CHARLES M. CHILDERS, )
vs. ) Case No. 97-5601F
Respondent. )
This case came before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on the filing of Petitioner's Application for Attorney's Fees.
For Respondent: Andrew J. Baumann
The issue in this case is whether Petitioner, Charles M. Childers, is entitled to an award of attorney's fees and costs from Respondent, the Department of Environmental Protection, pursuant to Section 57.111, Florida Statutes (1997).
On or about September 27, 1995, Petitioner was cited for allegedly using improper fishing nets in violation of Article X, Section 16(b)(2), Florida Constitution. On or about February 9, 1996, the citation came before the County Court for Franklin County, Florida. The Court determined that Petitioner was guilty of a second degree misdemeanor. The Court, however, withheld adjudication and assessed $125.00 in court costs against Petitioner.
On July 5, 1996, Respondent notified Petitioner of its intent to suspend his Saltwater Products License for ninety days pursuant to Section 370.092(8)(b), Florida Statutes (1995).
Petitioner requested a formal administrative hearing to contest the suspension. After an informal hearing, Respondent entered a Notice of Final Order suspending Petitioner's license.
Respondent's decision was reversed by the District Court of Appeal, First District. On remand, Respondent entered an Order dated October 9, 1997, dismissing its complaint against Petitioner.
On or about October 30, 1997, Petitioner filed an Application for Attorney's Fees with Respondent seeking the payment of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. The application was filed by Respondent with
the Division of Administrative Hearings on November 21, 1997.
The application was designated Case No. 97-5601F and was assigned to the undersigned.
On December 16, 1997, an Order to Provide Information was entered. Respondent was given until January 5, 1998, to show cause why the application should not be granted. The time to respond was subsequently extended to January 20, 1998.
On January 20, 1998, Respondent filed Respondent's Memorandum in Response to Order to Provide Information. Respondent contested the requested award.
On January 26, 1998, a conference was conducted with the parties by telephone to discuss the manner in which this matter should proceed. During the conference the parties agreed that no formal hearing was necessary. The parties agreed that the facts alleged by Respondent in the Memorandum in Response to Order to Provide Information were accurate and sufficient to dispose of this matter.
It was also agreed that Petitioner would be allowed to file a response to Respondent's memorandum on or before February 16, 1998, and that, on or before February 27, 1998, Respondent would be allowed to file a reply to any response filed by Petitioner. Finally, it was agreed that this Final Order would be entered after consideration of the pleadings.
Respondent's Response to Memorandum for [sic] Response to Order to Provide Information. No reply was filed by Respondent.
Petitioner, Charles M. Childers, has been at all time material to this proceeding a commercial shrimp fisherman in the State of Florida. Mr. Childers has held, and continues to hold, a Saltwater Products License (hereinafter referred to as the "License") issued by the State of Florida.
Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department") is an agency of the State of Florida. The Department is charged with the responsibility for, among other things, the administration of Chapter 370, Florida Statutes.
On or about September 27, 1995, Mr. Childers, was cited for alleged violations of Article X, Section 16(b)(2), Florida Constitution. In particular, Mr. Childers was charged with using shrimp trawl nets greater in size than 500 square feet in the nearshore and inshore waters (within three nautical miles of the shore) of the State of Florida.
On February 9, 1996, following a non-jury trial, the County Court for Franklin County, Florida, determined that Mr. Childers was guilty of a second degree misdemeanor as a result of the activities that gave rise to the September 27, 1995, citation.
Adjudication of guilt was withheld by the County Court.
Mr. Childers was required to pay $125.00 in court costs.
By letter dated July 5, 1996, the Department notified Mr. Childers that it intended to suspend his 1996/1997 License for a period of ninety days. The Department gave the following reason for its proposed action:
This suspension is based upon your failure to comply with Saltwater Fisheries statutes for a conviction of a violation of Section 16, Article X of the State Constitution. Specifically, this concerns your September 27, 1995 arrest and subsequent conviction of using a gill net in Florida waters.
The Department's decision to suspend Mr. Childers' License was predicated upon the following provision of
Section 370.092(8)(b), Florida Statutes (1995), which provided:
(b) In addition to being subject to any other penalties provided in this chapter, any violation of s. 16, Art. X of the State Constitution or any rules of the Marine Fisheries Commission which implement the gear prohibitions and restrictions specified therein shall be considered a major violation; and any person, firm, or corporation convicted of such violation shall be subject to the following additional penalties:
1. For a first major violation within a 7-year period, suspension of the saltwater products license for 90 days. [Emphasis added].
