STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE POOL PEOPLE, INC., )
)
Petitioner, )
)
vs. ) Case No. 07-1531F
) FLORIDA ENGINEERS MANAGEMENT ) CORPORATION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on May 24, 2007, in Tallahassee, Florida.
APPEARANCES
For Petitioner: William R. Clayton, Esquire
Jerold I. Budney, Esquire Greenberg Traurig, P. A.
401 East Las Olas Boulevard, Suite 2000 Fort Lauderdale, Florida 33301
For Respondent: Patrick Creehan, Esquire
Florida Engineers Management Corporation 2507 Calloway Road, Suite 200
Tallahassee, Florida 32303-5267
STATEMENT OF THE ISSUE
Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes?
PRELIMINARY STATEMENT
On April 2, 2007, Petitioner filed a petition requesting that it be awarded, pursuant to Section 57.111, Florida Statutes, "attorneys' fees and costs incurred in Florida Engineers Management Corporation v. The Pool People, Inc., DOAH Case No. 05-0382." On April 24, 2007, Respondent filed a response to the petition. On May 3, 2007, the parties filed a motion requesting that the instant case be consolidated with DOAH Case No. 07-1532F. The motion was granted by order issued May 4, 2007. The final hearing in the consolidated cases was scheduled for May 24, 2007.
On May 17, 2007, the parties in the instant case and in DOAH Case No. 07-1532F filed a Joint Prehearing Stipulation, which contained extensive stipulations of fact and law relating to both cases.
On May 22, 2007, Respondent filed a Motion to Dismiss Petition for Administrative Hearing in the instant case on the ground that Petitioner does not qualify as a "small business party," within the meaning of Section 57.111, Florida Statutes, because it is undisputed that "[a]t the time the Pool People Prosecution was initiated by a state agency through the filing
of an administrative complaint in December 2004, Pool People had more than 25 employees."
At the commencement of the final hearing on May 24, 2007, the parties announced that a settlement had been reached in DOAH Case No. 07-1532F. In light of this announcement, the undersigned vacated his May 4, 2007, order consolidating the instant case with DOAH Case No. 07-1532F, and only the instant case was heard on May 24, 2007. Petitioner and Respondent indicated that, following the hearing, they would file a Revised Prehearing Stipulation containing information pertinent only to the instant case.
Counsel for Petitioner requested the "opportunity to brief [the issue raised in Respondent's Motion to Dismiss] in writing," and suggested that its proposed final order would be an appropriate vehicle for it to present its written response to the motion. The undersigned granted this request, and he indicated that he would address the issue raised in Respondent's Motion to Dismiss in his final order, after the parties had had the opportunity to present further argument on the issue in their proposed final orders.
A total of 9 exhibits (Petitioner's Exhibits 1 through 9) were received into evidence at the hearing.2 No live testimony was presented.
At the close of the evidentiary portion of the hearing on May 24, 2007, the undersigned established a deadline (21 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed final orders.
On May 30, 2007, Petitioner and Respondent filed their promised Revised Joint Prehearing Stipulation.
The Revised Joint Prehearing Stipulation described the "[n]ature of the [instant] controversy" as follows:
In this proceeding under Section 57.111, Florida Statutes, Pool People is seeking an award of attorneys' fees and costs incurred in Florida Engineers Management Corporation v. The Pool People, Inc., DOAH Case No. 05- []0382 ("Pool People Prosecution"). In May 2006, the Pool People Prosecution was consolidated with the Board's prosecution of Ming Huang, P.E. ("Huang") in Florida Engineers Management Corporation v. Ming Huang, P.E., DOAH Case No. 06-1581P[L]
("Huang Prosecution"), which were then tried together in October 2006 (collectively, the "Underlying Proceedings"). Huang has filed a separate petition under Section 57.111, Florida Statutes, to recover attorneys’ fees and costs incurred in the Huang Prosecution ("Huang Fee Petition").
Although these two attorneys' fees proceedings under section 57.111, Florida Statutes, were initially consolidated based upon a joint request of the parties, the parties have announced a settlement of the Huang Fee Petition and have jointly requested the Court to now sever the Huang Fee Petition from this proceeding.
The parties stated their respective positions as follows in the Revised Joint Prehearing Stipulation:
Petitioner's position
There are really only two disputed issues in this matter. The first is whether or not the Board can prove its actions were "substantially justified" at the time it initiated its prosecution of Pool People.
Pool People's petition for an award of attorneys' fees and costs in this proceeding, which is incorporated herein by reference, explains why the Board cannot sustain that burden of proof.
The only other disputed issue is whether Pool People is a "small business party" as defined in s. 57.111(3)(d)1b, F.S. The parties do not dispute (i) Pool People is a Florida corporation which has had its principal office in Florida at all material times, (ii) at the time the action was initiated Pool People had "a net worth of not more than $2 million," and (iii) at the time the action was initiated Pool People did not have "not more than 25 employees." However, the Board insists that such a Florida corporation must have both "not more than 25 employees" and also "a net worth of not more than $2 million" to qualify under that definition. Pool People relies on black letter axioms of statutory interpretation in asserting that the Florida legislature's employment of the disjunctive word "or" in that definition results in a corporation qualifying as a small business party if it has "not more than 25 employees" or "a net worth of not more than $2 million," with either alternative prong -- not necessarily both -- satisfying that definitional test.
Accordingly, the parties have stipulated that if Pool People is found to be a "small business party," and if the Board does not
prove its actions against Pool People were "substantially justified," then Pool People would be entitled to recover $50,000 in attorneys' fees and costs in this action (which is the maximum allowed under s.
57.111(4)(d)2 for the action initiated against Pool People).
Respondent's position
Respondent contends that Petitioner Pool People is not entitled to attorney's fees and costs under s. 57.111, F.S. because:
Pool People is not a "small business party" within the meaning of s. 57.111, F.S.; and (2) Respondent’s actions were substantially justified.
The Revised Joint Prehearing Stipulation contained the following factual stipulations relating to the "parties of th[e] [instant] proceeding":
Pool People is a Florida corporation which at all material times has been in the business of building swimming pools for commercial and residential customers, and qualified to construct swimming pools under Chapter 489, Florida Statutes, through a qualifying agent.
Pool People does not have, and has never had, a Certificate of Authorization as defined in s. 471.005(3), F.S. Pool People asserts it has never been required by applicable law to have such a Certificate of Authorization.
Pool People is, and at the time the Pool People Prosecution was initiated by a state agency through the filing of an administrative complaint was, a Florida corporation with its principal office in Florida.
At the time the Pool People Prosecution was initiated by a state agency through the filing of an administrative complaint in December 2004, Pool People's net worth was not more than $2 million.
At the time the Pool People Prosecution was initiated by a state agency through the filing of an administrative complaint in December 2004, Pool People had more than 25 employees.
The Revised Joint Prehearing Stipulation contained the following factual stipulations relating to the "[t]he Board’s charges against Pool People":
On March 24, 2003, a former employee of Pool People who had sued the company for wrongful termination filed a complaint with the Board ("Former Employee Complaint"). The former employee alleged that when she had worked at the company through October 2002, an engineer named James H. Pohl ("Pohl") whose license had been inactive since September 1, 2000 had left his seal at the offices of Pool People, and allowed his name and seal to be used on permit applications as to which he had not provided any supervision.
True and correct copies of that Former Employee Complaint and follow-up correspondence are attached as Composite Exhibit D to the Pool People Fees Application, and are admissible as evidence for purposes of the Evidentiary Hearing without supporting testimony, and with any and all hearsay objections being waived.
The Former Employee Complaint makes no reference to the relationship between Pool People [and] engineer Ming Huang, makes no reference at all to Huang, and makes no reference to any conduct by Pool People after October 2002.
The Former Employee Complaint is the only third party complaint to the Board about Pool People contained in the Board's investigative file on Pool People.
As a result of this Former Employee Complaint, an investigation was conducted by the Board of engineer James H. Pohl, Case No. 03-0045, and the Board's probable cause panel ultimately voted to file an administrative complaint against Pohl individually.
The administrative complaint filed against Pohl was not the Administrative Complaint filed against Pool People in the Underlying Proceedings.
Huang had no involvement in any of the conduct or projects which were the subject of the complaint against Pohl.
The Administrative Complaint against Pool People in the Underlying Proceedings was predicated on alleged conduct and swimming pool projects wholly separate and distinct from -- and which occurred well after -- the conduct and projects which had been the subject of the administrative complaint against Pohl.
Pool People began doing business with Huang only after the filing of the administrative complaint against Pohl.
It was not until nearly a year after the commencement of the Board's investigation of Pohl that the Board first commenced a separate investigation of Pool People under a separate case number, 04- 0074.
The Board's investigative file on Pool People reflects through a memo from the Board's investigator to its prosecutor dated June 21, 2004 ("Investigator's Memo"), that the Board had been notified by Pool People:
"Well over a year ago the company changed its way of operating. Jim Pohl was coming in and reviewing every plan and signing them. Now that he is retired, the company has a new engineer who is signing and sealing and making sure that everything is up to snuff."
A true and correct copy of that Investigator's Memo is attached as Exhibit E to the Pool People Fees Application, and is admissible as evidence for purposes of the Evidentiary Hearing without any supporting testimony, and with any and all hearsay objections being waived.
