's fees and costs incurred in maintaining this proceeding. Section 57.111(5), Florida Statutes, requires that payment of an award of attorney's fees and costs pursuant to the Florida Equal Access to Justice Act be made within thirty days.