The Department informed Mr. Childers of his right to contest the proposed suspension of his License by requesting administrative proceedings pursuant to Section 120.57, Florida Statutes.
On July 11, 1996, Mr. Childers requested an informal hearing to contest the Department's proposed action.
Mr. Childers argued that the Department's proposed suspension of his License was inappropriate because he had not been "convicted" of any offense for which the Department could suspend his license.
On or about August 8, 1996, the office of the Department's General Counsel issued a Memorandum discussing the issue of whether Mr. Childers had been "convicted" within the meaning of Section 370.092(8)(b), Florida, Statutes (1995). General Counsel's office opined that the Florida Legislature's use of the word "convicted" in Section 370.092(8)(b), Florida Statutes (1995), was intended to mean:
any disposition by the court in a criminal proceeding, other than dismissal, acquittal, or entry of a finding of not guilty. "Conviction" includes a disposition based on a guilty or nolo contendere plea that incorporates adjudication withheld [sic] as part of the disposition or the charges.
On August 23, 1996, an informal administrative hearing was held by the Department. At the informal hearing,
Mr. Childers admitted that he had violated Article X, Section 16(b)(2), Florida Constitution. Mr. Childers argued, however, that no suspension of his license should be imposed because he had not been "convicted" of such violation.
On September 30, 1996, a Notice of Final Order was entered by the Department rejecting Mr. Childers' argument that he had not been "convicted" of any offense as required by Section
370.092(8)(b), Florida Statutes (1995), and suspending his License for ninety days.
In entering its Notice of Final Order, the Department gave the following rationale for rejecting Mr. Childers' assertion that he had not been "convicted" of any violation for which his License could be suspended under Section 370.092(8)(b), Florida Statutes (1995):
C. The withholding of adjudication of guilt fails to alter the clear and unequivocal sanctions imposed by Section 370.092(8)(b), Florida Statutes. Any person, firm or corporation "convicted" of violation Article X, Section 16(b)(1), Florida Constitution, shall be (emphasis added) subjected to additional administrative and civil penalties listed in Section 370.092(8)9b), Florida Statutes. The intended meaning of the term "convicted" used by the Legislature in Section 370.092(8)(b), Florida Statutes, is clear. In the context of 370.092(8)(b), Florida Statutes, the word "convicted" was selected by the Legislature to indicate a judicial determination of sanctionable behavior, not necessarily the final resolution of any and all criminal proceedings.
Mr. Childers appealed the Department's Notice of Final Order to the District Court of Appeal, First District (hereinafter referred to as the "First District Court").
On July 16, 1997, the First District Court entered an opinion reversing the Department's Notice of Final Order. Childers v. Department of Environmental Protection, 696 So. 2d 962 (Fla. 1st DCA 1997).
The First District Court concluded that Mr. Childers had not been "convicted" within the "unambiguous meaning," of
Section 370.092, Florida Statutes (1995).
On October 9, 1997, pursuant to the Mandate of the First District Court, the Department entered an Order adopting the decision of the First District Court and dismissing its complaint letter against Mr. Childers.
On October 30, 1997, Mr. Childers filed an Application for Attorney's Fees seeking an award pursuant to Section 57.111, Florida Statutes (1997).
At the time Mr. Childers was cited for the violations of Article X, Section 16(b)(2), Florida Constitution,
Section 370.092(8)(b), Florida Statutes, required a "conviction" for the Department to take action against a license. This provision, however, had been amended during the 1996 Legislative Session by substituting for the word "convicted" the phrase "receiving any judicial disposition other than acquittal or dismissal." Chapter 96-300, Laws of Florida 1996. This amendment to Section 370.092(8)(b), Florida Statutes, was not effective until January 1, 1997.
The First District described the following pertinent history concerning the amendment to Section 370.092(8)(b), Florida Statutes:
The Natural Resources Committee of the House of Representatives produced a Final Bill Analysis dated May 16, 1996. Under the heading "Substantive Analysis," it addressed the "Present Situation," reporting that, within months of the passage of the 1995 laws implementing the net ban, "F[lorida]M[arine]P[atrol] officers began to realize there were loopholes in the law." Fla.