The Investigator's Memo reflects Pool People also notified the Board at that time that its new engineer, Ming Huang, was not an employee of Pool People, but instead was an outside independent contractor: "[Pool People] contracts with an engineer to provide the engineering services."
On November 18, 2004, the Board conducted a probable cause panel proceeding to determine whether or not to prosecute Pool People for "practicing as an engineering firm without holding a Certificate of Authorization issued by the Florida Board of Professional Engineering."
A true and correct copy of the transcript of that November 18, 2004, probable cause panel proceeding is attached as Exhibit F to the Pool People Fee Application, and is admissible as evidence for purposes of the Evidentiary Hearing without any supporting testimony, and with any and all hearsay objections being waived.
The Board's probable cause panel ("Panel") voted to file charges against Pool People for five purported violations of s. 471.023, F.S., based on allegations Pool People had engaged in the unlicensed practice of engineering by constructing
swimming pools for five different customers (the "Five Projects") through the use of engineering drawings signed and sealed by a licensed engineer, Ming Huang, P.E., in May- July 2004, without obtaining its own Certificate of Authorization ("Probable Cause Panel Charges").
None of the customers which were the subject of the Probable Cause Panel Charges, and none of the challenged engineering drawings which were the subject of the Probable Cause Panel Charges, had been the subject of the complaint against Pohl.
All of the challenged conduct which was the subject of the Probable Cause Panel Charges occurred after the time in which the Board had been notified through the Investigator's Memo that Pool People had changed its practices from those which had been the subject of the complaint against Pohl and had engaged a new engineer as its independent contractor.
The operative statute on which the Probable Cause Panel Charges are based is
s. 471.023(1), F.S., which provides in pertinent part:
471.023 Certification of business organizations.
(1) The practice of, or the offer to practice, engineering by licensees or offering engineering services to the public through a business organization, including a partnership, corporation, business trust, or other legal entity or by a business organization, including a corporation, partnership, business trust, or other legal entity, offering such services to the public through licensees under this chapter as agents, employees, officers, or partners is permitted
only if the business organization possesses a certification issued by the management corporation pursuant to qualification by the board, subject to the provisions of this chapter. One or more of the principal officers of the business organization or one or more partners of the partnership and all personnel of the business organization who act in its behalf as engineers in this state shall be licensed as provided by this chapter. . . .
At the probable cause panel proceeding, the Panel's prosecutor admitted this was a "test case," with one Panel member emphasizing the Board had 'taken positions two different ways in the past' and was 'not consistent' over whether contractors which contract with licensed engineers under such circumstances were or were not required to obtain certificates of authorization from the Board.
The Panel decided to prosecute Pool People for allegedly violating s. 471.031(1)(a) in connection with each of those Five Projects by not having its own certificate of authorization as purportedly required by s. 471.023, F.S., and also to seek to impose against Pool People the maximum penalty of $5,000 per alleged violation, or $25,000.
As a result of the Board's Probable Cause Panel determination, on December 20, 2004, the Board, through its agent Florida Engineers Management Corporation ("FEMC") pursuant to s. 471.038, F.S., initiated the Pool People Prosecution by filing an Administrative Complaint against Pool People under Chapter 120, Florida Statutes.
The Administrative Complaint alleged Pool People had violated ss. 471.023 and
471.031(1)(a), F.S. by filing engineering plans signed and sealed by licensed engineer Ming Huang without its own certificate of authorization in connection with the Five Projects, because "on information and belief, Respondent employed Mr. Huang to provide engineering services included in [each of its Five Projects]."
On March 2, 2005, the Board through its counsel of record admitted in the Underlying Proceedings that the Board had never had evidence of an employment relationship between Huang and Pool People. The Board's current counsel asserts this admission is irrelevant.
On March 2, 2005, the Board through its counsel of record admitted in the Underlying Proceedings that when the Board initiated its agency action against Pool People the Board had no evidence contradicting Pool People's notification to the Board as reflected in its Investigator's Memo that Huang was an independent contractor, and not an employee, of Pool People. The Board's current counsel asserts this admission is irrelevant.
No Board investigator or representative contacted any principal or employee of Pool People prior to the filing of the Administrative Complaint as part of any investigation of any of the allegations in that Administrative Complaint, including but not limited to its allegation that Huang was an employee of Pool People.
No Board investigator or representative contacted Huang prior to the filing of the Administrative Complaint against Pool People as part of any investigation of any of the allegations in that Administrative Complaint, including but not limited to its allegation that Huang was an employee of Pool People.
FEMC presented no live witnesses to testify at the final hearing before Administrative Law Judge Lerner in the Underlying Proceedings, and presented no other evidence even purporting to support the existence of such an employment relationship between Huang and Pool People. The Board's current counsel asserts this is irrelevant.
On March 2, 2005, the Board through its counsel of record admitted in the Underlying Proceedings: "Without other facts, the fact that a contractor includes engineering drawings in a building permit application filed by the contractor, does not constitute the practice of engineering when the engineer is not the employee of the contractor." The Board's current counsel asserts this is irrelevant.
On March 2, 2005, the Board through its counsel of record admitted in the Underlying Proceedings that the Board has never issued any final order, rule, statute or policy statement defining the practice of professional engineering to include circumstances where a licensed contractor files a building permit application that includes engineering drawings signed and sealed by a licensed engineer who is not an employee of the contractor. The Board's current counsel asserts this is irrelevant.
In the Underlying Proceedings, Administrative Law Judge Lerner found in his Recommended Order that as a matter of law: "Section 471.023's certificate of authorization requirement is triggered only where the licensees are acting as 'agents, employees, [or] officers' of the corporation." The Board's current counsel asserts this is irrelevant.
In the Underlying Proceedings, Administrative Law Judge Lerner found in his Recommended Order that the Board had not
introduced any evidence of an employment relationship between Pool People and Huang, and also that "the record affirmatively establishes that Mr. Huang was not an employee of the Pool People, but rather acted as an independent contractor." The Board's current counsel asserts this is irrelevant.
In the Underlying Proceedings the Board never asserted or took the position that Huang or any other licensed engineer had acted as an agent, officer or partner of Pool People in connection with any of the Five Projects, but only alleged in that Administrative Complaint that on "information and belief" Huang had been an employee. The Board's current counsel asserts this is irrelevant.
Other than the claims that Pool People had filed engineering plans signed and sealed by licensed engineer Ming Huang without its own certificate of authorization in connection with the Five Projects, the only other claims asserted in the Administrative Complaint against Pool People were that in each of the same Five Projects, Pool People had "provided engineering services directly to a customer" without a certificate of authorization, in violation of s. 471.023, F.S. and s. 471.031(1)(a), F.S.
In the Underlying Proceedings, Administrative Law Judge Lerner in his Recommended Order dismissed the claims that Pool People had "provided engineering services directly to a customer" without a certificate of authorization, and found there was no evidence Pool People itself or through any employee directly provided anything other than pool construction services to its customers. Judge Lerner further found in that Recommended Order that the only person who provided engineering services directly to customers was Huang,
and therefore the lack of any evidence Huang had been an employee of Pool People, as opposed to an independent contractor, negated any claim that Pool People itself or through an employee had "directly" provided engineering services to these customers.
The Board's current counsel asserts this is irrelevant.
As a result of the findings of fact and conclusions of law in the Recommended Order, on November 29, 2006, Administrative Law Judge Lerner recommended the Administrative Complaint be dismissed as to Pool People in the Pool People Prosecution.
After reviewing the record and hearing argument of counsel at a final administrative hearing, on March 9, 2007, the Board expressly approved and adopted Judge Lerner's findings of fact and also his conclusions of law, and entered a final order in favor of Pool People dismissing the Administrative Complaint against Pool People.
The Revised Joint Prehearing Stipulation contained the following factual stipulations relating to Petitioner's "[a]ttorney's fees and costs" in the "Underlying Proceedings":
Even if the hourly rates charged by the attorneys for Pool People in the Underlying Proceedings had been $250 to $200 per hour, which the Board contends would have been a reasonable rate (although Pool People continues to contend the rates actually charged were reasonable), and even if costs for photocopying, long distance calls, attorney travel expenses and express mail were excluded as not being taxable (although Pool People contends they are taxable under the definition in s. 57.111(3)(a), F.S.), at least $50,000 in attorneys' fees were reasonably and necessarily incurred by Pool People for all preparations, motions,
hearings, trials and appeals in the Pool People Prosecution through July 2006.
Expert testimony regarding the hourly rate, the amount of attorney time spent or the legal services provided shall not be required at the Evidentiary Hearing.
Although the Board disputes that there should be any award at all of attorneys' fees or costs to Pool People, if there is such an award to Pool People then it should be in the amount of $50,000.
In the Revised Joint Prehearing Stipulation, the parties provided the following "[c]oncise [s]tatement of [t]hose [i]ssues of [l]aw on which [t]here is [a]greement":
The purpose of FEAJA[3] is to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in certain situations an award of attorneys' fees and costs against the state.
Once the party seeking fees under FEAJA proves it is a small business party, as defined by section 57.111, and is the prevailing party, the burden shifts to the government agency to show that its action in initiating the proceeding was "substantially justified."
Pool People is a "prevailing" party as defined in s. 57.111(3)(c), F.S., although the parties disagree whether or not Pool People is a "small business party."
The Board is a "state agency" as defined in s. 120.52(1), F.S.
