STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAFAEL R. PALACIOS, )
)
Petitioner, )
)
vs. ) Case No. 99-4163F
)
DEPARTMENT OF BUSINESS AND )
PROFESSIONAL REGULATION, )
)
Respondent. )
) STEVEN L. JOHNS, )
)
Petitioner, )
)
vs. ) Case No. 99-4164F
)
DEPARTMENT OF BUSINESS AND )
PROFESSIONAL REGULATION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a formal hearing was held in these cases on July 11 and 12, 2000, at Miami, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: E. Renee Alsobrook, Esquire
Post Office Box 37094 Tallahassee, Florida 32315-7094
For Respondent: Theodore R. Gay, Esquire
Department of Business and Professional Regulation
401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128
STATEMENT OF THE ISSUES
Whether pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department).
Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
PRELIMINARY STATEMENT
On October 1, 1999, Petitioners filed with the Division of Administrative Hearings separate petitions for award of attorney's fees and costs. The petition filed by Palacios alleged, pursuant to Sections 57.105, 57.111, and 120.595, Florida Statutes, entitlement to an award for fees and costs incurred in conjunction with an administrative proceeding, Department of Business and Professional Regulation v. Rafael R. Palacios, DOAH Case No. 99-0674. The petition filed by Johns alleged, pursuant to Sections 57.105 and 120.595, Florida Statutes, entitlement to an award for fees and costs incurred in conjunction with an administrative proceeding, Department of Business and Professional Regulation v. Steven L. Johns, DOAH
Case No. 99-0674. On November 2, 1999, Johns filed a supplemental petition for attorney's fees and costs; however, during the final hearing the supplemental petition was withdrawn. By order dated April 18, 2000, the petitions were consolidated for final hearing.
By Order on Motion to Dismiss dated March 28, 2000, the claim of Johns for attorney's fees and costs based on Section 57.105, Florida Statutes, was dismissed. In the Petitioners' proposed final order, Palacios dismissed his plea for relief pursuant to Section 57.105, Florida Statutes.
At the final hearing, each Petitioner testified in his own behalf, and counsel for Petitioner, Renee Alsobrook, testified concerning the amount of attorney's fees. Petitioners' Exhibits 1-17 were admitted in evidence.
At the final hearing Respondent called the following witnesses: Paul Berna, Diane Perera, Jose Mitrani, and Charles Danger. Respondent's Exhibits 1-26 were admitted in evidence.
Official recognition was taken of Chapters 120 and 489, Florida Statutes, and Section 57.111, Florida Statutes.
The parties agreed to file their proposed final orders within 30 days of the filing of the Transcript, which was filed on August 17, 2000. The parties filed their proposed final orders on September 18, 2000.
By order dated October 13, 2000, the parties were requested to file memoranda on the issue of whether the Division of Administrative Hearings has jurisdiction to hear a request for attorney's fees in a Section 120.595(1), Florida Statutes, proceeding when no motion for attorney's fees was filed in the underlying administrative proceeding.
FINDINGS OF FACT
Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to
R. Palacios & Company.
Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than
$2,000,000.
The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been
pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time.
In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting.
Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County.
After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed.
The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building
Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County.
A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits.
Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation.
Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project.
The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns,
Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello.
By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits.
In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code.
The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida
Building Code provisions, including portions of Section 301, was erroneous.
On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications.
Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to
1998. Respondent's Exhibit 13 was the investigative file for the Johns' case.
The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project.
On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and
Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit.
Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case.
Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes.
The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes.
Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority
to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes.
On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs.
Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes.
The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative
complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes.
The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998.
On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No.
97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin.
On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language:
The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations.
On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999.
Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide:
A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s.
553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . .
On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance.
On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance.
The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues.
On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings.
On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 57.111, 120.57(1), and 120.595(1), Florida Statutes.
Petitioners seek attorney's fees pursuant to Section 120.595(1), Florida Statutes, which provides:
Challenges to Agency Action pursuant to Section 120.57(1).--
The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees and costs in administrative proceedings.
The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only when the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.
In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection and s. 120.569(2)(e). In making such a determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
In any proceeding in which the
administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees.
For the purpose of this subsection:
'Improper purpose' means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.
