STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM L. McCALLISTER, )
)
Petitioner, )
)
vs. ) CASE NO. 87-0724F
) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )
)
Respondent. )
)
FINAL ORDER
By Petition for Award of Attorneys Fees and Costs dated February 20, 1987, William L. McCallister, Petitioner, seeks award of attorney's fees and costs as prevailing party in license revocation proceedings brought against him by the Department of State, Division of Licensing, in DOAH Case No. 86-1480.
This case was scheduled to be heard May 7, 1987; however, prior thereto, the parties submitted a stipulation waiving an evidentiary hearing. Applicable facts in this stipulation are included in the findings below. Both parties submitted proposed recommended orders with proposed findings. All of these proposed findings are accepted even though the parties did not submit identical proposed facts. The findings below were taken from the Stipulation and the facts found by this Hearing Officer in Case No. 86-1480 which were adopted by the parties in the aforesaid stipulation.
Two issues are raised in these proceedings:
Whether William A. McCallister qualifies as a small business party as defined in Section 57.111(3)(d), Florida Statutes, and
Whether the actions of the Department of State in Case No. 86-1480 were substantially justified.
FINDINGS OF FACT
William L. McCallister was the Respondent in Dept. of State, Division of Licensing vs. William L. McCallister, DOAH Case No. 86-1480.
The Department of State, Division of Licensing, initiated Case No. 86- 1480. In that action, the Department of State sought to revoke the detection of deception examiner's license of William L. McCallister. It also entered an emergency order of suspension.
William L. McCallister was the prevailing party in DOAH Case No. 86- 1480.
The total value of reasonable attorney's fees and costs in this proceeding is $15,000.
The Department of State was not a nominal party in these proceedings.
During 1985, William L. McCallister was the sole owner of McCallister Polygraph Service, Inc. During 1985, he was employed by the Polk County Sheriff's office as a sworn officer serving as Staff Polygraphist. When he conducted the polygraph examinations of the three complaining witnesses in DOAH Case No. 86-1480, he did so in fulfillment of his duties as Staff Polygraphist.
McCallister Polygraph Service, Inc. was not a party in DOAH Case No. 86-1480.
Prior to initiating proceedings in DOAH Case No. 86-1480, the Department of State conducted an adequate factual investigation of the allegations by Phyllis Langdale, Rose Giannotti, and Joanne Meyer.
The evidence presented at final hearing regarding standards applied by the Department to detection of deception examiners in disciplinary proceedings describes the standards in effect at the time the complaint was filed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 57.111(4)(a), Florida Statutes, provides:
Unless otherwise provided by law, an award of attorney's fees and costs, shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency, unless the actions of the
state agency were substantially justified or special circumstances exist which would make the award unjust.
Section 57.111(3)(d), Florida Statutes, defines "small business party"
as:
A sole proprietor or 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 the state agency, not more than 25 full-time employees or a net worth of not more
than $2 million.
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 and a net worth of not more than
$2 million.
McCallister Polygraph Service, Inc. met the size and net worth requirements at the time the action against McCallister was initiated. However, the action was initiated by the Department against William L. McCallister as a licensed detection of deception examiner--not against the business entity which had been incorporated. At the time the charges were filed, McCallister was a full-time employee of the Polk County Sheriff as a sworn officer serving as Staff Polygraphist. To determine whether he qualifies as a small business party, all provisions of Section 57.111, Florida Statutes, must be considered with applicable canons of statutory construction.
Looking to this statutory language, the legislative intent appears to be contained in s. 57.111(2) which provides:
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 attorneys' 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.
Confusion is introduced by the use of the term "small business party" even though this term is defined by the Legislature as noted above. Situs, size and net worth requirements are met here so the sole issue remaining for determination is the interpretation of "sole proprietor ... including a professional practice" and "corporation, including a professional practice."
It is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of this statute as a whole. From a review of the whole law in para materia, the Court will determine legislative intent. State vs. Gale Distributors, 349 So.2d 150 (Fla. 1977).
In statutory construction legislative intent is determined primarily from the language of the statute; and the Legislature is assumed to know the meaning of words and to have expressed its intent by using them in the enactment. SRG Corp. vs. Dept. of Revenue, 365 So.2d 687 (Fla. 1978); Thayer vs. State, 335 So.2d 815 (Fla. 1976).
The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Product Safety Comm. vs. GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 760 (U.S. 1980).
In Gentele vs. Department of Professional Regulation, 9 FALR 310, 323 (DOAH, June 20, 1986). Dr. Gentele's practice as an optometrist was conducted as a professional corporation. Following a successful defense to charges
brought by the State to discipline his license, Dr. Gentele brought proceedings to recover attorney's fees and costs. In rejecting the State's contention that Dr. Gentele was not a "small business party," the Hearing Officer stated:
This contention is rejected since construction leading to a result obviously not intended by the Legislature should be avoided. City of St. Petersburg vs. Seibold,
48 So. 291 (Fla. 1950). Most professional licenses are issued to persons who seek
to operate a professional practice. Any subsequent license revocation proceedings are constituted against that person's license. The literal construction urged by
the Department would make FEAJA [Florida Equal Access To Justice Act] inapplicable to persons operating a professional practice under a corporate form of business and conflict with clear legislative intent that the Act applied to all professional practices below a specified size, regardless of organizational form. (Emphasis in original)
It is clearly the legislative intent, from the language used in s.
57.111 that a sole practitioner, with a net worth not exceeding $2 million, either incorporated or not, offering his services to the general public, would qualify as a "small business party" if disciplinary proceedings against his license was instituted against the State.