The Pool People Prosecution was an administrative proceeding initiated by a state agency against Pool People, as defined in s. 57.111(3)(b)3, F.S.
The Board’s Final Order dismissing the Administrative Complaint was a final order in favor of Pool People as to which the time for seeking judicial review has expired, and which has not been reversed on appeal.
If Pool People is a prevailing small business party as defined in s.57.111(3)(c), F.S., then it would be the Board’s burden to prove the actions of the Board in initiating and prosecuting proceedings against that prevailing small business party were substantially justified at the time those proceedings were initiated by the Board.
The burden of proving "substantial justification" under FEAJA requires proof the charges against a prevailing small business entity had a reasonable basis in law and fact at the time it was initiated by the state agency.
To be "substantially justified" under FEAJA means more than merely undeserving of sanctions for frivolousness. While government action may not be so unfounded as to be frivolous, it may nonetheless be based on such an unsteady foundation factually and legally as not to be substantially justified under FEAJA. Helmy v. Department of Business Regulation, 707 So. 2d 366, 368 (Fla. 1st DCA 1998); Department of Health & Rehabilitative Services v. S.G., 613 So. 2d 1380, 1386 (Fla. 1st DCA 1993).
Accordingly, where an agency has not conducted a proper factual investigation and ignored obvious sources of factual information needed to determine whether or not there had been a statutory violation, the agency fails to carry its burden to demonstrate that it was substantially justified in initiating the original administrative proceeding. State Department of Health and Rehabilitative Services v. South Beach Pharmacy, 635 So. 2d 117, 121-22 (Fla. 1st DCA 1994).
"Substantial justification" is not proven where nothing in the proceedings before the probable cause panel suggests that the members of the panel even had an awareness of, much less considered, the statutory definition on which the charges were predicated. In order to be substantially justified, an agency must, at the very least, have a working knowledge of the applicable statutes under which it is proceeding. Helmy v. Department of Business Regulation, 707 So. 2d at 369-70.
No special circumstances exist which would make an award of attorneys' fees to Petitioner unjust.
Respondent is not a nominal party.
Copies of the papers filed in the Underlying Proceedings are admissible into evidence at the Evidentiary Hearing without supporting testimony, and with any and all hearsay objections being waived.
Copies of the papers attached as exhibits to the Pool People Fee Application, including but not limited to affidavits and their exhibits, are admissible into evidence at the Evidentiary Hearing without supporting testimony, and with any and all hearsay objections being waived.
The Revised Joint Prehearing Stipulation indicated that the following "[i]ssues of [l]aw . . . [r]emain[ed] for [d]etermination by the [a]dministrative [l]aw [j]udge":
Whether or not a corporation which has its principal office in Florida and has at the time the action is initiated by a state agency a net worth of not more than $2 million, is a "small business party" as defined in s. 57.111(3)(d) if that corporation has more than 25 employees at
the time the action is initiated by the state agency.
Whether or not Pool People is a "small business party" as defined in s. 57.111(3)(d), F.S.
Whether or not the actions of the Board in initiating and prosecuting the Pool People Prosecution were "substantially justified" as defined in s. 57.111(3)(e), F.S., at the time [it] was initiated by the Board.
The Transcript of the final hearing (which consists of one volume) was filed with DOAH on June 13, 2007.
Petitioner and Respondent both filed their Proposed Final
Orders on July 5, 2007.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Revised Joint Prehearing Stipulation4:
The "Investigator's Memo" referred to in the parties' Revised Joint Prehearing Stipulation was a memorandum from Jack Beamish, an investigator with Respondent, to Bruce Campbell, an attorney with Respondent. It was dated June 21, 2004, and read as follows:
On June 21, 2004 I spoke on the telephone with Neal Shniderman . . . , counsel for The Pool People. He said that James Pohl, PE (Case No. 03-0045) has retired and is in the process of moving to North Carolina.
Shniderman said, "Well over a year ago the company changed its way of operating. Jim Pohl was coming in and reviewing every plan and signing them. Now that he is retired, the company has a new engineer who is signing and sealing and making sure everything is up to snuff. I'm worried about them signing the affidavit because I don't want them to acknowledge that they were engaged in an unlawful act. I don't want to let my client admit to violating the law in the past, particularly where we don't believe they violated the law, and how they will act in the future. I don't understand where my client is doing anything wrong. It is not holding itself out to be an engineering firm; it's a pool contracting firm. It contracts with an engineer to provide engineering services."
I cited Chapter 471.023 and told Mr. Shniderman that it appears that the firm is directly contracting to provide pool construction and engineering services, and that in order to do that the simple answer would be to apply for a certificate of authorization. (TPP [The Pool People] is then subcontracting the engineering work out.) He stated that he thought it to be lawful for TPP to practice business as it currently is. I suggested that he talk to you to further discuss his position. I said that I would have you call him.[5]
The November 18, 2004, "probable cause panel proceeding" referred to in the parties' Revised Joint Prehearing Stipulation opened with Mr. Campbell, addressing the following comments to the probable cause panel6:
This investigation is predicated on a complaint filed on April 9th 2004 by the Florida Board of Professional Engineers alleging that The Pool People, Inc., was practicing as an engineering firm without
holding a Certificate of Authorization issued by the Florida Board of Professional Engineering.
The Pool People, Inc., which is a certified contracting business licensed by the Department of Business and Professional Regulation Construction Industry Licensing Board, does not have and has never had a Certificate of Authorization to provide engineering services in the State of Florida.
A notice to cease and desist the unlicensed practice of engineering was issued to The Pool, Inc., on May 24th, 2004.
On . . . August 2nd, 2004 the Florida Board of Professional Engineer[s] obtained from the Palm Beach County Planning, Zoning and Building Department certified copies of five permit applications and pool plans submitted by The Pool People, Inc., during the period of June and July 2004.
The permit applications were submitted by Daniel Lowe, a certified pool contractor and qualifier for The Pool People, Inc., and the plans were signed and sealed by Ming Z. Huang, P. [E].
On information and belief The Pool People, Inc., employed Mr. Huang to provide engineering services, evidenced by the five sets of pool plans, included with [The Pool People's] contracts with the property owners. By filing engineering plans signed and sealed by a professional engineer employed by [T]he [Pool People] while [T]he [Pool People] did not have a Certificate of Authorization, and by providing engineering services directly to the customer while [T]he [Pool People] does not have a Certificate of Authorization, [T]he [Pool People] has therefore practiced engineering without being duly licensed.[7]
The following are other pertinent excerpts from the transcript of the November 18, 2004, "probable cause panel proceeding":
The [Panel] Chairman: Well, Bruce, the reason I raised the question [of whether the county knew about the cease and desist order] was that in reading their attorney's comments I am interpreting their attorney as stating, one, he doesn't think they need a CA and, secondly, I interpret that they have no intent in getting a CA.
Mr. Campbell: That is exactly why we are bringing this complaint.
The Chairman: [That] is why I commented about [why] I think the county needs to know there is a cease and desist so they no longer accept any plans from this organization.[8]
* * *
The Chairman: True. But if they had knowledge that we had issued the cease and desist order they may in turn turn the drawings right back over to them.
Mr. Tomasino[9]: You would shut down every pool contractor in the State of Florida, every one.
Mr. Campbell: And part of the thing here is that I think we need to go forward with this case, and it's going to be more or less a test case that, you know, we need to establish those facts before we I think go with the lesser and perhaps ineffective notice to cease and desist.
Mr. Tomasino: Well, we have taken positions two different ways in the past, and I have a problem with it because we are not consistent. Certain organizations can hire
an engineer and provide a product and it is okay. Certain organizations can do that and it is not okay. And I think we need to clear up the fact who is the engineer supposed to be contracting with to avoid the contractor having the CA, design build.
Just about every single one of them the contractor hires the engineer and the architect and that is part of his overall fee for construction. He doesn't have a CA and doesn't intend to get one.
This situation in the State of Florida in my opinion could possibly find manufacturers exempt because they're taking various components by other people and putting it together.
Mr. Campbell: This is true except for the fact that they're putting it on a site and what they are using the engineer for is to put it on a site, and that engineering - -
Mr. Tomasino: But - -
Mr. Campbell: - -is site specific and very definitely something for the owner of the property.
Mr. Tomasino: No question about that. But so is design build.[10]
* * *
Mr. Campbell: There may be some requirement of clarification as far as the statute, but the way the statute exists they're entering into a contract to provide engineering services and they don't have a Certificate of Authorization.
The Chairman: That is pretty clear, pretty clear in the statute. And I don't know how he is - - the attorney [for The Pool People] now - - how he is interpreting it otherwise. [11]
* * *
The Chairman: Well, you know, his attorney's reference to 471.023 is pretty correct paraphrasing. I mean, he hasn't restated all of it but, you know, Subsection
2 says for the purpose of this section a Certification of Authorization shall be required for any business organization or other person practicing under a fictitious name, offering engineering services to the public. That is exactly what this outfit is doing that they have to have a CA.
Mr. Seckinger[12]: What part of - - I will play the devil's advocate - - what part of engineering services are they offering?
Mr. Chairman: The site engineering.
Mr. Seckinger: Well, all they are doing is putting a pool in a level ground in the backyard. There is no engineering there.
The Chairman: Why is he sealing it?
Mr. Sunshine[13]: Yeah. They have an engineer sealing it for them.