HR Comm. on Nat. Res., CS for HB817 (1996) Final Staff Analysis (May 16, 1996)(on file with comm.) at 3. One of the "loopholes" identified was that "DEP has encountered certain circuit court judges who, more often than not, have adjudicated without guilt [sic] alleged net-ban violators." Id.
In the "Section-By-Section Analysis," the effect of the amendment proposed to section 370.092, Florida Statutes (1995) was described: "Imposes penalties on people . . . who have received any judicial disposition other than acquittal or dismissal, rather than only on those entities which have been convicted of violating the constitutional net ban." Id. At 6 (emphasis supplied). . . .
Childers at 965-966.
The foregoing legislative history and the amendment to Section 370.092(8)(b), Florida Statutes (1995), were available prior to the date that the Department first proposed to suspend Mr. Childers' License. The Department should have been aware of the foregoing legislative history at all times pertinent to this case.
In support of its actions in this matter, the Department has asserted that it had a reasonable basis in fact to suspend Mr. Childers' License because:
Mr. Childers admitted that he violated Article X, Section 16(b)(2), Florida Constitution;
The disposition sheet from the County Court indicated that the "verdict" was "guilty";
The General Counsel's Office of the Department had opined that the Department's action was appropriate; and
The action of the Legislature in amending Section 370.092, Florida Statutes, made the Legislature's intent clear that licenses be suspended even if adjudication is withheld.
The Department has asserted that it had a reasonable basis in law to take the action it took with regard to
Mr. Childers because:
The term "convicted" was not defined by Section 370.l092(8)(b), Florida Statutes (1995), any other provision in Chapter 370, Florida Statutes (1995), or the constitutional amendment it was intended to implement; and
Where definitions of "convicted" are provided, whether in other statutes, the Florida Rules of Criminal Procedure, or in Florida appellate court decisions, the definitions conflict. Therefore, the Department was justified in following one line of authority which supported its action.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Sections 57.111 and 120.57, Florida Statutes (1997).
Attorney's fees and costs have been sought by Mr. Childers in this matter pursuant to Section 57.111,
Florida Statutes (1997), the "Florida Equal Access to Justice Act."
The following legislative intent for enacting the Florida Equal Access to Justice Act is provided in Section 57.111(2), Florida Statutes:
(2) The Legislature finds that certain persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense of civil actions and administrative proceedings. Because of the greater resources of the state, the standard for an award of attorney's fees and costs against the state should be different from the standard for an award against a private litigant. The purpose of this section is to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in certain situations an award of attorney's fees and costs against the state.
In pertinent part, Section 57.111, Florida Statutes, provides for an award of attorney's fees and costs under the following circumstances:
(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. [Emphasis added].
There is no dispute in this proceeding that
Mr. Childers is a prevailing small business party. There is also no dispute that Mr. Childers prevailed in an administrative proceeding initiated by the Department. The only issue which the Department has contested is whether the Department's actions in suspending Mr. Childers' License were "substantially justified."
The terms "substantially justified" are defined in Section 57.111(3)(e), Florida Statutes, as follows:
(e) 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.
Although Mr. Childers has the ultimate burden of proving his entitlement to an award in this case, the Department has the burden of demonstrating that it was "substantially justified" in its actions against Mr. Childers. See Department of Health and Rehabilitative Services v. South Beach Pharmacy, Inc., 635 So. 2d 117 (Fla. 1st DCA 1994). In the South Beach Pharmacy, Inc., case, the court indicated the following concerning the burden of proof in actions for fees pursuant to Section 57.111, Florida Statutes:
"The Act is designed to discourage unreasonable governmental action, not to paralyze agencies doing the necessary and beneficial work of government." Rudloe v. Department of Environmental Regulation, 33 Fla.Supp.2d 203 (DOAH 1987). But, once a prevailing small business party proves that it qualifies as such under section 57.111, the agency that initiated the main or underlying proceeding has the burden
to show substantial justification or special circumstances, Department of Health and Rehabilitative Services v. S.G., 613 So.2d 1380, 1386-7 (Fla. 1st DCA 1993); Department of Professional Regulation, Div. of Real Estate v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989); Ray v. Department of Transportation, 9
F.A.L.R. 1537 (DOAH 1990); Gentele v. Department of Professional Regulation, 9 F.A.L.R. 310 (DOAH 1986), aff'd, 513 So.2d 672 (Fla. 1st DCA), in order to avoid liability for fees and costs.