However, if this practitioner was, for example, a salaried employee on the staff of a hospital or a doctor employed on a salary basis by a Health Maintenance Organization would he still qualify as a "small business party" when license revocation proceedings for malpractice were instituted against his license for acts committed during the course of his employment? Assuming that neither this hospital nor the HMO qualified as a small business because of number of employees or net worth, how could the salaried employee qualify as a "small business party" if the State initiated action to revoke his license?
If the phrase "including a professional practice" is interpreted to include when engaging in the practice of a profession, this anomaly disappears. This is a reasonable interpretation of s. 57.111(3)(d), to find a small business party to include an unincorporated professional practice or a professional practice which is part of a partnership or corporation.
In statutory construction, legislative intent is the pole star by which courts must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well-settled canons of construction. Wakulla County vs. Davis, 395 So.2d 540 (Fla. 1981). Similarly, as noted by the First District Court of Appeal, a literal interpretation of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion. Such a departure from the letter of the statute is permissible only when there are cogent reasons for believing that the letter of the law does not accurately disclose the legislative intent. Shell Harbor Group vs. Division of Alcohol, Beverages and Tobacco, 487 So.2d 1141 (Fla. 1st DCA 1986).
It is, therefore, concluded that William L. McCallister was a "small business party" and is qualified to bring this action for attorney's fees and costs as the prevailing party.
The next issue to be considered is whether the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. No special circumstances were alleged so the single issue remaining is whether the State was substantially justified in initiating the administrative complaints against McCallister in DOAH Case No. 86-1480.
Section 57.111(3)(e), Florida Statutes, provides: 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.
While there are few cases interpreting this statutory provision, reference to the federal Equal Access To Justice Act (EAJA), 5 U.S.C., sec. 504,
28 U.S.C., sec. 2412, upon which the Florida EAJA was based is somewhat helpful. Without citing cases it is fair to say that the standard to be used in determining when fees may be awarded under the Florida EAJA is between the complete absence of justiciable issue standards of sec. 57.105, Florida Statutes, See State Department of Health and Rehabilitative Services vs. Carr,
501 So.2d 30 (Fla. 2nd DCA 1986) and an automatic award of fees to a prevailing party.
The overriding purpose of the federal EAJA was to remove economic deterrents to contesting government action and to discourage government agencies from coercing compliance with regulation which may not otherwise be adequately contested. H.R. Rep. No. 1418, 96th Cong. 2d Sec. 6. (1980). Many if not most of the cases arising from the federal EAJA are those involving environmental cases, disability claims, and various welfare-type benefits. As noted above, the purpose of the Florida EAJA is to diminish the deterrent effect of seeking review of, or defending against, government action (s. 57.111(2)).
Thus, In a disciplinary case against one's license, the test of reasonableness is measured against different elements than are appropriate for an environmental case or where a party is denied retirement benefits.
Most discipline cases in Florida are brought by the Department of Professional Regulations (DPR) since most professions come under the aegis of that Department. Section 455.225, Florida Statutes, establishes various procedural steps the DPR shall follow in disciplining various licensees. That section generally provides the Department shall cause to be investigated any complaint made in writing, if the complaint is legally sufficient; may investigate a complaint made anonymously; shall expeditiously investigate complaints; upon completion of the investigation the Department shall prepare and submit to the probable cause panel of the appropriate board the investigator report with recommendations of the Department concerning the existence of probable cause; a probable cause determination shall be made by the probable cause panel or by the Department; and, if probable cause is found, charges are preferred and disciplinary action is instituted.
Legislative intent is the pole star by which those interpreting statutes must be guided. Wakulla Co. vs. Davis, supra. It is inconceivable that the legislature would intend a different standard to be used in taking
disciplinary action against a licensee regulated by the Department of State than is used in a proceeding involving a profession regulated by DPR. Hence, the use of the analogy to Chapter 455.
Here, the Department conducted an investigation which the parties stipulated was adequate. Whether or not an investigative report was prepared the Department had sworn statements from three women alleging that Petitioner had strayed well beyond the ethical standards required of a polygraph examiner. Furthermore, the Sheriff had fired Petitioner from his position as Staff Polygraphist for the Polk County Sheriff's Department presumably for the conduct for which the three women had complained.
Although the Department had no rule proscribing the alleged conduct of Petitioner and did a relatively poor job of explicating this non-rule policy, even Petitioner's expert witness testified that the alleged conduct, if proved, was unacceptable behavior and well below the standards required of a polygraph examiner.
In short, probable cause for the charge contained in the Administrative Complaint existed and the Department had a reasonable basis in law and fact at the time the charges were preferred. Accordingly, the actions of the Department of State were substantially justified and Petitioner is not entitled to an award for attorney's fees and costs. It is,
ORDERED THAT the Petition of William L. McCallister for an award of $15,000 as attorney's fees and costs be DENIED.
DONE and ORDERED this 15th day of June, 1987, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1987.
COPIES FURNISHED:
Kenneth J. Plante, Esquire Senior Attorney
Department of State
The Capitol, Room LL-10 Tallahassee, Florida 32399-0250
John D.C. Newton, II, Esquire CARSON & LINN, P.A.
Mahan Station 1711 Mahan Drive
Tallahassee, Florida 32308
Honorable George Firestone Secretary of State Department of State
The Capitol
Tallahassee, Florida 32399-0250
| Issue Date | Proceedings |
|---|---|
| Jun. 15, 1987 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 15, 1987 | DOAH Final Order | Held polygraph operator qualified as small business party and action of department in bringing charges was substantially justified. |