'Costs' has the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.
'Nonprevailing adverse party' means a party that has failed to have substantially changed the outcome of the proposed or final agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial modification or condition intended to resolve the matters raised in a party's petition, it shall be determined that the party having raised the issue addressed is not a prevailing adverse party. The recommended order shall state
whether the change is substantial for purposes of this subsection. In no event shall the term 'nonprevailing party' or 'prevailing party' be deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.
An administrative law judge does not have authority to enter a final order awarding attorney's fees and costs pursuant to Section 120.595(1), Florida Statutes, which requires that the award of attorney's fees be made in the final order of a Section 120.57(1) proceeding. The final orders in the Section 120.57(1) proceedings against Johns and Palacios were entered by the Department on August 3, 1999, and did not award attorney's fees and costs.
Section 120.595(1)(c), Florida Statutes, provides that upon motion in a Section 120.57(1) proceeding, the administrative law judge shall determine whether a party participated for an improper purpose. Section 120.595(1)(d), Florida Statutes, requires a determination of whether a party participated in the proceeding for an improper purpose be made in the recommended order. In the underlying administrative proceedings in the instant cases, no motion was made for attorney's fees prior to the closing of the files of the Division of Administrative Hearings or prior to the issuance of the final orders.
Petitioners argue that in the underlying administrative proceedings, they filed motions to dismiss claiming that the department acted in an improper manner; therefore, the
administrative law judge has jurisdiction to hear the claim for attorney's fees. The Motion to Dismiss did not request attorney's fees and costs and was not made pursuant to Section 120.595(1), Florida Statutes. In Stockman v. Downs, 573 So. 2d 835, 837, 838 (Fla. 1991), the Florida Supreme Court stated:
Our review of the case law leads us to the conclusion that the better view is the one expressed in our earlier cases--a claim for attorney's fees, whether based on statute or contract, must be pled. The fundamental concern is one of notice. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. 40 Fla. Jur 2d Pleadings Section 2 (1982). Raising entitlement to attorney's fees only after judgement fails to serve either of these objectives. The existence or nonexistence of a motion for attorney's fees may play an important role in decisions affecting a case. For example, the potential that one may be required to pay an opposing party's attorney's fees may often be determinative in a decision on whether to pursue a claim, dismiss it, or settle. A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him. Accordingly, we hold that a claim for attorney's fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim.
Thus, Petitioners waived any claim they may have had pursuant to attorney's fees and costs pursuant to Section 120.595(1), Florida Statutes, by not requesting attorney's fees and costs in the underlying Section 120.57(1) proceedings prior to the issuance of the final orders. See Ernest Sellars v. Broward County School Board, DOAH Case No. 97-3540F (September 25, 1997); Richard Hall
v. Department of Juvenile Justice, DOAH Case No. 97-0175F (July 3, 1997).
Section 120.595(1), Florida Statutes, requires that the administrative law judge make a determination that the nonprevailing adverse party has participated in the proceeding for an improper purpose. "Nonprevailing adverse party" is defined to be a party that has failed to substantially change the outcome of the agency's proposed action. The Department by definition cannot be a nonprevailing adverse party. It is the agency that is proposing to take action, not a party that is trying to change the proposed action. See Sellars v. Broward County School Board and Hall v. Department of Juvenile Justice, supra. If Petitioners had filed a timely motion for attorney's fees and costs, they could not have recovered fees and costs against the Department pursuant to Section 120.595(1), Florida Statutes, because the Department is not a nonprevailing adverse party.
Petitioner Palacios seeks attorney's fees and costs pursuant to Section 57.111(4)(a), Florida Statutes, which provides:
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.
A small business party is defined in Section 57.111(3)(d)1.b., Florida Statutes, as:
A partnership or corporation, including a professional practice, which has its principal office in this state and 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;
Palacios was the prevailing party in the underlying administrative proceeding in which the Department filed an administrative Complaint against him. Palacios is small business party within the definition of Section 57.111(3)(d)1.b., Florida Statutes. The issue becomes whether the Department's actions were substantially justified or whether special circumstances exist which would make the award unjust.
