STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WELLER ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-3928F

) STATE OF FLORIDA, DEPARTMENT ) OF LABOR AND EMPLOYMENT )

SECURITY, DIVISION OF ) UNEMPLOYMENT COMPENSATION, )

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of respondent's motion to strike petitioner's amended application for attorney's fees and costs, here construed as a motion to dismiss.

STATEMENT OF THE CASE

1. Petitioner, Weller Enterprises, Inc. (Weller), has filed an application for attorney's fees and costs against respondent, State of Florida, Department of Labor and Employment Security, Division of Unemployment Compensation (Department), pursuant to Section 57.111, Florida Statutes.

   
   

2. Section 57.111, Florida Statutes, provides in pertinent part:

(2) The Legislature finds that certain persons may be deterred from

seeking review of, or defending against, unreasonable governmental action because of the expense of civil actions and administrative proceedings. Because of the greater resources of the state, the standard for an award of attorney's fees and costs against the state should be

a 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, a or defending against, governmental

action by providing in certain situations an award of attorney's fees and costs against the state.

(3) As used in this section:

(b) The term "initiated by a state agency" means that the state agency:

1. Filed the first pleading in any state or federal court in this state;

2. Filed a request for an administrative hearing pursuant to chapter 120; or

3. 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

(e) A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by a state agency.

(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. No award of attorney's fees and costs shall be made in any case in which the state agency was a nominal party.

1. Here, Weller's claim for attorney's fees and costs against the Department, as set forth in its application and amended application for fees and costs, is founded on a claim for unemployment compensation filed by Stewart Vitcov, claimant, against Weller, as the employer, with the Department. According to Weller's application for fees and costs, Vitcov's claim for unemployment compensation was initially denied by the Department, and on Vitcov's appeal of that decision to an appeal's referee the initial decision to deny Vitcov's claim for benefits was upheld. Other than providing the forum mandated by Section 443.151, Florida Statutes, to resolve unemployment compensation disputes, the Department had no other involvement in the dispute originated against Weller by Vitcov.

   
   

2. Under the facts as alleged in Weller's application and amended application for fees and costs, the Department was, at the most, a nominal party since it provided the forum mandated by law. As importantly, the Department did not initiate any administrative proceeding pursuant to Chapter 120.

   
   

   CONCLUSION

   
   

3. Accepting as true the allegations of fact set forth in the application and amended application for attorney's fees and costs filed by Weller, it is concluded that it has failed as a matter of law to demonstrate entitlement to such fees and costs under the provisions of Section 57.111, Florida Statutes.

Accordingly, it is

ORDERED that the Department's motion is granted, and the application and amended application for attorney's fees and costs filed by Weller are dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of September 1989.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September 1989.

COPIES FURNISHED:

ALBERT W. GUFFANTI, ESQUIRE COCONUT GROVE BANK BUILDING SUITE 305

2701 SOUTH BISCAYNE DRIVE MIAMI, FLORIDA 33133

KAREN KUGELL, ESQUIRE

108 N.E. 1ST STREET

FORT LAUDERDALE, FLORIDA 33301

HUGO MENENDEZ, SECRETARY DEPARTMENT OF LABOR AND SECURITY BERKELEY BUILDING, SUITE 200

2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152

STEPHEN BARRON, GENERAL COUNSEL DEPARTMENT OF LABOR AND SECURITY

131 MONTGOMERY BUILDING

2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 89-003928F

Orders for Case No: 89-003928F