STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD HALL, )

)

Petitioner, )

)

vs. ) Case No. 97-0175F

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

FINAL ORDER

A Formal Hearing was waived by the parties in lieu of the submission of a Prehearing Stipulation and briefs to the Administrative Law Judge, Daniel M. Kilbride, of the Division of Administrative Hearings, on May 20, 1997, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Kenneth W. Williams, Esquire

Douglas-Bailey and Alphonse

34 Jerome Avenue, Suite 312 Bloomfield, Connecticut 06002

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to an award for attorney's fees and costs under the provisions of Section 120.57(1), Florida Statutes, or some other provision of Florida law.

PRELIMINARY STATEMENT

On January 14, 1997, Petitioner filed with the Clerk of the Division of Administrative Hearings a Motion for Attorney’s Fees, which seeks an award of attorney’s fees based on an administrative proceeding and involves the same parties in DOAH Case No. 95-5896J. On January 22, 1997, Respondent filed a Response to Petitioner’s Motion. On January 30, 1997, Petitioner filed an Itemized List of Costs and Attorney’s Fees with the Clerk. A prehearing conference was held on February 20, 1997, and the parties agreed to submit a Prehearing Stipulation in lieu of testimony at a formal hearing on or before March 21, 1997.

Subsequently, a Motion for Enlargement of Time was filed in which the parties asked for additional time to submit the Stipulation. The parties were granted leave to file the Prehearing Stipulation on May 1, 1997, and to file their briefs in support of their positions on May 15, 1997. The Prehearing Stipulation was submitted on May 1, 1997. Petitioner filed his brief on May 15, 1997. Respondent has not filed a brief in this matter.

Based upon the Stipulated Findings of Fact, the following findings of fact are determined.

FINDINGS OF FACT

1. On July 31, 1996, this Administrative Law Judge issued a Recommended Order granting Petitioner’s request for an exemption from disqualification as a caretaker, in a position of special trust, under the provisions of Section 39.076(1), Florida Statutes (1994).

   
   

2. The Recommended Order was adopted by the Respondent in a Final Order, issued August 13, 1996. Petitioner was the prevailing party in the administrative proceeding before DOAH.

3. On September 30, 1996, in a separate case, the Public Employees Relations Commission (PERC) found that Petitioner was a permanent status employee at the time of his dismissal by Respondent.

4. PERC found that at no time during Petitioner’s employment with Respondent was Petitioner informed that he was anything other than a probationary and permanent status employee.

5. It was not until Petitioner’s dismissal on June 14, 1995, that Respondent informed him that he was a “substitute” employee.

6. Respondent did not inform Petitioner of any right to appeal he might have had to PERC at the time of his dismissal or at any time thereafter.

7. Petitioner was informed by Respondent that as a substitute employee his only rights of administrative appeal were with the Respondent and DOAH.

8. PERC found no evidence of a mistake or error in the hire of Petitioner; it found that Respondent intended to hire the Petitioner as a probationary employee, not as a substitute.

9. PERC found that Petitioner achieved permanent status by default when Respondent failed to remove him during the probationary period.

10. Petitioner became aware that he may have been a permanent status employee with rights of appeal to PERC on the day of the DOAH hearing.

11. Petitioner would not have brought the DOAH action, had he been apprised of his rights of appeal to PERC at or about the time of his termination.

12. Kenneth W. Williams, Esquire of the Law Office of Douglas-Bailey and Williams represented Petitioner through all stages of the administrative process, and Petitioner agreed to pay a reasonable fee for his services.

13. The Petition for Costs and Attorneys' Fees was filed on January 14, 1997.

14. The parties were unable to reach a stipulation regarding the entitlement to or the amount of reasonable attorney's fees to be awarded.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsections 120.569(2)(c) and 120.57(1), Florida Statutes (Supp. 1996).

16. Section 57.111, Florida Statutes is not available because Petitioner is not a small business party.

17. Section. 120.59(6) Florida Statutes (1995), the law in effect at the time Petitioner became entitled to seek fees under this section, is not available because the nonprevailing adverse party (Respondent) has not participated in two or more other such

    proceedings involving the same prevailing party and the provisions of this subsection do not apply to an agency. In addition, the Administrative Law Judge must make a determination that a party participated in the proceeding for an improper purpose in the recommended order. No such determination was made in the underlying case, DOAH Case No. 95-5896J, and a final order has been issued. Section 120.59(6)(d), now Section 120.595(1)(d), Florida Statutes (Supp. 1996).

18. Section 120.57(1)(b)5., Florida Statutes, now Section 120.569(2)(c), Florida Statutes (Supp. 1996) provides in pertinent part:

    All pleadings, motions, or other papers filed in the proceeding must be signed by the . . . party’s attorney

    . . . The signature constitutes a certificate that . . . it is not interposed for any improper

    purposes . . . If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose . . . an appropriate sanction, which may include . . . a reasonable attorney’s fee.

19. Petitioner has failed to show that any pleadings, motions, or other papers filed in DOAH Case No. 95-5896J were filed for an improper purpose.

Therefore, it is

ORDERED that the Petition for Attorney's Fees and Costs is DENIED and the Motion for Attorney’s Fees is DISMISSED.

DONE AND ORDERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.

COPIES FURNISHED:

Kenneth W, Williams, Esquire Douglas-Bailey and Alphonse

34 Jerome Avenue, Suite 312 Bloomfield, Connecticut 06002

Lynne T, Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

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: 97-000175F

Orders for Case No: 97-000175F