STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HITCHCOCK AND DRIVER )

ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-5973F

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on March 21, 1996, in Pensacola, Florida.

APPEARANCES

For Petitioner: Lawrence A. Kaden, Esquire

Post Office Box 12726 Pensacola, Florida 32575

For Respondent: Michael G. Moore, Esquire

Department of Labor and Employment Security Suite 307, Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

STATEMENT OF ISSUE

Whether the Petitioner is entitled to recover attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.

PRELIMINARY STATEMENT

This matter began on October 22, 1993, when Petitioner filed a Petition for Attorney's Fees and Costs in the amount of $2,993.75 in fees and $3,681.73 in costs. On November 10, 1993, the Respondent filed a Motion to Dismiss in part alleging that the Respondent had not initiated the underlying proceedings. By Order to Show Cause dated November 12, 1993, the Hearing Officer ordered the parties to show cause why the Petition should not be dismissed. Both parties responded to the Order to Show Cause. On March 8, 1994, after considering the responses to the Order to Show Cause, the Hearing Officer entered an Order of Dismissal dismissing the Petition on the basis that the underlying proceedings were exempt from Chapter 120 and that the underlying proceeding was not a proceeding before the Division of Administrative Hearings. On April 4, 1994, Petitioner appealed the Order of Dismissal to the First District Court of

Appeal. On April 6, 1995, in Hitchcock and Driver v. Department of Labor and Employment Security, 652 So. 2d 970 (Fla. 1st DCA 1995), the Court determined "that the hearing officer erroneously determined that an unemployment compensation proceeding under Section 443.141, Florida Statutes, is not an administrative proceeding conducted pursuant to Chapter 120, Florida Statutes." The Court then set aside the Order of Dismissal and remanded the case to the Hearing Officer for further proceedings. Id. at 971-972. Mandate was issued on April 6, 1995.

On May 3, 1995, Respondent filed a Response to the initial Petition alleging that the Petition and accompanying affidavits were not itemized as required by Section 57.111, Florida Statutes, that the attorney's fees requested were unreasonable, that costs requested were not taxable costs, that the actions of the Respondent were substantially justified, that an award of attorney's fees is unjust in this case, and that Respondent was a nominal party in the underlying proceedings.

By order dated September 18, 1995, the Hearing Officer set a final hearing in this matter for November 2, 1995. On Petitioner's request the final hearing was continued and rescheduled for March 21, 1996.

At the final hearing, Petitioner presented the testimony of three (3) witnesses and offered ten (10) exhibits into evidence. Additionally, the Petitioner submitted an Addendum to Petition requesting additional costs relating to the appeal of the Order of Dismissal dated March 8, 1994.

Petitioner also filed an Affidavit of Counsel itemizing counsel's fees and further requesting additional fees relating to the appeal of the Order of Dismissal. Respondent presented the testimony of three (3) witnesses and offered nine (9) exhibits into evidence.

The parties' filed Proposed Final Orders on May 10, 1996. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Final Order. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Final Order.

FINDINGS OF FACT

1. Petitioner, Hitchcock and Driver Enterprises, Inc., is a court reporting firm in Pensacola, Florida, employing less than 25 people and earning less than one million dollars. At the time relevant to this proceeding, the company is owned by Patricia Hitchcock and Denise Driver.

   
   

2. Respondent, Department of Labor and Employment Security, pursuant to Chapter 443, Florida Statutes, is the agency responsible for collecting unemployment compensation taxes from employers and administering the payment of those taxes to unemployed persons qualified to receive unemployment compensation. Additionally, the Department is responsible for establishing a system for determining tax liability of employers.

   
   

3. The program established by the Department for payment of claims must meet federal requirements which mandates that claims be paid to eligible claimants as fast as administratively feasible. Compliance with the federal standard has been established to require that, over a twelve month period, an average of 87 percent of all claims be paid within fourteen days after the claim is filed and 93 percent within 35 days after the claim is filed.