Mr. Seckinger: That is a good question. The local authorities require it?
Mr. Tomasino: Health department probably and probably the building department.
The Chairman: But that is offering engineering services without a CA.
Mr. Seckinger: If we were talking about enclosed - -pool enclosures would be even more so.
Mr. Tomasino: The health department is interested because of recirculating systems and filtration systems et cetera, et cetera.
Mr. Seckinger: Okay. I will get off the platform I was on.[14]
* * *
Mr. Tomasino: I understand what the statute is saying because the Chairman made it very clear. [15]
* * *
Mr. Seckinger: Mr. Chair, I move that we find probable cause in the case under discussion.
The Chairman: The Pool People, Inc.
Mr. Seckinger: The Pool People, Inc., unlicensed.
The Chairman: Do we have a second? Mr. Tomasino: Second
The Chairman: All those in favor say aye. Mr. Tomasino: Aye.
Mr. Seckinger: Aye. The Chairman: Aye.[16]
* * *
The Chairman: I mean, if there was some gray area in the wording of Subsection 2 of
471.023. I don't see there is any gray area. And - -
Mr. Campbell: I don't either. As long as that is the statute I think the prosecuting attorney has the responsibility to go forward with it.[17]
* * *
Mr. Sunshine: Now that we have brought it [the improper use of Mr. Pohl's seal] to their [The Pool People's] attention, they have taken the steps to bring in someone to actually review these things, but they are unwilling it appears to acquire a CA.[18]
* * *
The Chairman: Mr. Tomasino, since you are on that page you don't have to go back to it, again, this attorney is interpreting that item 2 from 471.023 does not apply because they are not providing engineering services. They're a consumer of them, which - -
Mr. Tomasino: They are using services.
The Chairman: But they're putting an engineering seal on their drawings.
Mr. Sunshine: They charge their client, the home owner.
The Chairman: For engineering services. Mr. Tomasino: As a separate item.
Mr. Campbell: Not a separate item, I don't think.
Mr. Sunshine: It's a lump sum. Incorporated in our services [is] the engineering that is necessary for this project. [Y]ou pay us and we take care of everything.
Mr. Tomasino: I guess that is part of my opening comments. What is wrong with someone hiring experts to help them put a package together to sell?
Mr. Campbell: You know, that is just too general. I mean, certainly the manufacturer's exemptions is sort of a
narrow and specific one and we recognize that. That is where it happens.
You have - -you know, this is just a different situation. It is one step over the line. It's not a package that is sold in quite the same terms. It is something that is site specific and that makes the difference.
Mr. Tomasino: We need to open up the bag of worms in the aluminum enclosures again, then, because that is not site specific.
Mr. Campbell: Well, it has to be at some point.
Mr. Tomasino: People who prepare the master plans don't ever see the site.
Mr. Sunshine: We have discussed that - -
Mr. Tomasino: But we are mixing apples and oranges.
The Chairman: But if a screen enclosure company gets an engineer for a very specific job and seals that set of drawing that it [is] this situation, correct?
Mr. Campbell: Yes.
Mr. Tomasino: So the way out is for that engineer to contract with the home owner?
Mr. Sunshine: The company needs to tell them we will build it. You need to acquire an engineer and you need to pay them, not us.
The Chairman: Or obtain a CA.
Mr. Sunshine: Right. We will give you names of who[m] we would recommend. You go to that engineering firm, you contract with them, you pay them the fee, because
otherwise we could [get] hit with unlicensed activity.[19]
* * *
The Administrative Complaint issued in the Underlying Proceeding contained five counts.20 Each count charged Petitioner with "violat[ing] Section 471.031(1)(a), Florida Statutes, by practicing engineering without a license." In Count One, it was alleged that, "[o]n or about June 10, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Vista Builders, at 16326 78th Road North, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 9, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Vista Builders." In Count Two, it was alleged that, "[o]n or about July 7, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Toll Brothers, at 8108 Laurel Ridge Court, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 23, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Toll Brothers." In Count Three, it was alleged that, "[o]n or about
July 22, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Jandjel, at 10265 Brookville Lane, Boca Raton, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on July 20, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Jandjel." In Count Four, it was alleged that, "[o]n or about July 26, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Shelby Homes, at 10681 Oak Meadow Lane, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on July 22, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Shelby Homes." In Count Five, it was alleged that, "[o]n or about June 24, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Anthony Rycko, at 13761 76th Road North, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on
June 23, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its
contract with Anthony Rycko." With respect to all five counts, Petitioner alleged that:
[Petitioner] engaged in the practice of engineering in one or more of the following ways:
by filing engineering plans signed and sealed by a professional engineer employed by [Petitioner] while [Petitioner] did not have a Certificate of Authorization as required by Section 471.023, Florida Statutes;
by providing engineering services directly to a customer while [Petitioner] d[id] not have a Certificate of Authorization as required by Section 471.023, Florida Statutes.
In the "Conclusions of Law" portion of the Recommended Order he issued in DOAH Case No. 05-0382, the undersigned stated the following, among other things:
The specific allegations of wrongdoing contained in the Administrative Complaint filed in DOAH Case No. 05-0382 are that The Pool People, in connection with each of the Five Pool Projects, practiced engineering without a certificate of authorization from the FEMC in violation of Section 471.031(1)(a), Florida Statutes, by engaging "in one or more" of the following activities:
by filing engineering plans signed and sealed by a professional engineer [Mr. Huang] employed by Respondent while [it] did not have a Certificate of Authorization as required by Section 471.023, Florida Statutes [hereinafter referred to as "Allegation a."];
by providing engineering services directly to a customer while [it did] not have a Certificate of Authorization as required by Section 471.023, Florida Statutes [hereinafter referred to as "Allegation b."].
It is asserted in Allegation a. that The Pool People was required by Section 471.023, Florida Statutes, to possess a certificate of authorization from the FEMC because it engaged in the practice of engineering through a licensed engineer, Mr. Huang, who was acting as The Pool People's employee when he signed and sealed the engineering plans that were subsequently filed by the Pool People in connection with each of the Five Pool Projects.[21] The FEMC, however, failed to present clear and convincing evidence at the final hearing establishing that there existed an employee- employer relationship between Mr. Huang and The Pool People. Indeed, the record affirmatively establishes that Mr. Huang was not an employee of The Pool People, but rather acted as an independent contractor, free to exercise his professional judgment in a manner that was not subject to the control of The Pool People. See Harper v. Toler, 884 So. 2d 1124, 1131 (Fla. 2d DCA 2004)("The 'extent of control' . . . has been recognized as the 'most important factor in determining whether a person is an independent contractor or an employee.' Of course, employees and independent contractors both are subject to some control by the person or entity hiring them. The extent of control exercised over the details of the work turns on whether the control is focused on simply the 'result to be obtained' or extends to the 'means to be employed.' A control directed toward means is necessarily more extensive than a control directed toward results. Thus, the mere control of results points to an independent contractor relationship; the control of
means points to an employment relationship.")(citations omitted). A corporation, such as The Pool People, that retains FEMC-licensed engineers to provide engineering services on an independent contractor basis is not obligated to obtain a certificate of authorization from the FEMC inasmuch as Section 471.023's certificate of authorization requirement is triggered only where the licensees are acting as "agents,[22] employees, [or] officers" of the corporation. To construe Section 471.023 otherwise would add words to the statute not placed there by the Legislature. This neither the undersigned nor the [Board] may do. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999)("We are not at liberty to add words to statutes that were not placed there by the Legislature."); PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla.
1988)("The express mention of one thing implies the exclusion of another."); Cook v. State, 381 So. 2d 1368, 1369 (Fla.
1980)("According to a longstanding principle of statutory construction, this list should be presumed to be exclusive and any omissions to be deliberate."); Thayer v.
State, 335 So. 2d 815, 817 (Fla. 1976)("[W]here a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned."); Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209, 215 (Fla. 1974)("To say, as the employer would have us do, that in merger cases the true meaning of s 440.15(3)(u) is that disability for purposes of that section is the greater of physical impairment or loss of earning capacity only if there is a loss of earning capacity is to invoke a limitation or to add words to the statute not placed there by the Legislature. This we may not do."); Herrera-Lara v. State, 932 So. 2d 1138, 1141 (Fla. 2d DCA
2006)("Because the legislature did not include the terms 'temporary tags' or
'temporary license plates' in section 320.26, we must assume the legislature did not intend for section 320.26 to apply to those items."); and Childers v. Cape Canaveral Hosp., Inc., 898 So. 2d 973, 975 (Fla. 5th DCA 2005)("Courts must give statutory language its plain and ordinary meaning, and is not at liberty to add words that were not placed there by the legislature.").
The accusation made in Allegation b. that The Pool People "provid[ed] engineering services directly to a customer" in connection with each of the Five Pool Projects is likewise not supported by clear and convincing record evidence. The record reveals that The Pool People was a direct recipient, not a direct provider, of engineering services. What it contracted to provide "directly to a customer" in each instance was not any engineering service, but rather a newly-constructed residential swimming pool, a contractual obligation its certificate of authority from the CILB authorized it to assume. To fulfill this contractual obligation, it had to have engineering plans signed and sealed by a FEMC-licensed engineer. It needed these plans to apply for the building permit required to commence construction of the pool. The Pool People obtained these engineering plans from a FEMC-licensed independent contractor, not from one of its "agents, employees, [or] officers," and it then used the plans to apply for the required building permit. In doing so, it did not run afoul of any requirement of Section 471.023, Florida Statutes.
