STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HYACINTH D. WYNTER, n/k/a, ) HYACINTH D. WYNTER WALLACE, )

)

Petitioner, )

)

vs. ) Case No. 97-4381F

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

FINAL ORDER

A Formal Hearing was heard before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on June 17, 1998, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert D. Gatton, Esquire

Broad and Cassel

390 North Orange Avenue, Suite 1100 Orlando, Florida 32801

Michael D. Jones, Esquire Atrium II Building

301 West State Road 434, Suite 317 Winter Springs, Florida 32708

For Respondent: Sonia Nieves-Burton, Esquire

Department of Health

604 Courtland Street, Suite 200

Orlando, Florida 32804 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to an award of attorney's fees and costs 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 (FEAJA), Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

Respondent filed a Citation for Violation on August 19, 1996, and Petitioner filed a request for a formal hearing. A formal hearing, pursuant to Section 120.57(1), Florida Statutes, was held before the Division of Administrative Hearings. The Administrative Law Judge issued a Recommended Order, dated

May 30, 1997, recommending the charges be dismissed against Petitioner. A final order adopting the recommended order was issued on July 13, 1997. The Petition for Costs and Attorney's Fees, pursuant to Section 57.111, Florida Statutes, was filed with the Division of Administrative Hearings by the Petitioner on September 16, 1997. This matter was subsequently set for hearing. The hearing on the merits was held on June 17, 1998.

Official Recognition was taken of the transcript of the formal hearing held on March 25, 1997. Counsel for Petitioner testified, as did the Petitioner and Thomas Lang, Esquire.

Respondent offered the testimony of six witnesses. Transcript was filed with the Clerk of the Division of Administrative Hearings on July 2, 1998. The Petitioner filed a proposed recommended order on July 9, 1998. Respondent has not submitted proposed findings of fact or conclusions of law as of the date of this order.

Based upon all of the evidence, the following findings of relevant fact are determined:

FINDINGS OF FACT

1. Petitioner, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, is the owner of a residence and care facility located at

   2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present.

2. Respondent, Department of Health, a successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in the state.

3. The Seminole County Health Department, a division of Respondent, was aware that the Petitioner had purchased the subject commercial property to establish an elderly residence facility.

4. A member of the Seminole County Development Review Committee was aware that the Petitioner had purchased the property for an elderly home business.

5. The Respondent's Inspector acknowledged that on his first visit to the residence, he observed three elderly persons who looked like they lived there.

6. The Petitioner established that she had three residents living in a family care program, which was not required to be licensed, but, prior to the proceedings, moved them to one of her other licensed assisted living facilities.

7. Petitioner established that she was operating a business on the property as a sole proprietor; that her principal place of business was located at 2323 Tuscawilla Road, Winter Springs, Florida; that she did not have more than 25 full-time employees; and that she did not have a net worth of more than $2,000,000.

8. On or about June 19, 1996, the Seminole County Public

   Health Department received a complaint of a possible sanitary nuisance existing on the Petitioner's property.

9. On June 21, 1996, an inspection of Petitioner's property revealed that the property contained a large home with a septic tank and drainfield in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property were located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall.

10. Observation by the Respondent's inspector revealed standing water in the backyard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Although, subsequent tests for sewage contamination were inconclusive, the inspector's observation indicated the drain field had failed.

11. Petitioner was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days.

12. Respondent re-inspected Petitioner's property on

    
    

    July 2, 1996, and observed the same conditions as were observed on June 21, 1996. A three-day extension was granted to Petitioner in order for the tank to be pumped.

13. On July 3, 1996, Orlando Septic Tank Service, Inc., pumped the septic tank and disinfected the area. It also advised Petitioner that the drainfield had failed and would need to be

    replaced.

    
    

14. On July 8, 1996, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1996. It was served on Petitioner by posting and by certified mail, on July 12, 1996. Petitioner was directed to abate the nuisance within seven days of the notice or an administrative fine would be imposed.

15. On August 13, 1996, Respondent inspected the Petitioner's property again and observed the same conditions as on previous inspections. Respondent was informed of the projected starting date for repair of the drainfield; however, a Citation for Violation was issued on August 16, 1996, calling for corrective actions to abate the condition by 4:00 p.m.,

    August 19, 1996.

    
    

16. In the Recommended Order, the findings of fact determined that the test for sewage contamination was inconclusive. The evidence was insufficient for the Petitioner to meet its burden of proof that the standing water was a nuisance injurious to health or that the kennel immediately adjacent to the site did not contribute to the coloration and the odor associated with the standing water. The Recommended Order was adopted by the Agency in a Final Order on July 13, 1997.

17. Petitioner established a contractual relationship with the law firm of Leffler & Associates, P.A., and Michael D. Jones,

    Esquire, to represent her interest in this cause on a contingent fee basis whereby the legal fees received would be those awarded by this Administrative Law Judge.

18. Michael D. Jones testified that prior to the instant proceeding, his firm had billed a total of 27.75 hours, billed at the rate of $185 per hour. Jones anticipated an additional $500 in time to prepare and attend the hearing, together with $50 in costs for Landmark Reporting.

19. Tom F. Lang, Esquire, a licensed attorney with experience in the administrative area of law, testified that after review of the file and Jones' time records that a reasonable fee which should be charged in the Central Florida area would be in the vicinity of $6,500 together with costs.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsections 57.111(4)(b)1. and Section 120.57(1), Florida Statutes (1997).