4. In light of the fast payment requirements established by the federal government, Respondent has established a system which simultaneously determines the payment of an employment claim and an employer's tax liability on written responses to a claimant's claim form, the database of employer reports maintained by Respondent, the Request for Reconsideration of Monetary determination, the Employee's Independent Contractor Questionnaire, the Employer's Independent Contractor Questionnaire and various other forms not relevant to this proceeding. Of necessity, these forms are generic in order to cover as many employment positions and businesses as possible.

   
   

5. The underlying proceedings in this case began on September 5, 1991, when Sarah Dukes, a former court reporter performing court reporter services for Petitioner, filed a claim for unemployment compensation benefits on form UCS-310 with the Pensacola office of Respondent.

   
   

6. In order to determine if Ms. Dukes was entitled to unemployment compensation, the Department reviewed its database to determine Ms. Dukes' employment history. The history is a compilation of employment reports filed by employers, as well as the taxes paid by each employer on behalf of each employee. The history is a factor in determining the amount of compensation to which Ms. Dukes' would be entitled.

   
   

7. The review revealed a discrepancy in the work history reported by Ms. Dukes' former employers and that claimed by Ms. Dukes. In general, Ms. Dukes' employer reports on the Department's database did not reflect her alleged employment by Petitioner.

   
   

8. In light of the discrepancy, Respondent requested Ms. Dukes to complete form UCB-13, which is a Request for Reconsideration of Monetary Determination, and form UCS-61, which is the Employee Independent Contractor Questionnaire.

   
   

9. In response to Dukes' claim, the Pensacola claims office of the Respondent began to investigate Dukes' claim and sent the UCB-13, Request for Reconsideration, via computer to its central office in Tallahassee. The central office designated Ms. Jessica Bruner, a field auditor in its Pensacola office, to investigate the employer and collect information which would enable the Respondent to determine whether Dukes was an employee or an independent contractor.

   
   

10. Sometime between September 12th through 15th of, 1991, Auditor Bruner mailed form UCS-60, Employer Independent Contractor Questionnaire, to the Petitioner at its office. At some point, Auditor Bruner visited Petitioner's office but was told by an employee of the Petitioner that Petitioner's owners did not have time to meet and complete the form because the owners were pressed by various court deadlines for transcripts. Petitioner's owners were unaware of the auditor's visit. Mailing the employer questionnaire to Petitioner was not the preferred procedure for handling presenting the employer questionnaire to an employer. The preferred procedure which is not mandated by rule is to hand deliver the questionnaire to the employer. However, given the auditor's later visit, this departure from a preferred procedure is not material in this case.

11. The instructions on the UCS-60, Employer Independent Contractor Questionnaire, state in part:

    
    

    1. [This form should be completed for ONE individual who is representative of the class of workers whose status is in question].

       When a written determination is desired for more than one class of workers, a separate Form UCS-60 should be completed for one worker

       from each class whose status is typical of that class. A written determination for any worker will be applicable to other workers of the same class, provided the facts are not materially different from those of the worker whose status was ruled upon.

       
       

    2. You will need to answer these items that do not have a 'Y' (Yes) or 'N' (No) to circle in comments with paragraphs numbered to correspond with the related items. [If any item does not apply to the services performed, enter the letters 'N/A' for 'not applicable' in the margin beside the item]. Responses should contain sufficient detail to explain the circumstances under which the worker performs services. [emphasis supplied].

       
       

12. After receiving the UCS-60, Employer Independent Contractor Questionnaire, Patricia Hitchcock completed the questionnaire on behalf of Petitioner. Neither she nor Ms. Driver attempted to contact any representative of the Respondent for any additional information or clarification of the questions posed by the Respondent on the questionnaire. Similarly, neither of Petitioner's owners consulted with the company's accountant before filling out the employer questionnaire.