A proceeding is substantially justified if "it had a reasonable basis in fact and law at the time it was initiated by a state agency." Section 57.111(3)(e), Florida Statutes. The relevant time to determine whether the Department was substantially justified in this case would be the probable cause panel proceedings in December 1998. Probable cause would exist "if reasonably prudent persons in the conduct of their affairs would think that a violation had taken place." Kasha v. Department of Legal Affairs, 375 So. 2d 43, 44 (Fla. 3rd DCA 1979). "To sustain a probable cause determination there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred."
Kibler v. Department of Professional Regulation, 418 So. 2d, 1081, 1084 (Fla. 4th DCA 1982).
Petitioners claim that there was no substantial justification to find probable cause because Ms. Perera participated in the meetings of the PCPs. Section 455.21(2), Florida Statutes, provides that "no attorney employed or used by the department shall prosecute and provide legal services to the board with respect to the same matter." In the instant case, the PCP panels were provided legal services by assistant attorneys general who were present during the meetings and not by
Ms. Perera. Her presence at the PCP meeting was strictly to prosecute and not to provide legal services to the PCPs.
The Department was substantially justified in filing the Administrative Complaint against Palacios. Section 489.129(1)(p), Florida Statutes (1995), provides for disciplinary action against a contractor who proceeds on a project without the applicable local building permits. The statute does not require that the acts be intentional. Palacios did proceed on the Port of Miami project without a written building permit issued by the Building Department. At the time that the Administrative Complaint was filed, the defense of reliance on the actions of the building official had not been codified. Thus, there was a basis in law and fact for the filing of the administrative complaint.
Palacios is not entitled to attorney's fees pursuant to Section 57.111, Florida Statues.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED the claims of Petitioners for attorney's fees and costs pursuant Section 120.595(1), Florida Statutes, are dismissed, and Petitioner Palacios' claim for attorney's fees and costs pursuant to Section 120.57.111, Florida Statutes, is denied.
DONE AND ORDERED this 20th day of November, 2000, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2000.
ENDNOTE
An administrative complaint was issued by Deputy Secretary Osborne on July 2, 1998. However, the complaint was never prosecuted and Palacios was never advised of the existence of the administrative complaint; thus, no attorney's fees could have been incurred as a result of the July 2, 1998, administrative complaint.
COPIES FURNISHED:
E. Renee Alsobrook, Esquire Post Office Box 37094
Tallahassee, Florida 32315-7094
Theordore R. Gay, Esquire Department of Business and
Professional Regulation
401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128
Barbara D. Auger, General Counsel Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Cynthia A. Henderson, Secretary Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
An administrative complaint was issued by Deputy Secretary Osborne on July 2, 1998 However, the complaint was never prosecuted and Palacios was never advised of the existence of the administrative complaint; thus, no attorney's fees could have been incurred as a result of the July 2, 1998, administrative complaint.
| Issue Date | Proceedings |
|---|---|
| Jan. 08, 2001 | Letter to Theodore Gay from A. Cole In re: Returning respondent`s exhibit 5, as per Mr. Gay`s request filed. |
| Nov. 20, 2000 | Final Order issued (hearing held July 11 and 12, 2000). CASE CLOSED. |
| Oct. 23, 2000 | Respondent`s Memorandum of Law Concerning the Jurisdiction of the Division of Administrative Hearings Pursuant to Section 120.595(1), Florida Statutes (filed via facsimile). |
