STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALPHA SEPTIC INDUSTRIES, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 92-5096F

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on May 19, 1994, in Sebring, Florida.

APPEARANCE

For Petitioner: James F. McCollum, Esquire

129 South Commerce Avenue Sebring, Florida 33870

For Respondent: Jack Emory Farley, Esquire

Department of Health and Rehabilitative Services

2020 East Georgia Street Bartow, Florida 33830

STATEMENT OF THE ISSUE

Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?

PRELIMINARY STATEMENT

The Petitioner Alpha Septic Industries Inc. (ASI) filed an Application For Attorney's Fees requesting the award of attorney's fees under Sections 57.111 and 120.57(1)(b)(10), Florida Statutes, with the Division of Administrative Hearings (Division) on August 24, 1992. The Respondent Department of Health and Rehabilitative Services (Department) filed its Response To ASI's Application For Attorney's Fees on September 14, 1992. The Department's response to ASI's application was treated as Motion To Dismiss. On December 2, 1992, an Order was entered granting the Department's Motion To Dismiss ASI's application concerning the request for attorney's fees under Section 120.57(1)(b)(10), Florida Statutes. The basis for granting that part of the Department's motion was that Section 120.57(1)(b)(10), Florida Statutes, among other things, provides for the award of attorney's fees on the appellate level and only the appellate court has the authority to award attorney's fees under that section of the statute. The balance of the Department's Motion to Dismiss was denied. The hearing officer

initially assigned to this matter scheduled a hearing in this matter for January 31, 1994, but on a Joint Motion For Continuance filed by the parties the hearing was cancelled. Afterwards, the matter was assigned to this hearing officer who scheduled a hearing for May 19, 1994. At the hearing, Department presented the testimony of Paul Poore, James (Jim) B. Fisher, Edward Dixon and Raymond Deckert. Department's exhibit 1 was received as evidence. ASI's exhibit 1 was received as evidence. Joint Composite exhibit 1 was received as evidence.

The transcript of this proceeding was filed with the Division on June 9, 1994. The parties requested and were granted an extension of time for filing their proposed findings of fact and conclusions of law with the understanding that any time constraint for the entry of a final order imposed under Rule 28- 5.402, Florida Administrative Code, was waived in accordance with Rule 60Q- 2.031(2), Florida Administrative Code. The parties timely filed their proposed final orders with the Division under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Final Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

Stipulated Facts:

1. The action in this case was initiated by the Department, a state agency. The Department was not a nominal party.

   
   

2. ASI has incurred attorney's fees and costs in amount of $13,178.00 in defending the administrative proceeding brought against it in Department of Health and Rehabilitative Services v. Alpha Septic Industries, Inc., Case No. 91-0044. There is no dispute as to the reasonableness of the attorney's fees and costs. The attorney's fees and costs are as follows:

   
   

   James F. McCollum 62.4 hrs at $150/hr= $ 9,360 Gary R. Gossett 22.7 hrs at $100/hr= $ 2,270 Para Legal 7.4 hrs at $ 40/hr= $ 296 Costs $ 1,252

   Total $13,178

   
   

3. There are no special circumstances which would make an award of attorney's fees and costs unjust.

   
   

4. ASI is a corporation organized under the laws of the State of Florida, whose principal office is in Sebring, Florida and at all times material to this proceeding had not more than 25 full-time employees or a net worth of not more than $2 million. ASI is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes.

   
   

5. The appellant court in Alpha Septic Industries, Inc., v. Department of Health and Rehabilitative Services, Case No. 91-03249, 2nd District Court of Appeal, reversed the final order entered by the Department in Department of Health and Rehabilitative Services v. Alpha Septic Industries, Inc., Case No. 91-0044, against ASI. That order was not appealed by the Department. ASI is a "prevailing small business party" as that term is defined in Section 57.111(3)(c), Florida Statutes.

6. The action was commenced by the filing of an Administrative Complaint against Mr. Paul Poore d/b/a Alpha Septic Industries, Inc. on April 4, 1990. By an agreement reached during a hearing before a circuit judge, the original Administrative Complaint was amended on November 15, 1990 to delete Mr. Paul Poore from the Administrative Complaint.

