S, )
)
Petitioner, )
)
vs. ) CASE NO. 95-1476F
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on April 17, 1995 by telephone conference call to Tallahassee, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Stanley E. Marable, Esquire
677 North Washington Boulevard, Suite 2
Sarasota, Florida 34236
For Respondent: Jack Emory Farley, Esquire
Department of Health and Rehabilitative Services
2020 East Georgia Street Bartow, Florida 33830
STATEMENT OF THE ISSUES
Whether Petitioner is entitled to an award of attorney's fees as a prevailing small business party in an adjudicatory proceeding initiated by a state agency as provided under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
PRELIMINARY STATEMENT
On January 28, 1992, a formal hearing, pursuant to Section 120.57(1), Florida Statutes, was held before the Division of Administrative Hearings. The Hearing Officer issued a Recommended Order, dated February 28, 1992, recommending that A.S.'s name be expunged from the Abuse Registry. The Final Order issued by the Department rejected the recommendation and denied the request to expunge. A.S. appealed the decision of the Agency to the Second District Court of Appeal which reversed the Department's Final Order on April 23, 1993. A.S. v. DHRS, 616 So.2d 1202 (Fla. 2d DCA 1993). A.S. then filed the
Petition for Costs and Attorney's Fees, pursuant to Section 57.111, Florida Statutes, before the Division of Administrative Hearings on May 18, 1993. HRS replied to the Petition and alleged, inter alia, that the motion was premature
since the Department had filed a notice of appeal to the Supreme Court of Florida. The Court did accept jurisdiction and on February 6, 1995 issued its Mandate affirming, in part, the decision of the District Court. DHRS v. A.S., 648 So.2d 128 (Fla. 1995). In its Final Order on Remand, dated January 20, 1995, HRS expunged A.S.'s name from the Abuse Registry. On February 6, 1995,
A.S. simultaneously filed a Renewed Motion for Award of Costs and Attorney's Fees with the Department and with the Division of Administrative Hearings. This matter was set for hearing on the threshold issue of whether Petitioner, A.S., was a "small business party" under the provisions of Section 57.111, Florida Statutes. The Department renewed its Response to Motion for Attorney's Fees and Costs, which was originally filed on May 21, 1993 but not ruled on since the Motion was premature. The hearing on the motion was held on April 17, 1995. No transcript was prepared. The Petitioner submitted a Memorandum in Support of Motion for the Award of Attorney's Fees subsequent to the hearing and oral argument of counsel. No additional submissions by the parties is necessary.
Based upon the undisputed facts, the following findings of fact are determined:
FINDINGS OF FACT
Petitioner, A.S., is the primary custodial parent of the child, A.S., who is now ten years old.
At the time of the original incident, A.S. was a full time state wildlife law enforcement officer.
On May 18, 1991, Respondent initiated a child protective services investigation in which resulted in the creation of FPSS Report 91-052785, wherein the Respondent proposed to confirm Petitioner as the perpetrator of abuse or neglect of his child.
Petitioner requested and obtained a formal hearing before the Division of Administrative Hearings. This resulted in the issuance of a Recommended Order, dated February 28, 1992, wherein this Hearing Officer recommended that Petitioner's name be expunged from the Abuse Registry.
The Respondent rejected the recommendation and issued a Final Order denying Petitioner's request for expungement.
The Final Order was appealed to the Second District Court of Appeal and subsequently to the Supreme Court of Florida which reversed the Final Order of the Department.
On remand from the Court, the Department issued a Final Order on Remand, dated January 20, 1995, which expunged Petitioner's name from the Abuse Registry.
Petitioner is clearly the prevailing party in this matter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has original jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsections 57.111(4)(b)1. and 120.57(1), Florida Statutes (1991). See: DHRS v. S.G., 613 So.2d 1380, 1386 (Fla. 1st DCA 1993).
The Florida Equal Access to Justice Act (FEAJA), Section 57.111, Florida Statutes, 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.
The FEAJA, enacted by the Florida Legislature in 1984, is patterned after a federal law on the same subject - The Federal Equal Access to Justice Act (the Federal Act), 5 U.S.C., Section 504. Enacted in 1981, the Federal Act provides in part:
(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust . . .
The federal and state statutes use similar language, and the legislative history of the Florida Act shows that legislators were aware of the federal prototype. Gentele v. Department of Professional Regulation, 9 FALR 311, (Division of Administrative Hearings, June 20, 1986) citing Senate Staff Analysis and Economic Input Statements CS/SB 438 (5-2-84); and the record of the 5-2-84 meeting of the Senate Governmental Operations Committee, sponsor of the bill.
When, as in this case, a Florida statute is patterned after a federal law on the same subject, it will take the same construction in the Florida courts as its prototype has been given in federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. Gentele v. Department of Professional Regulation, 513 So.2d 672, 673 (Fla. 1st DCA 1987).
Section 57.111, Florida Statutes, provides for an award of attorney's fees from the state to a "small business party" under certain circumstances in order to diminish the detrimental effect of seeking review of, or defending against governmental action. This section states in part:
(3)(d) The term "small business party" means:
A sole proprietor of an unincorporated business, including a professional practice, whose principal office is 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.
Therefore, in order to recover attorney's fees and costs under FEAJA, Petitioner must first establish that he is a sole proprietor. The term "sole proprietor" is not defined in the statutes. Accordingly, the ordinary meaning of the term applies. Proprietor is "a person who has a legal title or exclusive right to some property; an owner." Webster's New Twentieth Century Dictionary (Unabridged Second Edition), William Collins Publishers, Inc. 1980. Thus, a sole proprietor is the single or individual owner of a business.
There is no evidence to support a finding that A.S. is a sole proprietor of a business. The undisputed facts are that A.S. is a state employee employed on a salaried basis as a wildlife law enforcement officer. By definition the Florida Equal Access to Justice Act does not apply to individual employees such as A.S. "If the Legislature had intended the Act to apply to individual employees, it could have said so." Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840, 841 (Fla. 1st DCA 1988). In addition, Petitioner's reliance on Department of Health and Rehabilitative Services v. S.G., 613 So.2d 1380 (Fla. 1st DCA 1993) for the proposition that Section 57.111 permits the award of attorney's fees to individuals is misplaced. In the cited case, the Hearing Officer specifically found that S.G. "satisfied certain prerequisites for standing to seek fees under this statute..." in that
S.G. was a prevailing small business party. Supra, at p. 1383, and the District Court upheld that determination, at p. 1385.
It should be noted that the Federal Act does not restrict those eligible to seek attorney's fees to "small business parties, but includes "prevailing parties". However, despite its broad applicability, it has been held that "no fee award can be made under the Federal Act if the adjudication in question "involved in the selection or tenure of an employee." Such decisions are excluded as being within the discretion of the agency involved. D'Angelo v. Department of the Navy, 593 F. Supp. 1307, 1310 (Dist. Ct. E. Dist. Penn. 1989).
Since Petitioner does not qualify as a small business party under the Florida Equal Access to Justice Act, it is unnecessary to determine if the Department's actions at the time this matter was initiated was "substantially justified" in law and fact. See generally: Gentele v. Department of Professional Regulation, Board of optometry, 513 So.2d 672, 673 (Fla. 1st DCA 1987).