The "facts" relied upon by the Department to support its decision do not form a reasonable basis for its actions. First, Section 370.092(8)(b), Florida Statutes (1995), does not provide for a suspension of an individual's license if the licensee admits he or she "committed" the offense. Nor does Section 370.092(8)(b), Florida Statutes (1995), provide that a license is to be suspended if a court indicates that a licensee was "guilty" of the offense. Section 370.092(8)(b),
Florida Statutes (1995), requires that the licensee must be "convicted" of the requisite offense. The question of whether a licensee has been "convicted" is a question of law.
Secondly, the fact that one part of the Department relied upon another part of the Department (General Counsel's Office) for legal advice is also not persuasive. Ultimately it must be concluded that, as a matter of law, the Department's interpretation of the word "convicted" in Section 370.092(8)(b), Florida Statutes (1995), was a reasonable conclusion of law. If it does not, the fact that legal advice was obtained within the Department does not matter.
Finally, the Department's reliance upon the Legislature's subsequent action in amending
Section 370.092(8)(b), Florida Statutes (1995), is misplaced. That action, based upon the Legislative history of the amendment, actually supports the conclusion that the Department's action was not reasonably based upon fact or law. At best the Legislative history suggests that the Legislature may have inadvertently used the term "convicted" in the first place. The history supports an argument that the Legislature did not intend that a person determined to have committed a violation of the net-ban provisions of the Florida Constitution not have his or her license suspended simply because adjudication was withheld. The Legislature recognized, however, that by using the term "convicted," it had created a "loophole" in the law. Therefore, the Legislature recognized that it was necessary that it amend the law by eliminating its use of the term "convicted" in order to ensure that only persons charged with a violation of the net- ban provisions of the Florida Constitution who received a judicial disposition of acquittal or dismissal did not have their licenses suspended.
Based upon the Legislative history, it appears that the Department was aware of the "loophole" when it suspended
Mr. Childers' license. The Department was also aware that the Legislature had deemed it necessary to amend
Section 370.092(8)(b), Florida Statutes (1995), to eliminate the "loophole."
The "law" relied upon the Department to support its decision also does not form a reasonable basis for its actions. In light of the fact that no definition of "convicted" was provided in Chapter 370, Florida Statutes, or the Florida Constitution, the Department was correct in looking to other authorities. The Department's suggestion that there are a number of definitions of the term, some of which are consistent with the Department's interpretation, is correct. The definitions relied upon the Department, however, are used in a context distinguishable from the context of this matter.
This matter involves the application of a disciplinary statute against an individual's saltwater products license, a License which Mr. Childers must have in order to work at his chosen profession of commercial fishing. It is in this context of the use of the term "convicted" that the Department should have looked for guidance.
Florida has long recognized that any administrative action to suspend or revoke a business or professional license is penal in nature. Ferris v. Turlington, 510 So. 2d 292
(Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995). Florida has also long recognized that statutes authorizing such action must, therefore, be strictly construed against the state. Werner v. Department of Insurance and
Treasurer, 689 So. 2d 1211 (Fla. 1st DCA 1997); and Breesman v. Department of Professional Regulation, 567 So. 2d 469 (Fla. 1st DCA 1990).
Strictly construing the use of the term "conviction" in Section 370.092(8)(b), Florida Statutes (1995), against the state, the Department should have followed the line of cases which define the term "conviction" to require the court's judgment of guilt. See Molinari v. Department of Business and Professional Regulation, 688 So. 2d 388 (Fla. 4th DCA 1997).
As the First District Court opined, "Mr. Childers was not 'convicted of violating the constitutional net ban,' within the unambiguous meaning of the statute before it was amended." [Emphasis added].
Based upon the foregoing, it is concluded that the Department's administrative action against Mr. Childers in this matter was not "substantially justified" as those terms are used in Section 57.111, Florida Statutes. Mr. Childers is, therefore, entitled to an award of attorney's fees and costs.
ORDERED that the Application for Attorney's Fees is GRANTED. Within the time specified in Section 57.111(5), Florida Statutes, the Department of Environmental Protection shall pay attorney's fees of $7,237.50 plus a reasonable attorney's fee for this
proceeding, and costs of $437.26 plus any costs incurred in this proceeding to Charles M. Childers.
DONE AND ORDERED this 24th day of March, 1998, in Tallahassee, Leon County, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1998.
Andrew J. Baumann, Assistant General Counsel Department of Environmental Protection
3900 Commonwealth Boulevard Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
F. Perry Odom, Esquire
Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes.