   
   

   Facts Not Stipulated:

   
   

7. Both the initial Administrative Complaint and the Amended Administrative Complaint allege that ASI violated Section 381.031(1)(g) Florida Statutes, and Rule 10D-6.055(2)(b), Florida Administrative Code, in that a septic tank manufactured by ASI, and serving 3727 Thunderbird Hill Circle, Sebring, Florida, was measured by the Department and found to be below the minimum thickness required by Rule 10D-6.055(2)(b), Florida Administrative Code. The complaint further alleges that the Department's measurements had been taken in three different places and found to be 0.162", 0.147" and 0.157" which were below the 0.187" minimum thickness required by the rule.

   
   

8. The initial Administrative Complaint was signed by Kevin Sherin, M. D., Director, HRS-Highlands County Public Health Unit, the governmental entity charged with the responsibility of enforcing the Florida septic tank regulations. Dr. Sherin has the authority to authorize the filing of an Administrative Complaint and the responsibility of assuring that the complaint is valid. When Dr. Sherin authorized and signed the initial Administrative Complaint he was aware of the following facts:

   
   

   1. A complaint had been filed by Curtis Haberline, President, Thunderbird Homeowner's Association, on September 12, 1989, alleging that a fiberglass septic tank installed at 3727 Thunderbird Hill Circle, Sebring, Florida had "caved inwards".

      
      

   2. The 1050 gallon fiberglass septic tank had been installed by Dan Young, licensed septic tank contractor.

      
      

   3. Young recalled that all of the fiberglass septic tanks installed in Thunderbird Hill Village I, where this particular septic tank was installed, had been purchased and picked up from ASI.

      
      

   4. During the installation of the septic tank, Edward Dixon, Inspector, HRS-Highlands County Public Health Unit was on the site and inspected the septic tank installed by Young. The installation was approved on May 24, 1984. The tank was not measured for wall thickness at the time of the installation. Dixon did not recollect noticing any readily visible thin spots in the tank when he inspected it during installation.

      
      

   5. In response to the complaint, Edward Dixon visited the site on September 14, 1990 and inspected the septic tank then in place and the area surrounding the septic tank. Dixon drilled and removed a plug approximately one inch in diameter from a randomly selected area (not in the "caved-in part) on top of the septic tank. After Dixon removed the plug, he measured the tank's wall thickness around the drilled plug site with a micrometer. The tank wall thickness around the drill plug site measured between 0.140" and 0.150". The plug was taken to James B. Fisher.

      
      

   6. Neither Edward Dixon nor James B. Fisher, who was an employee of HRS- Highlands County Public Health Unit and also inspected the septic tank after the complaint was filed, recollect seeing any information on the tank that

      identified the manufacturer or the date of manufacture. However, there was no reason to suspect that the tank had been replaced since the life expectancy of a fiberglass tank is much longer than six years.

      
      

   7. Fisher measured the plug at three different locations with a micrometer. Those three measured thicknesses of the plug were 0.147", 0.157" and 0.162". The micrometer used by Fisher had been checked for accuracy, and found to be accurate within 0.0002". Three sixteenths of an inch is equal to 0.1875".

      
      

   8. The "caved in" portion of the tank appeared to have resulted from being impacted by a heavy weight, i.e., heavy equipment. The tank was not cracked and it did not appear that the "caving-in" had resulted from the tank being below specifications on wall thickness.

      
      

   9. There was no evidence that heat, light or caustic chemicals had affected the condition of the tank, i.e. wall thickness.

      
      

   10. ASI was on the State of Florida list of approved septic tank manufacturers.

       
       

   11. On October 10, 1989, ASI was advised of the complaint and requested to correct the alleged deficiency. ASI declined to take any action.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

10. Pertinent to this case, 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 an 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 exists which would make the award unjust.

    
    

11. The parties have stipulated that the only remaining issue to be decided in this proceeding is whether the actions of the Department in filing the Administrative Complaint were substantially justified.

    
    

12. Section 57.111(3)(e), Florida Statutes, provides:

    
    

    (e) A proceeding is "substantially justified" if it has a reasonable basis in law and in fact

    at the time it was initiated by a state agency. (E.S).

    
    

13. The parties having stipulated that the only issue remaining to be resolved in this proceeding was whether the Department was substantially justified in initiating this proceeding, the burden shifted to the Department to establish that it was substantially justified in initiating the underlying

    action. Department of Professional Regulation v. Toledo Realty, 549 So.2d 715 (1st DCA Fla. 1989).