Because the specific allegations of wrongdoing contained in the Administrative Complaint filed in DOAH Case No. 05-0382 are not supported by clear and convincing evidence, the Administrative Complaint should be dismissed in its entirety.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto.
Petitioner is seeking an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, which provides as follows:
This section may be cited as the "Florida Equal Access to Justice Act" [FEAJA].
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.
As used in this section:
The term "attorney's fees and costs" means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding.
The term "initiated by a state agency" means that the state agency:
Filed the first pleading in any state or federal court in this state;
Filed a request for an administrative hearing pursuant to chapter 120; or
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.
A small business party is a "prevailing small business party" when:
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;
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
The state agency has sought a voluntary dismissal of its complaint.
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, who is domiciled 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;
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; or
An individual whose net worth did not exceed $2 million at the time the action is initiated by a state agency when the action is brought against that individual's license to engage in the practice or operation of a business, profession, or trade; or
2. Any small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action under s. 72.011 or in any administrative proceeding under that section to contest the legality of any assessment of tax imposed for the sale or use of services as provided in chapter 212, or interest thereon, or penalty therefor.
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.
The term "state agency" has the meaning described in s. 120.52(1).
(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.
1. To apply for an award under this section, the attorney for the prevailing small business party must submit an itemized affidavit to the court which first conducted the adversarial proceeding in the underlying action, or to the Division of Administrative Hearings which shall assign an administrative law judge, in the case of a
proceeding pursuant to chapter 120, which affidavit shall reveal the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions, hearings, and appeals in the proceeding.
2. The application for an award of attorney's fees must be made within 60 days after the date that the small business party becomes a prevailing small business party.
The state agency may oppose the application for the award of attorney's fees and costs by affidavit.
The court, or the administrative law judge in the case of a proceeding under chapter 120, shall promptly conduct an evidentiary hearing on the application for an award of attorney's fees and shall issue a judgment, or a final order in the case of an administrative law judge. The final order of an administrative law judge is reviewable in accordance with the provisions of s. 120.68. If the court affirms the award of attorney's fees and costs in whole or in part, it may, in its discretion, award additional attorney's fees and costs for the appeal.
No award of attorney's fees and costs shall be made in any case in which the state agency was a nominal party.
No award of attorney's fees and costs for an action initiated by a state agency shall exceed $50,000.
If the state agency fails to tender payment of the award of attorney's fees and costs within 30 days after the date that the order or judgment becomes final, the prevailing small business party may petition the circuit court where the subject matter of the underlying action arose for enforcement of the award by writ of
mandamus, including additional attorney's fees and costs incurred for issuance of the writ.
This section does not apply to any proceeding involving the establishment of a rate or rule or to any action sounding in tort.
The undersigned accepts, and hereby incorporates by reference, the stipulations regarding Section 57.111, Florida Statutes, and its application to this proceeding, which the parties included in their Revised Joint Prehearing Stipulation under the heading, "[c]oncise [s]tatement of [t]hose [i]ssues of [l]aw on which [t]here is [a]greement.
The undersigned would add the following to what the parties stipulated to regarding what constitutes proof of "substantial justification" for purposes of Section 57.111, Florida Statutes: "Generally, in resolving whether there was substantial justification for filing an administrative complaint against [a respondent], one need only examine the information before the probable cause panel at the time it found probable cause and directed the filing of an administrative complaint. In assessing the reasonableness of [agency] action, for [the agency] to be 'substantially justified' in initiating disciplinary action against a [respondent], it 'must have [had] a solid though not necessarily correct basis in fact and law for the position it took in the action.' To sustain a probable
cause determination there must be some evidence considered by the panel that would reasonably indicate that the violation had indeed occurred. The evidence, however, need not be as compelling as that which must be presented at the formal administrative hearing on the charges to support a finding of guilt and the imposition of sanctions." Fish v. Department of
Health, Board of Dentistry, 825 So. 2d 421, 423 (Fla. 4th DCA 2002). A probable cause determination will be deemed to have had a reasonable basis in law if it was based on a "novel but credible extension or interpretation of the law." Rls Business
Ventures v. Second Chance Wholesale, 784 So. 2d 1194, 1196 (Fla. 2nd DCA 2001); and Beck v. Olstein, 588 So. 2d 317, 318 (Fla. 3d DCA 1991).
"Small Business Party"
At the time of the initiation of the Underlying Proceeding, Petitioner was a "small business party," notwithstanding that it had more than 25 employees.
Respondent has taken the position that "the fact that Petitioner ha[d] more than 25 employees alone disqualifies it as a 'small business party,'" arguing:
Petitioner incorrectly argues in the Stipulation that the disjunctive "or" [in Subsection (3)(d)1.b. of Section 57.111, Florida Statutes] would mean that a "small business party" could have either less than
25 employees or a net worth of $2 million or
less. This interpretation ignores the plain reading of the statute. . . .
The undersigned disagrees. In his view, it is Respondent's interpretation, not Petitioner's, that ignores the plain meaning of the statute. See, e.g., Telophase Society of Florida, Inc. v. State Board of Funeral Directors and Embalmers, 334 So. 2d 563, 566 (Fla. 1976)("The District Court correctly held that Section 470.01(3), Florida Statutes, be construed in the disjunctive. 'Or' when used in a statute is generally to be construed in the disjunctive."); Ellinwood v. Board of Architecture and Interior Design, 835 So. 2d 1269, 1270 (Fla.
1st DCA 2003)("[P]aragraph (b) is separated from paragraph (c) [of Section 481.213(3), Florida Statutes] with the disjunctive 'or.' The use of a disjunctive in a statute indicates alternatives and requires that those alternatives be treated separately."); D.M. v. State, 712 So. 2d 1204 (Fla. 5th DCA 1998)("The word 'or' is generally construed in the disjunctive when used in a statute or rule, and normally means that alternatives were intended."); Brooks v. State, 529 So. 2d 313,
314 (Fla. 1st DCA 1988)("In our judgment the statute is plain on its face and forbids possession of contraband by an inmate anywhere, while disallowing possession by other persons only while on the grounds of a correctional institution. We reach this determination because of the statutory placement of the
word 'or' between the phrase describing inmates and that describing persons on the grounds of state correctional institutions. The word 'or' is generally construed in the disjunctive when used in a statute or rule. . . . [T]he statute alternatively applies to inmates in possession of contraband anywhere, 'or' other persons while on the grounds of correctional institutions."); McKenzie Tank Lines v. McCauley,
418 So. 2d 1177, 1179 (Fla. 1st DCA 1982)("In this case use of the emphasized word 'or' requires that the two clauses that it separates be read disjunctively."); and United States v. Smith,
35 F.3d 344, 346 (8th Cir. 1994)("The ordinary usage of the word 'or' is disjunctive, indicating an alternative. Construing the word 'or' to mean 'and' is conjunctive, and is clearly in contravention of its ordinary usage. Thus, we find the plain language of § 1623(d) controlling and accord the word 'or' its ordinary, disjunctive meaning."). Examining the language of the statute as a whole, there is nothing to suggest that the word "or" in Subsection (3)(d)1.b. (between "not more than 25 full- time employees" and "a net worth of not more than $2 million") was intended by the Legislature to be given anything but its ordinary, disjunctive meaning. The undersigned is therefore obligated to give it this meaning in determining whether Petitioner meets the requirements of Subsection (3)(d)1.b., inasmuch doing so would not lead to an absurd or unreasonable
result. See State v. Sousa, 903 So. 2d 923, 928 (Fla. 2005)("The fundamental rule of construction in determining legislative intent is to first give effect to the plain and ordinary meaning of the language used by the Legislature.
Courts are not to change the plain meaning of a statute by turning to legislative history if the meaning of the statute can be discerned from the language in the statute.[23] We have previously stated that the legislative history of a statute is irrelevant where the wording of a statute is clear, and that courts 'are not at liberty to add words to statutes that were not placed there by the Legislature.'")(citations omitted); Castillo v. De Castillo, 771 So. 2d 609, 610-611 (Fla. 3d DCA 2000)("One of the fundamental rules of construction dictates that when the language under review is unambiguous and conveys a clear meaning, it must be given its plain and ordinary meaning. However, that principle is tempered by another cardinal tenet of statutory construction that cautions against giving a literal interpretation if doing so would lead to an unreasonable or absurd conclusion, plainly at variance with the purpose of the legislation as a whole.")(citation omitted); and Hechtman v.
Nations Title Insurance of New York, 767 So. 2d 505, 507 (Fla. 3d DCA 2000)("Although we certainly understand and share the appellants' concerns about the wisdom of a legislative enactment which allows title insurers to escape statutory liability for
the misdeeds of its duly appointed attorney agents, we nevertheless are constrained to give effect to the plain and ordinary meaning of the words utilized in section 627.792.").