| Oct. 23, 2000 | (Partial Fax Received from T. Gay) Respondent`s Memorandum of Law Concerning the Jurisdiction of DOAH (filed via facsimile). |
| Oct. 23, 2000 | Memorandum of Law filed by R. Alsobrook. |
| Oct. 13, 2000 | Order issued. (the parties are given leave to file memoranda addressing jurisdictional issue before 10/23/2000) |
| Sep. 18, 2000 | Petitioner`s Proposed Final Order filed. |
| Sep. 18, 2000 | Respondent`s Proposed Final Order filed. |
| Aug. 17, 2000 | Transcript (Volume 1 and 2) (Official Court Reporting) filed. |
| Jul. 17, 2000 | Notice of Filing Petitioner`s Exhibits; Exhibits filed. |
| Jul. 14, 2000 | Ltr. to Judge S. Kirkland from T. Gay In re: Original Exhibits received filed. |
| Jul. 11, 2000 | CASE STATUS: Hearing Held; see case file for applicable time frames. |
| Jul. 07, 2000 | Petitioner`s Responses to Respondent`s First Request for Admissions (filed via facsimile) |
| Jul. 07, 2000 | Petitioner`s Response to Respondent`s First Request for Admissions; Notice of Filing Petitioner`s Responses to Respondent`s First Request for Admissions (filed via facsimile) |
| Jul. 03, 2000 | Petitioner`s Notice of Filing Response to Respondent`s Request for Production of Documents (filed via facsimile) |
| Jun. 29, 2000 | Notice of Taking Deposition-S. Johns, R. Palacios (filed via facsimile) |
| Jun. 13, 2000 | Notice of Taking Deposition of Expert for Perpetuation of Testimony (filed via facsimile). |
| Jun. 02, 2000 | Notice of Canceling Deposition (Petitioner`s filed via facsimile) filed. |
| Jun. 01, 2000 | Respondent`s Request for Production of Documents (filed via facsimile). |
| Jun. 01, 2000 | Ltr. to E. Alsobrook from T. Gay RE: deadline for exhibits, no exhibits attached (filed via facsimile). |
| May 30, 2000 | (Petitioner) Notice of Taking Deposition of Expert for Perpetuation of Testimony (filed via facsimile). |
| May 23, 2000 | Order sent out. (motion to establish sanctions is denied, parties shall exchange witness lists and copies of exhibits by June 1, 2000) |
| May 16, 2000 | Respondent`s Notice of Serving Copies of Exhibits (filed via facsimile). |
| May 15, 2000 | Respondent`s Response to Petitioners` May 12, 2000 Motion for Exclusion of Witnesses and Exhibits (filed via facsimile). |
| May 12, 2000 | Petitioner`s Motion for Exclusion of Witnesses and Exhibits (filed via facsimile). |
| May 03, 2000 | Order sent out. |
| May 03, 2000 | Notice of Hearing (hearing set for July and 12, 2000; 9:00 a.m.; Miami, Fl.) sent out. |
| Apr. 27, 2000 | Notice of Hearing sent out. (hearing set for July 11 and 12, 2000; 9:00 a.m.; Miami, FL) |
| Apr. 26, 2000 | Petitioner`s Response to Order (filed via facsimile). |
| Apr. 25, 2000 | Respondent`s Response to April 6, 2000 Orders Granting Continuing (filed via facsimile). |
| Apr. 18, 2000 | Order of Consolidation sent out. (Consolidated cases are: 99-004163F, 99-004164F) |
| Apr. 06, 2000 | Order Granting Continuance sent out. (Parties to advise status by April 25, 2000.) |
| Apr. 05, 2000 | Respondent`s Motion to Consolidate (cases to be consolidated 99-4163F, 99-4164F) (filed via facsimile). |
| Apr. 05, 2000 | (T. Gay) Signed Signature Page (Respondent`s Unilateral Prehearing Statement) (filed via facsimile). |
| Apr. 05, 2000 | Respondent`s Unilateral Prehearing Statement (unsigned) (filed via facsimile). |
| Apr. 05, 2000 | Petitioner`s Response to Respondent`s Motion for Continuance and Respondent`s Supplemental Motion for Continuance (filed via facsimile). |
| Apr. 05, 2000 | Respondent`s Motion for Continuance (unsigned); Respondent`s Supplemental Motion for Continuance; Prehearing Stipulation (filed via facsimile). |
| Mar. 28, 2000 | Order Denying Motion for Protective Order sent out. (respondent shall respond to petitioner`s second request for production of documents, respondent shall respond to petitioner`s second interrogatories on or before 4/4/2000) |
