STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRAMMEL FOWLER, )

)

Petitioner, )

)

vs. ) Case No. 00-2795F

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

FINAL ORDER

This cause comes before the undersigned on a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes, filed by the Florida Department of Health, Okaloosa County Health Department (Department). This matter concerns a petition for assessment of attorneys' fees and costs pursuant to Section 57.111, Florida Statutes, filed July 7, 2000. The underlying cause in this matter was heard on August 26, 1999, and a Recommended Order entered on January 19, 2000. The Department entered its Final Order adopting the Recommended Order on June 2, 2000. In the Recommended Order and the Final Order it was concluded that the Petitioner, Trammel Fowler, had installed a septic tank system without a permit but because of the circumstances found in the Recommended Order the penalty should be limited to a "letter of warning." The Department initially prosecuted charges against Fowler on the basis that he had

installed a septic system without a permit; installed a septic system without adequate drainfield; and disconnected an existing, permitted septic system without a permit, seeking to impose administrative fines. The undersigned Judge found that Fowler had installed a septic tank system without a permit but had not been responsible for disconnecting the older system, which was done by a different party, or for the inadequate drainfield. In the underlying Recommended Order the Judge found the following pertinent facts:

1. The Department of Health was aware of the repairs made by Petitioner Fowler and, through Mr. Brown, inspected them and approved it.

2. The alleged un-permitted repair work was actually made with knowledge of the Department through Mr. Brown, and his approval of the repair work.

3. The Petitioner Mr. Fowler had no part in the unreported and unapproved disconnection of the original septic system which was done by an uninvolved plumber.

4. No monetary harm was caused to Fowler's customer.

5. The Department failed to conduct an investigation into the original allegations concerning the abandonment or disconnection of the system prior to filing the charges against Mr. Fowler.

6. The initial citation for violation and the amended citation charged Fowler with three separate violations as well as charging him with causing the septic system to be improperly disconnected and abandoned.

Pursuant to Section 57.111(3)(c), Florida Statutes, a small business party is a "prevailing small business party" when: (1) a

final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired; or (2) a settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or (3) a state agency has sought a voluntary dismissal of its complaint.

The two issues in this proceeding concern whether Fowler is a "prevailing small business party" and whether or not the Respondent Agency was substantially justified in initiating proceedings against Fowler.

There is no dispute that Fowler is a small business party.

The issue is whether he is a prevailing small business party. On the majority of issues in the underlying case, the Administrative Law Judge, and the Department by its Final Order, found that the Petitioner, Mr. Fowler, was not guilty of the charges. It was only on the charge concerning installing the septic tank and drainfield without a permit that he was found to have committed a violation. The penalty was a de minimus "letter of warning" because of the installation of the tank and drainfield with what the Judge found, in his Recommended Order, to be the inspection and approval of it by Mr. Brown of the Department. Thus, the Petitioner prevailed on most of the action against him, but not

on one of the charges. It is thus a fairly close question concerning whether he might be found to be a prevailing party. However, assuming arguendo that he is a prevailing party within the bounds of the Department's final order, the claim for attorneys' fees must fail because the Agency has established substantial justification for its underlying action.

Pursuant to the above statute, the "Florida Equal Access to Justice Act," a government agency will not be held liable for attorney's fees even if it did not prevail in the underlying action provided the agency's action was substantially justified by having a "reasonable basis in law and fact" when the action was initiated. This proceeding was initiated after a homeowner complaint concerning a septic tank failure, which was subsequently investigated by the Department. That investigation revealed the existence of an inadequately sized drainfield, a septic tank and connecting sewer line which was not permitted on the initial permit for the original system, and disconnection of the previously permitted drainfield and septic tank without a permit. Based upon this discovery and the representation by the original homeowner the Petitioner had installed the un-permitted system, and after consultation with investigating personnel, the Department issued a citation. It charged the subject violations of Rule 64E-6.022(1)(b)2, Florida Administrative Code, concerning installation without a permit; and, Rule 64E-6.022(1)(p), Florida

Administrative Code, concerning repair of a system in violation of standards, "inadequate drainfield," and Rule 64E-6.022(1)(b), Florida Administrative Code, concerning modification of an existing system without a permit (disconnection of original system), all related to installation of the second tank and drainfield.

It is true that the undersigned Judge found that Mr. Brown, a Department Inspector, had inspected the system and approved it for the installer, the Petitioner. Thus it was found that through Mr. Brown at least derivatively, the Agency had knowledge of and approved the installation of the second system for purposes of the question of guilt and penalty concerning certain of the charges in the earlier underlying proceeding. However, the findings of fact in the underlying proceeding and the evidence upon which those facts were based, as well as the Amended Affidavit of Mr. Sims in this fee proceeding, when considered in their totality, show that, although the investigation may have been flawed (as evidenced by the fact found by the Judge in the Recommended Order that the Department failed to investigate the disconnection and abandonment itself) that overall a good faith investigation was conducted. It was based upon a reasonable interpretation of law and the facts as it "then" knew them at the time it was engaged in by the Department.

Although Mr. Brown was found, after consideration of all the testimony and evidence and weighing of witness credibility, to have inspected and approved the system for which no permit was ever obtained, the Amended Affidavit of Mr. Sims, supplied in support of the Motion for Summary Final Order in the instant proceeding shows that in April of 1998, Mr. Sims had a conversation with Mr. Brown in which Mr. Brown alluded to him that he had not inspected and approved the system. Thus, even if what Mr. Brown told Mr. Sims in April of 1998, before the original underlying proceeding was filed, was untrue, Mr. Sims and the other Department personnel who investigated and made determinations regarding the charges filed were reasonably justified, based in part upon Brown's representations to Mr.

Sims, in bringing the underlying action.

While certain of the information conveyed in Mr. Sims Affidavit and Amended Affidavit may be "hearsay within hearsay," as raised in the Petitioner's Motion to Strike, certain parts of the Affidavit support the fact that a reasonable, good faith investigation was done, even if partially flawed in the above- found respect. More pointedly, the statement of Mr. Brown to Mr. Sims reported in the Amended Affidavit in order to have its effect in supporting substantial justification, together with the other information the Department had in its possession supporting filing of the action, need not be the subject of an exception to

the hearsay rule. It need not be offered for the truth of Mr. Brown's statement but rather the fact that he made it as a "verbal act" and that the Department relied on it as part of its justification for the filing of the action against Mr. Fowler, which it did.

In summary, while the Department might have made a more thorough and accurate investigation, the investigation it did make showed that it had a reasonable basis in law and fact to initiate the action against Mr. Fowler at the time it was initiated. Thus the Agency has met its burden of showing substantial justification for its action. Accordingly, the Motion for Summary Final Order is hereby granted and the Petition for Attorneys' Fees is dismissed.

DONE AND ORDERED this 15th day of December, 2000, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2000.

COPIES FURNISHED:

Matthew D. Bordelon, Esquire Galloway, Johnson, Tompkins, Burr

& Smith, P.L.C.

55 Baybridge Drive

Gulf Breeze, Florida 32561

Rodney M. Johnson, Esquire Department of Health

1295 West Fairfield Drive Pensacola, Florida 32501

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

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 coy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or in 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: 00-002795F

Orders for Case No: 00-002795F