The undersigned has considered the Division of Administrative Hearings case law Respondent has cited in support of its reading of Subsection (3)(d)1.b., but has found such case law to be unpersuasive.24 Among the cited cases is March v. Division of Department of Business and Professional Regulation, No. 94-1251F, 1994 Fla. Div. Adm. Hear. LEXIS 5743 (Fla. DOAH December 20, 1994)(Final Order), wherein the hearing officer, in her final order, denied the petitioner's Section 57.111 fee request, stating, in pertinent part, as follows:
March's business is that of horse trainer and is a sole proprietorship. Based on his income tax return for 1992, I conclude that he had less than 25 full-time employees. No evidence was presented to establish that his net worth, including business and personal assets, was $2 million or less at the time the action was initiated by DBPR. Thus, March did not establish that he is a small business party as defined by Section 57.111(3)(d)1.a., Florida Statutes.[25]
DBPR has established that it was substantially justified at the time that it initiated the action against March. . . .
DBPR had a basis both in law and in fact to initiate the proceedings against March on June 6, 1992.
March has failed to establish that he is entitled to attorney's fees and costs
pursuant to Section 57.111, Florida Statutes.
An appeal was taken, and the final order was affirmed, per
curiam, without opinion, by the Third District Court of Appeal in March v. Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 661 So. 2d 13 (Fla. 3d DCA 1995)(table). Respondent contends that, in taking such action, the Third District "affirmed" the hearing officer's interpretation of Section 57.111, Florida Statutes, reflected in paragraph 21 of her final order, and it suggests that the undersigned rely on this "affirmance." The undersigned must decline the invitation inasmuch as Third District's per curiam affirmance has no precedential or persuasive value. See Department of Legal Affairs v. District Court of Appeal, 434 So. 2d 310, 312 (Fla. 1983)("The views expressed by the district courts are proper and correct interpretations of the nonprecedential value of per curiam affirmances without opinion."); St. Fort v. Post, Buckley, Schuh and Jernigan, 902 So. 2d 244, 248 (Fla. 4th DCA 2005)("[A] per curiam affirmance without written opinion, even one with a written dissent, has no precedential value and should not be relied on for anything other than res judicata."); State v. Swartz, 734 So. 2d 448 (Fla. 4th DCA 1999)("Swartz's citation before the trial court to our per curiam affirmance decision in Breen was improper, as was
the trial court's reliance on that per curiam affirmance. As has been stated countless times before, a per curiam affirmance decision without written opinion has no precedential value and should not be relied on for anything other than res judicata."); and Department of Revenue v. Kemper Investors Life Insurance Co., 660 So. 2d 1124, 1129 (Fla. 1st DCA 1995)("This case was a "Per Curiam, Affirmed", without opinion, and is therefore of no precedential authority.").
Neither has the undersigned overlooked the federal cases relied on by Respondent interpreting 28 U.S.C. § 2412(d)(2)(B) of the federal Equal Access to Justice Act, as it existed at the time Section 57.111, Florida Statutes, was originally enacted in 1984. This federal statutory provision defines "party," as used in 28 U.S.C. § 2412(d), which authorizes an "award to a prevailing party other than the United States [of] fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort) . . . brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." In 1984, § 2412(d)(2)(B) provided:
"party" means (i) an individual whose net worth did not exceed $1,000,000 at the time the civil action was filed, (ii) a sole
owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed
$5,000,000 at the time the civil action was filed, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agriculture Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association, or
(iii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization, having not more than 500 employees at the time the civil action was filed.
(emphasis supplied). Respondent has cited three cases holding that the "or" separating subsection (ii) and (iii) of § 2412(d)(2)(B) had to be read as meaning "and" in order to implement the intent of Congress (Unification Church v.
Immigration and Naturalization Service, 762 F.2d 1077 (D.C. Cir. 1985), Missouri Pacific Truck Lines v. United States, 746 F.2d 796 (Fed. Cir. 1984), and American Academy of Pediatrics v.
Heckler, 594 F. Supp. 69 (D. D.C. 1984)), and has made the following argument concerning the significance of these cases:
[T]he legislative history on the creation of the Florida Equal Access to Justice Act (FEAJA) by the Florida Legislature in 1984 finds that it is modeled after the federal statute, the Federal Equal Access to Justice Act (EAJA). Daniels v. Florida Department of Health, 898 So. 2d 61 (Fla. 2005).[26]
When required to interpret Florida statutes that have been modeled after federal law on the same subject the courts have recognized that such a law would take the same construction in Florida courts as its prototype has been given in federal court if such a construct[ion] is in harmony with the Florida legislation. Gentele v. Florida Board of Professional Regulation, 513 So. 2d 672, at 673 (Fla. 1st DCA 1987). As such it can be inferred that the Florida Legislature did not seek to make the twin threshold criteria of net worth and number of full time employees to be mutually exclusive but rather twin components which if a Petitioner exceeds either requirement is not a "small business party" for section
57.111 purposes.
It is true that, "[a]s a general rule, when a Florida statute . . . is modeled after a federal law on the same subject, the Florida statute . . . will take on the same construction as its federal prototype, insofar as such construction is harmonious with the spirit and policy of the Florida law." Department of Environmental Regulation v. SCM Glidco Organics Corp., 606 So. 2d 722, 725 (Fla. 1st DCA 1992). However, even assuming that Subsection (3)(d)1.b. of Section 57.111, Florida Statutes, was modeled after the version of 28
U.S.C. § 2412(d)(2)(B) in effect in 1984, this principle would not require the undersigned to interpret Subsection (3)(d)1.b. in the manner urged by Respondent. This is because other federal courts have construed the 1984 version of § 2412(d)(2)(B) differently than did the courts in the three cases
relied on by Respondent and therefore there is no uniform interpretation of the language in question. See Gross v. State, 765 So. 2d 39, 45 (Fla. 2000)("As discussed above, the various federal circuits are in disagreement on the appropriate definition of an enterprise under the federal RICO statute.
However, because the approach used by any particular federal circuit is merely persuasive and not binding, we are free to adopt either the narrow view . . . or the broad view ").
These other federal court cases with contrary holdings include: Lee v. Johnson, 799 F.2d 31, 36 (3d Cir. 1986), wherein the court stated:
To construe the provisions as suggested by the government, we would have to read them as if they were written as follows: (i) an individual whose net worth did not exceed
$1,000,000 at the time the civil action was filed, [or] (ii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed $5,000,000 at the time the civil action was filed . . .
[and] (iii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization, having not more than 500 employees at the time the civil action was filed. The
addition of the disjunction "or" after the first clause and the substitution of the conjunction "and" after the second clause both would be required if the section were to retain any meaning.
The district court held, and we agree, that courts are not free to resort to such extensive statutory revision to cure claimed congressional drafting errors. Twice before
this court has without discussion read the Act's party-qualification provisions literally and disjunctively. See Citizens Council v. Brinegar, 741 F.2d 584, 589 (3d Cir. 1984); Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 703 F.2d 700, 704 n.4 (3d Cir.
1983). We decline to depart from these precedents and find that the district court properly held that Ft. Steuben's undisputed allegations placed it within the Act's coverage.n5
n5. We acknowledge that two other Courts of Appeals have interpreted the qualifying provisions in the manner suggested by the government here. See Unification Church v. I.N.S., 246 U.S. App. D.C. 98, 762 F.2d
1077, 1090-91 (D.C. Cir. 1985); Missouri
Pacific Truck Lines v. United States, 746 F.2d 796, 797-98 (Fed. Cir. 1984). We
choose not to embark on so bold a venture.
Knights of Ku Klux Klan Realm v. East Baton Rouge Parish School Board, 679 F.2d 64, 68 (5th Cir. 1982), wherein the court stated:
To qualify for a mandatory fee award under section 2412(d), the KKK faces two additional hurdles. First, it must demonstrate that it meets the financial eligibility requirement set forth in section 2412(d)(2)(B), which requires that the organization's net worth did not "exceed
$5,000,000 at the time the civil action was filed . . . (or that the organization had) not more than 500 employees at the time the civil action was filed."n11
n11. Under 5 U.S.C. § 504(b)(1)(B), parties in "adversary adjudications" before government agencies are only excluded from eligibility for mandatory attorneys' fees awards if they have a net worth exceeding
$5,000,000 and have more than 500 employees.
S & H Riggers and Erectors, Inc. v. Occupational Safety and Health Review Commission, 672 F.2d 426, 427 (5th Cir. 1982), wherein the court stated:
"Party" is defined to exclude larger companies and wealthier individuals: A "party" is an individual with a net worth of
$1 million or less, a company with a net worth of $5 million or less, or a company with 500 employees or less. Id. at § 2412(d)(2)(B). "Party" appears to be defined differently in the legislative history and in the companion provision, 5
U.S.C. § 504(a) (discussed infra), to include only companies with net worth of $1 million or less and 500 employees or less.
Grob, Inc. v. United States, 599 F. Supp. 47, 50-51 (D. Wis. 1984), wherein the court stated:
The question of whether the net worth and the work force qualification are to be applied conjunctively or disjunctively is best resolved by a clear reading of the statute involved, something other courts have previously undertaken. As Judge Marilyn H. Patel commented in Hoopa Valley Tribe v. Watt, 569 F. Supp. 943, 945-946
(N.D. Cal. 1983):
"The court is aware that the comparable provision under the Equal Access for [sic] Justice Act for award of fees and expenses in administrative as opposed to court proceedings defines "party" to exclude both those associations and organizations whose net worth exceeds $5,000,000 and those who employ more than 500 employees, regardless of net worth. 5 U.S.C. § 504(b)(1)(B)(i), (ii). The legislative history of the Act indicates an intention to define "party" identically for both administrative and court proceedings. H. Conf. Rep. No. 96- 1434, reprinted in 1980 U.S. Code Cong. &
Admin. News 5003, 5011, 5015. Nevertheless, the plain language of the two provisions defining "party" is distinctly different.