    
    

14. While the Florida Equal Access To Justice Act (FEAJA) was patterned after the Federal Equal Access To Justice Act (Federal Act), the construction placed on the FEAJA by the courts has been that it will take the same construction in the Florida courts as its prototype has been given in federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. Gentele, O. D. v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672, 673 (1st DCA Fla. 1987); Pasco County School Board v. Florida Public Employees Relations Commission, 353 S.2d 108, 116 (1st DCA Fla. 1977). Unlike the Federal Act, Section 57.111(4)(a), Florida Statutes, provides that an award of attorney's fees shall be made unless the actions of the agency had a reasonable basis in law and fact (substantially justified) at the time they were initiated, not for subsequent aspects of a proceeding where the agency's position has been determined to be no longer justified. Frederick Mann, D.D.S. v. Department of Professional Regulation, Board of Dentistry, Case No. 91-7865F (April 10, 1992); Brown v. Department of Professional Regulation, Board of Psychological Examiners, 13 F.A.L.R. 3444, 3451 (August 2, 1991). Therefore, for the Department to show that it was substantially justified in bringing this action against ASI, it must show that the Department's actions had a reasonable basis in law and in fact at the time Dr. Sherin issued the Administrative Complaint against ASI. The Department has met its burden in that regard.

    
    

15. Certainly, Dr. Sherin is allowed to rely on his employees to advise him in these matters and, unless there is some showing that Dr. Sherin had reason to not believe those employees then he should be allowed to rely on their advice.

    
    

16. Rule 10D-6.55(1)(b), Florida Administrative Code, requires that fiberglass tanks with an effective liquid capacity of not over 1500 gallons have a minimum wall thickness of one-quarter inch but allows a wall thickness of not less than three-sixteenths inch in small isolated areas of the tank. The thickness of the tank wall at the top of the tank was less than three-sixteenths inch. Therefore, unless something had intervened after the installation of the tank to reduce the wall thickness, there was a violation of the rule by ASI. However, if the original tank had been replaced by another tank from a different manufacturer after being installed, then there would have been no violation by ASI. The Department had no reason to believe that a tank installed in a residential area had been subjected to adverse conditions or caustic chemicals which would have affected the thickness of the tank. Admittedly, neither Dixon nor Fisher remembered seeing any identification on the tank that would identify it as being one manufactured by ASI. However, the Department had no reason to suspect that the tank manufactured by ASI and installed by Young had been replaced within approximately six years by a tank manufactured by another fiberglass tank manufacturer when the normal life expectancy of a fiberglass tank is much longer. The evidence available to Dr. Sherin was sufficient to establish a reasonable basis in law and fact that the tank was in violation of the rule and that the tank had been manufactured by ASI.

Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly,

ORDERED that Petitioner Alpha Septic Industries, Inc.'s Application For Attorney's Fees pursuant to Section 57.111, Florida Statutes, is denied.

DONE AND ORDERED this 19th day of December, 1994, in Tallahassee, Florida.

WILLIAM R. CAVE

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 December, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 92-5096F

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner ASI's Proposed Findings of Fact:

1. Proposed findings of fact 1 through 53 are adopted in substance as modified in Findings of Fact 1 through 8(a)-(k) in the Final Order. Otherwise, they are not supported by evidence in the record, or are unnecessary, subordinate, immaterial, irrelevant, redundant or repetitious.

Respondent Department's Proposed Findings of Fact:

The Department did not present any proposed findings of fact per se but presented what it has entitled "Department's Argument". However, there are "sprinklings" of proposed facts scattered throughout its argument. Those facts are adopted in substance as modified in Findings of Fact 1 through 8(a)-(k) in the Final Order. Otherwise, they are not supported by the evidence in the record, or are unnecessary, subordinate, immaterial, irrelevant, repetitious or redundant.

COPIES FURNISHED:

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0792

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0792

James F. McCollum, Esquire

129 South Commerce Avenue Sebring, Florida 33870

Jack Emory Farley, Esquire Department of Health and

Rehabilitative Services 2020 East Georgia Street Bartow, Florida 33830

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 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: 92-005096F

Orders for Case No: 92-005096F