| Mar. 28, 2000 | Order on Motion to Dismiss sent out. (motion to dismiss as to section 57.111 is denied; motion to dismiss as to section 57.105 is granted, motion to dismiss as to section 120.595 is denied, petitioner`s motion to strike is denied) |
| Mar. 28, 2000 | Order on Respondent`s Motion to Compel Response to First Interrogatories sent out. (motion is denied) |
| Mar. 28, 2000 | Order on Respondent`s Motion to Compel Production of Documents sent out. (motion is denied) |
| Mar. 03, 2000 | Notice of Third Service of Discovery (Petitioner) (filed via facsimile). |
| Feb. 28, 2000 | Petitioner`s Notice of Serving Petitioner`s Response to Respondent`s Second Interrogatories to Petitioner (filed via facsimile). |
| Feb. 14, 2000 | Petitioner`s Response to Respondent`s Motion to Compel a Response to Respondent`s First Interrogatories to Petitioner (filed via facsimile). |
| Feb. 14, 2000 | Petitioner`s Response to Respondent`s Motion to Compel Production of Documents (filed via facsimile). |
| Feb. 08, 2000 | Petitioner`s Notice of Receipt of Respondent`s Second Interrogatories to Petitioner (filed via facsimile). |
| Feb. 08, 2000 | Petitioner`s Response to Respondent`s Motion for Protective Order and for Sanctions (filed via facsimile). |
| Jan. 31, 2000 | Respondent`s Notice of Propounding Respondent`s Second Interrogatories to Petitioner (filed via facsimile). |
| Jan. 31, 2000 | Respondent`s Motion to Compel Production of Documents (filed via facsimile). |
| Jan. 31, 2000 | Respondent`s Motion for Protective Order and for Sanctions (filed via facsimile). |
| Dec. 21, 1999 | Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for April 11, 2000; 9:00 a.m.; Miami, FL) |
| Dec. 20, 1999 | Petitioner`s Notice of Serving Responses to Respondent`s First Request for Production of Documents (filed via facsimile). |
| Dec. 20, 1999 | Petitioner`s Notice of Serving Responses to Respondent`s First Interrogatories to Petitioner (filed via facsimile). |
| Dec. 20, 1999 | Petitioner`s Motion to Continue Hearing (filed via facsimile). |
| Dec. 14, 1999 | (E. Alsobrook) Notice of Receipt of Discovery filed. |
| Dec. 10, 1999 | (Petitioner) Notice of Second Service of Discovery (filed via facsimile). |
| Nov. 23, 1999 | Respondent`s Notice of Propounding Interrogatories to Petitioner (filed via facsimile). |
| Nov. 19, 1999 | (Petitioner) Notice of Service of Discovery filed. |
| Nov. 18, 1999 | Petitioner`s Motion to Strike Respondent`s Reply to Petitioner`s Response to Respondent`s Motion to Dismiss Petition for Attorney`s Fees and Cost and Petitioner`s Motion to Strike Respondent`s Supplemental Motion to Dismiss (filed via facsimile). |
| Nov. 18, 1999 | (Petitioner) Notice of Unavailability filed. |
| Nov. 10, 1999 | Respondent`s Response to Petitioner`s Supplemental Petition for Attorney`s Fees and Costs (filed via facsimile). |
| Nov. 10, 1999 | Respondent`s Reply to Petitioner`s Response to Respondent`s Motion to Dismiss Petition for Attorney`s Fees and Costs and Respondent`s Supplemental Motion to Dismiss (filed via facsimile). |
| Nov. 02, 1999 | Petitioner`s Supplement Petition for Attorney`s Fees and Cost (filed via facsimile). |
| Nov. 02, 1999 | Petitioner`s Response to Respondent`s Motion to Dismiss Petition for Attorney`s Fees and Cost (filed via facsimile). |
| Oct. 21, 1999 | Order of Pre-hearing Instructions sent out. |
| Oct. 21, 1999 | Notice of Hearing sent out. (hearing set for January 14, 2000; 9:00 a.m.; Miami, FL) |
| Oct. 21, 1999 | Respondent`s Motion to Dismiss; Answer to Petition for Award of Attorney`s Fees and Costs; Administrative Complaint (filed via facsimile). |
| Oct. 18, 1999 | Notice of Appearance (Diane Snell Perera) (filed via facsimile). |
| Oct. 08, 1999 | Initial Order issued. |
| Oct. 01, 1999 | Petition for Award of Attorney`s Fees and Costs (w/exhibits 1-3) filed. (Note: Prior DOAH Case No. 99-0674) |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 20, 2000 | DOAH Final Order | No fees against an agency under Section 120.595, and request for fees not timely when made after final order entered. |