The provision governing eligibility for fees in civil actions such as this one defines "party" by inclusion, listing three alternative methods of qualification in the disjunctive. By contrast, the provision for fees in administrative proceedings defines party by exclusion, listing two conditions of disqualification in the conjunctive.
Congress can speak clearly if it chooses. When the applicable statutory language is clear on its face, as here, it is not for the court to go beyond its terms to search out ambiguity in the legislative history absent rare and exceptional circumstances. See e.g., Rubin v. United States, 449 U.S. 424, 101 S. Ct. 698, 701, 66 L. Ed. 2d 633
(1981) (citations omitted); United States v. Rone, 598 F.2d 564, 569 (9th Cir. 1979). No
such exceptional circumstances are present here (emphasis supplied in part)."
Thus, 5 U.S.C. § 504 relating to adjudications by administrative agencies defines the term "party" so as to include only companies with net worths of $5,000,000 or less and 500 employees or less. At the same time, 28 U.S.C. § 2412, relating to court proceedings, defines the term "party" as a corporation with a net worth not exceeding $5,000,000 or one employing not more than 500 persons.
It is true that the legislative history lends some support to the proposition that the Congress intended to define "party" in the same way for both types of adjudication; yet that is not what it said, and the courts are ill-advised to breathe meaning into a legislative enactment that is absolutely clear on its face. Accordingly, this Court finds Grob, Inc. to be an eligible party under 28 U.S.C. § 2412(d)(2)(B).
and Citizens Bank, Valley Head v. United States, 558 F. Supp. 1301, 1302 (D. Ala. 1983), wherein the court stated:
To be eligible for the mandatory fee award, plaintiff must qualify as a small business under the EAJA by meeting the financial standards set forth in 28 U.S.C. § 2412(d)(2)(B), which limit such recovery to organizations whose net worth does not "exceed $5,000,000 at the time the civil action was filed . . . [or that the organization had] not more than 500 employees at the time the civil action was filed." Although meeting either of these requirements is sufficient under the terms of the statute, plaintiff here has met both, as shown in the uncontroverted affidavits of
E. N. Jones, III, vice-president and cashier of Citizens Bank.
The undersigned has chosen to follow the approach taken in these cases and to read Subsection (3)(d)1.b. of Section 57.111, Florida Statutes, in a manner that is most consistent with the plain and ordinary meaning of the language used by the Legislature.
Substantial Justification
Having resolved in favor of Petitioner the lone disputed issue concerning Petitioner's status as a "prevailing small business party," the undersigned must determine whether Respondent met its burden of establishing that "the Pool People Prosecution [was] 'substantially justified' as defined in s. 57.111(3)(e), F.S., at the time [it] was initiated" by the probable cause panel.
At the time of its probable cause determination, the probable cause panel had before it information that Petitioner was a corporate entity, without a certificate of authorization, that had hired an engineer, Mr. Huang, to provide engineering services (involving the signing and sealing of site-specific engineering plans) that needed to be performed to fulfill Petitioner's contractual obligations to the Five Pool Projects customers. It is true, as Petitioner has pointed out, that the probable cause panel had no evidence that there was an employee- employer relationship between Mr. Huang and Petitioner. The probable cause panel, however, understandably, given its view of the law, was not concerned with whether Mr. Huang was acting on behalf of Petitioner in connection with these projects as an employee or as an independent contractor.
The transcript of the meeting of the probable cause panel reveals that the panel focused its attention on Section 471.023(2), Florida Statutes, which at all material times has provided as follows:
For the purposes of this section, a certificate of authorization shall be required for any business organization or other person practicing under a fictitious name, offering engineering services to the public. However, when an individual is practicing engineering in his or her own given name, he or she shall not be required to be licensed under this section.
It was reasonable for the probable cause panel to have construed this statutory provision (read together with Subsection (1) of the statute27) as requiring that a certificate of authorization be obtained by a "business organization" such as Petitioner that agrees to undertake for a customer a project the completion of which involves the performance of engineering services, regardless of whether the engineering services are to be performed by an employee of the organization or an independent contractor.28 That this interpretation may not have been the only or best one the panel could have selected does not detract from its reasonableness. Cf. Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So. 2d 258, 261 (Fla.
1st DCA 1985)("When an agency committed with authority to implement a statute construes the statute in a permissible way, that interpretation must be sustained even though another interpretation may be possible or even, in the view of some, preferable."); and Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984)("[T]he agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations."). Having information that Petitioner had undertaken the Five Pool Projects (which involved the performance of engineering work) without first obtaining a
certificate of authorization, the probable cause panel had a solid reason to believe that Petitioner, in connection with these projects, was guilty of violating Section 471.031(1)(a), Florida Statutes, which at all material times has provided that "[a] person may not: [p]ractice engineering unless the person is licensed[29] or exempt from licensure[30] under this chapter."
Because the panel's probable cause determination had a reasonable basis in fact and law, Petitioner is not entitled to an award of award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, notwithstanding its status a prevailing small business party. Its application for such an award is therefore hereby DENIED.
DONE AND ORDERED this 18th day of July, 2007, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 18th day of July, 2007.
ENDNOTES
1 Unless otherwise noted, all references in this Final Order to Florida Statutes are to Florida Statutes (2006).
2 Two exhibits that were offered into evidence (Respondent's Exhibits A and B) were rejected.
3 The FEAJA is the "Florida Equal Access to Justice Act," which is found in Section 57.111, Florida Statutes. § 57.111(1), Fla. Stat. ("This section may be cited as the 'Florida Equal Access to Justice Act.'").
4 The undersigned has accepted these factual stipulations. See Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative,
52 So. 2d 670, 673 (Fla. 1951)("When a case is tried upon stipulated facts the stipulation is conclusive upon both the trial and appellate courts in respect to matters which may validly be made the subject of stipulation."); Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856, 863 (Fla. 4th DCA 1997)("The hearing officer is bound by the parties' stipulations."); and Palm Beach Community College v. Department of Administration, Division of Retirement, 579 So. 2d 300, 302 (Fla. 4th DCA 1991)("When the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts. In addition, no other or different facts will be presumed to exist.").
5 The "Investigator's Memo" was offered and received into evidence at hearing as Petitioner's Exhibit 5.
6 The transcript of this "probable cause panel proceeding" was offered and received into evidence at hearing as Petitioner's Exhibit 6.
7 See pages 3 and 4 of Petitioner's Exhibit 6.
8 See page 5 of Petitioner's Exhibit 6.
9 Mr. Tomasino was a member of the probable cause panel.
10 See pages 5 through 7 of Petitioner's Exhibit 6.
11 See pages 9 and 10 of Petitioner's Exhibit 6.
12 Mr. Seckinger was the third and final member of the probable cause panel.
13 Mr. Sunshine was another attorney for Respondent.
14 See pages 11 through 13 of Petitioner's Exhibit 6.
15 See pages 14 and 15 of Petitioner's Exhibit 6.
16 See page 17 of Petitioner's Exhibit 6.
17 See page 19 of Petitioner's Exhibit 6.
18 See page 20 of Petitioner's Exhibit 6.
19 See pages 21 through 23 of Petitioner's Exhibit 6.
20 This Administrative Complaint was offered and received into evidence at hearing as Petitioner's Exhibit 7.
21 In concluding that the Administrative Complaint alleged that Mr. Huang "was acting as The Pool People's employee," the undersigned construed the term "employed," as used in the Administrative Complaint, more narrowly than he could have. See Economic Research Analysts, Inc. v. Brennan, 232 So. 2d 219, 221 (Fla. 4th DCA 1970)("Subsection (2) provides that ' . . . One who is employed as an agent or employee may agree with his employer . . . ." The use of the word 'employed' in this context does not mean that the agent is thereby, ipso facto, in an 'employer-employee' relationship, but the word is used and should be construed in a broader sense as referring to one who is hired, or engaged or used as an agent. The term 'agent' necessarily contemplates the existence of a 'principal' and implies employment or service coupled with delegated authority to manage some affair for or on behalf of the principal and on his account, and to render an accounting of it."); see also Ellis v. Flink, 374 So. 2d 4, 5 (Fla. 1979)("The error of the courts below can be attributed to the fact that real estate brokers are frequently employed as the agents of sellers."); Rist v. Florida Power and Light Co., 254 So. 2d 540, 541-542 (Fla. 1971)("[P]laintiff was employed as an independent contractor by Northside to paint the light standards at the Northside Shopping Center in Miami . . . ."); Garcia v. Tarmac American, Inc., 880 So. 2d 807, 808 (Fla. 5th DCA 2004)("At the time of the incident, Garcia was employed as an independent contractor by Aggregates Division, a division of Tarmac and
Silversand."); Parker v. Sugar Cane Growers Co-Op, 595 So. 2d 1022, 1023 (Fla. 1st DCA 1992)("There is competent, substantial evidence (CSE) in the record supporting the JCC's determination that claimant was employed as an independent contractor by the newspaper and, as a consequence, no concurrent earnings from that employment should be included in her AWW."); Schoettle v. State, Department of Administration, Division of Retirement, 513 So. 2d 1299, 1303 (Fla. 1st DCA 1987)("I]t is the right of control over the details of the employee's work, including the right to hire and to fire, which is the principal consideration in determining whether one is employed as an independent contractor or as a servant."); and § 542.33(2)(a), Fla.