21. 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.

22. 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 pertinent 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 . . .

23. 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, (DOAH,

    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.

24. 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).

25. 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:

    
    

    1.a. 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.

26. The Petitioner established that she was a small business party within the contemplation of the statute in that:

    1. Petitioner was operating a business as a sole proprietor, although she withheld that information at the time of the investigation;

       
       

    2. Petitioner's principal place of business was in the State of Florida, located at 2323 Tuscawilla Road, Winter Springs, Florida 32708;

       
       

    3. Petitioner did not have more than 25 full-time employees; and

       
       

    4. Petitioner did not have a net worth of more than $2,000,000.

       
       

       See generally, Ann and Jan Retirement Villa v. Department of Health and Rehabilitative Services, 580 So. 2d 278 (Fla. 1st DCA 1991).

27. Assuming that Petitioner qualifies as a small business party under the Florida Equal Access to Justice Act, a state agency must have initiated some action against a small business

    party. The recited purpose behind the establishment of

    Section 57.111, Florida Equal Access to Justice Act, is that "[t]he Legislature finds that certain persons may be deterred from seeking review of, or defending against, unreasonable government action because of the expense of civil actions and administrative proceedings. . . . The purpose of this section is to diminish the deterrent effect of seeking review of, or defending against, government action by providing in certain situations an award of attorney's fees and costs against the state." Section 57.111(3)(b) provides as follows: The term "initiated by a state agency" means that the state agency: . . .

    (3) was required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency.

28. In the instant case, the Respondent agency issued a Citation for Violation directed to Petitioner, charging her with certain health code violations. Petitioner denied the charges and requested a formal hearing, pursuant to Chapter 120. Therefore, this matter was initiated by a state agency.

29. Petitioner is a "prevailing small business party" since the final order has been entered in her favor. Section 57.111(3)(c)1., Florida Statutes (1997). Department of Professional Regulation v. Toledo Realty, 549 So. 2d 715, 717 (Fla. 1st DCA 1989).

30. Section 57.111(3)(e) of the Act states: 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. It is

    instructive to look to the decisions of federal courts which have construed the meaning of the language of the Federal Act.

    Structured Shelters Financial Management Inc. v. Department of Banking, 10 FALR 389, (DOAH 1987); Gentele v. Department of Professional Regulation, Board of Optometry, supra. In discussing the meaning of the term "substantially justified," the court in Ashburn v. U.S., 740 F.2d 843 (11th Cir. 1984), said:

    The government bears the burden of showing that its position was substantially justified. (citation omitted) The standard is one of reasonableness; the government must show "that its case had a reasonable basis both in law and fact." (citations omitted)

    Ashburn went on to say that the fact that the government lost its case does not raise a presumption that the government's position was not substantially justified. Neither is the government required to establish that the decision to litigate was based on a substantial probability of prevailing. White v. U.S., 740 F.2d 836 (11th Cir. 1984).

31. In determining whether this proceeding was justified, the responsibility of the Respondent's Seminole County Health Department should be considered. The Respondent is responsible for conducting on-site inspections and complaint investigations associated with a residential septic tank and drainfield system, and for conducting enforcement activities, including issuing citations for violations of the law. Sections 381.0065(3)(b),

    (h) and 381.0067, Florida Statutes.

    
    

32. In the summer of 1996, the Respondent was clearly seeking to correct what it believed was a sanitary nuisance. The Respondent conducted inspections and issued a notice to abate a sanitary nuisance, followed by a citation in an effort to have the property-owner correct the problems on the property. This was subsequently accomplished.

33. Although at the formal hearing the Respondent failed to meet its burden of proof that the standing water over the septic tank was a nuisance injurious to health, nevertheless, the inspections conducted by Respondent's inspectors were reasonable and professional. The inspectors followed the procedures outlined in the Respondent's statutes and rules. Accordingly, at

    the time the citation was issued, the Respondent had a reasonable basis both in law and fact for its decision to issue the notice and the citation and was, therefore, substantially justified in issuing the citation. Gentele v. Department of Professional Regulation, supra. Department of Professional Regulation v.

    Toledo Realty, supra.

    
    

34. Petitioner did present sufficient evidence that the request for attorney's fees was reasonable; however, attorney's fees and costs cannot be awarded under the provisions of the FEAJA.

CONCLUSION

In this case, the Respondent initiated the action and the Petitioner was the prevailing party in the underlying action. In addition, greater weight of the evidence does support the position that Petitioner is a "small business party" within the meaning of the Florida Equal Access to Justice Act. However, the Respondent had a reasonable basis in both law and fact for its actions and was substantially justified in its position.

Therefore, it is

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

DONE AND ORDERED this 22nd day of July, 1998, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

COPIES FURNISHED:

Robert D. Gatton, Esquire Broad and Cassel

390 North Orange Avenue Post Office Box 4961

Orlando, Florida 32802-4961

Michael D. Jones, Esquire Atrium Building II

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1998.

301 West State Road 434, Suite 317 Winter Springs, Florida 32708

Sonia Nieves-Burton, Esquire Department of Health

604 Courtland Street, Suite 200

Orlando, Florida 32804

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Pete Peterson Department of Health Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

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 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: 97-004381F

Orders for Case No: 97-004381F