Stat.("[O]ne who is employed as an agent, independent contractor, or employee may agree with her or his employer ").
22 In an endnote, the undersigned observed:
"Whether one party is a mere agent rather than an independent contractor as to the other party is to be determined by measuring the right to control . . . ." Parker v.
Domino's Pizza, 629 So. 2d 1026, 1027 (Fla. 4th DCA 1993). "Generally, a contractor is not a true agent where the principal controls only the outcome of the relationship, not the means used to achieve that outcome." Theodore v. Graham, 733 So. 2d 538, 539 (Fla. 4th DCA 1999)."
Although the undersigned relied on these cases to conclude that that engineers hired as independent contractors cannot be, at the same time, agents of the hiring entity, there is case law supporting a contrary view. See, e.g., Smith v. Mayes, 851 So. 2d 785, 787 (Fla. 1st DCA 2003)("The Restatement (Second) of Agency § 1, Comment e (2003), states that an agent who is employed by a principal and whose physical conduct in the performance of the service is subject to the right of control by the principal is called a 'servant,' while an agent who is not subject to the principal's right of control with regard to his or her physical conduct is considered an 'independent contractor.'"); Stoll v. Noel, 694 So. 2d 701, 703 (Fla.
1997)("The Restatement (Second) of Agency § 14N (1957) explains that the roles of agent and independent contractor are not mutually exclusive: 'One who contracts to act on behalf of another and subject to the other's control except with respect
to his physical conduct is an agent and also an independent contractor. Comment: Most of the persons known as agents, that is, brokers, factors, attorneys, collection agencies, and selling agencies are independent contractors . . . since they are contractors but, although employed to perform services, are not subject to the control or right to control of the principal with respect to their physical conduct in the performance of the services. However, they fall within the category of agents.'"); Nazworth v. Swire Florida, Inc., 486 So. 2d 637, 638 (Fla. 1st DCA 1986)("In arguing against independent contractor status, Appellant relies, in part, upon the fact that the management agreement refers to Consultants as 'Agent.' But such reference is of no moment. As pointed out in Restatement (Second) Agency 2nd Section 14N: 'Section 14 N. Agent and Independent Contractor. One who contracts to act on behalf of another and subject to the other's control except with respect to his physical conduct is an agent and also an independent contractor.'"); State Police Association v. Commissioner, 125 F.3d 1, 7 (1st Cir. 1997)("[A]n independent contractor can be an agent if, and to the extent that, the contractor acts for the benefit of another and under its control in a particular transaction"); Reginald Martin Agency, Inc. v. Conseco Medical Insurance Co., 388 F. Supp. 2d 919, 928 (D. Ind. 2005)([W]hether they are independent contractors does not, necessarily, mean that they are not agents as well."); Wiggs v. City of Phoenix,
10 P.3d 625, 628 (Ariz. 2000)("While it is always the case that an independent contractor is not a servant, it is not always the case that an independent contractor is not an
agent. . . . Examples abound. . . . In each of these instances, the agent is an independent contractor. The client (principal) instructs the independent contractor (agent), on what to do, but not how to do it. That is what distinguishes an independent contractor from an employee. Just as employees are a species of agents, so, too, are many independent contractors."); and Dvorak v. Matador Service, Inc., 223 Mont.
98, 104 (Mont. 1986)("[C]learly a subcontractor is an agent of the contractor (principal) for purposes of performing work which the contractor had agreed to perform for the owner (third party).").
23 Even if the undersigned were free to "change the plain meaning of [Subsection (3)(d)1.b. of the] statute by turning to legislative history," no legislative history has been brought to his attention to indicate that the Legislature did not mean what it said in this statutory provision.
24 After citing these cases in its Proposed Final Order, Respondent observed:
There appears to be only one case in which an Administrative Law Judge has taken the contrary opinion Royce v. Agency
for Health Care Administration, WL 1059930 (Fla. Div. Admin Hrgs., 1996).
The undersigned is the "Administrative Law Judge [who] has taken th[is] contrary opinion." In his Final Order in Royce, he stated, in pertinent part:
The Agency argues that "Petitioner has not established that his professional practice is a small business party within the meaning of Section 57.111, Florida Statutes, because he has not established his net worth was less than $2 million at the time the proceedings were initiated." It is true that Petitioner has "not established his net worth was less than $2 million at the time the [underlying administrative] proceedings were initiated." This, however, is of no significance given that Petitioner has established (by a preponderance of the evidence) that, at the time of the initiation of the underlying administrative proceeding, his practice had "not more than
25 full-time employees." In order to qualify as a "small business party," as defined in subsection (3)(d)1.a of Section 57.111, Florida Statutes, a sole proprietor, like Petitioner, need not prove that his practice had both "not more than 25 full- time employees" and "a net worth of not more than $2 million" when the underlying administrative proceeding was initiated.
The undersigned stands by this holding.
25 Although the instant case deals with Subsection (3)(d)1.b., not Subsection (3)(d)1.a., the pertinent language of the two subsections is virtually identical.
26 The Florida Supreme Court in Daniels actually suggested that Section 57.111, Florida Statutes, was generally patterned after, not 28 U.S.C. § 2412, but rather 5 U.S.C. § 504, which in 1984 provided, in pertinent part, as follows:
(a)(l) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency as a party to the proceeding was substantially justified or that special circumstances make an award unjust.
* * *
(b)(l) For the purposes of this section--
* * *
(B) 'party' means a party, as defined in section 551(3) of this title, which is an individual, partnership, corporation, association, or public or private organization other than an agency, but excludes (i) any individual whose net worth exceeded $1,000,000 at the time the adversary adjudication was initiated, and any sole owner of an unincorporated business, or any partnership, corporation, association, or organization whose net worth exceeded $5,000,000 at the time the adversary adjudication was initiated, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association, and
(ii) any sole owner of an unincorporated business, or any partnership, corporation,
association, or organization, having more than 500 employees at the time the adversary adjudication was initiated; . . .
See also Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So. 2d 715, 717 (Fla. 1st DCA 1989)("We have previously observed that the FEAJA is generally modeled after its federal counterpart (the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (1980)) and that it will take the same construction in the Florida courts as its prototype has been given in the federal courts, insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. Section 504(a)(1) of the EAJA, similar to Section 57.111(4)(a), Florida Statutes, provides: '(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other 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.'")(citation omitted); and Gentele v. Department of Professional Regulation, Board of Optometry, 513 So. 2d 672, 673 (Fla. 1st DCA 1987)("The FEAJA is modeled after the Equal Access to Justice Act, 5 U.S.C. Section 504.").
27 "Generally, all parts of [a] statute must be read together." See Montgomery v. State, 897 So. 2d 1282, 1286 (Fla. 2005).
28 Under the "doctrine of the last antecedent," the qualifying phrase in Subsection (2), "practicing under a fictitious name," modifies the immediately preceding words ("other person"), not any other words in the subsection (including "business organization"). See City of St. Petersburg v. Nasworthy, 751 So. 2d 772, 774 (Fla. 1st DCA 2000)("Such a presumption would be at odds with the 'doctrine of the last antecedent,' which provides that relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote. Accordingly, we conclude that the phrase 'not to exceed the maximum weekly benefit under s. 440.12' was intended to refer to the immediately preceding phrase, 'the employee's average weekly temporary total disability benefit.')(citations omitted); and Southeastern Staffing Services., Inc. v. Florida Department of Insurance, 728 So. 2d 248, 250 (Fla. 1st DCA 1998)("A basic rule of statutory construction, 'the doctrine of the last antecedent,' supports
the latter interpretation. Under that doctrine, qualifying words apply to the immediately preceding word rather than to other words more remote.").
29 At all material times, "[l]icense," as used in Chapter 471, Florida Statues, has been defined as "the licensing of engineers or certification of businesses to practice engineering in this state." § 471.005(8), Fla. Stat.
30 At all material times, Section 471.003(2)(i), Florida Statutes, has granted such an exemption to "[a]ny general contractor, certified or registered pursuant to the provisions of chapter 489, when negotiating or performing services under a design-build contract as long as the engineering services offered or rendered in connection with the contract are offered and rendered by an engineer licensed in accordance with this chapter." Pool contractors have not been granted a similar statutory exemption.
COPIES FURNISHED:
William R. Clayton, Esquire Jerold I. Budney, Esquire Greenberg Traurig, P. A.
East Las Olas Boulevard, Suite 2000 Fort Lauderdale, Florida 33301
Paul J. Martin, Executive Director Florida Board of Professional Engineers 2507 Calloway Road, Suite 200
Tallahassee, Florida 32303-5267
Ned Lucynzski, General Counsel Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Patrick Creehan, Esquire Chief Prosecuting Attorney
Florida Engineers Management Corporation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303-5267
Julie Gallahgher, Esquire Greenberg Tauring, P. A.
101 East College Avenue Tallahassee, Florida 32302
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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 19, 2007 | DOAH Final Order | Respondent met burden of proving that it was substantially justified in initiating prosecution of an unlicensed practice of engineering charges against a "prevailing small business party." No fees are awarded. |