    
    

13. Around September 17, 1991, the completed employer questionnaire was signed and returned to the Respondent with an employment agreement attached to the UCS-60.

    
    

14. The employment agreement was entered into between Sarah Dukes and the Petitioner on July 22, 1991, approximately 45 days prior to Sarah Dukes' claim for unemployment benefits. Throughout the employment agreement Sarah Dukes is referred to as an employee. The agreement uses the term "employee" fourteen times. The agreement does not use the term "independent contractor."

    
    

15. Petitioner's employment agreement was drafted by another employee of Petitioner from computer forms without the assistance of either an attorney or accountant. The computer program allegedly designated the form as one for hiring an independent contractor. However, the Respondent was unaware of the origins of the employment agreement utilized by Petitioner at the initiation of the underlying proceeding.

16. Just above Patricia Hitchcock's signature appears the following attestation:

    
    

    I have examined this questionnaire including accompanying documents, and to the best of my knowledge and belief, the facts presented are true, correct, and complete. I fully

    understand that the purpose of this question- naire is to secure the facts to render a determination on whether a worker is an employee or independent contractor.

    
    

17. Even though the form indicates otherwise, Petitioner's owners did not realize that the questionnaire would be the only opportunity to present Petitioner's side of the case before Respondent made a determination of Ms. Dukes' right to benefits and Petitioner's tax liability. Petitioner's owners assumed that there would be further contact from the Department.

    
    

18. The UCS-60 and the attached employment agreement were transmitted to the Respondent, Employer Status Section, Block Claims Unit, in Tallahassee for determination of Dukes' status as an employee or independent contractor, claim for benefits and tax liability of Petitioner.

    
    

19. In Tallahassee, Unemployment Compensation Examiner, Millie C. Gresham, reviewed the information from Ms. Dukes and Petitioner and on October 8, 1991, determined that Dukes was an employee of Petitioner. Petitioner was notified by mail of Respondent's determination.

    
    

20. As indicated earlier, the UCS-60 questionnaire is generic and some of the questions are more applicable to Petitioner's business than other questions. While most of Petitioner's answers to questions posed by the UCS-60 allowed the examiner to make inferences of equal weight, i.e. that Dukes was an employee or an independent contractor, questions from section II, numbers 1.(h), 1.(h)(3), 2.(e), 2.(f) and 2.(l), of the questionnaire carry more weight than other questions. Petitioner's answers to these more critical questions indicate that Sarah Dukes was an employee and not an independent contractor.

    
    

21. Moreover, the employment agreement indicates that Sarah Dukes was an employee of Petitioner. Paragraph 5 of the employment agreement states that Sarah Dukes could not directly or indirectly or in any capacity be employed by or work on behalf of any firm in competition with Petitioner. A reasonable interpretation of the language of paragraph 5 is that Sarah Dukes contractually agreed to give up her right to be an independent contractor.

    
    

22. On the other hand, Ms. Dukes' claim for unemployment compensation benefits and her answers to questions posed by the form UCS-61, Workers Independent Contractor Questionnaire, consistently indicate that she was an employee of the Petitioner and not an independent contractor. There was some discrepancy between the answers given by Ms. Dukes on her questionnaire and Petitioner on its questionnaire. However, under the Department's system of administration this discrepancy was to be resolved by the Hearing examiner in her review of the evidence, its relative weight and the credibility given the claiming and responding parties. There was no evidence which demonstrated this system did not comply with Chapter 443, Florida Statutes, and or federal law governing resolution of claims and tax liability.

23. Based upon the UCS-60, UCS-61 and the employment agreement, Examiner Gresham's determination had a reasonable basis in fact and in law. Examiner Gresham followed the procedures established by the Department under its authority pursuant to Chapter 443, Florida Statutes, in rendering her determination and weighing the evidence before her.

    
    

24. The determination, to the extent it determined Respondent's tax liability, initiated the tax liability/protest portion of this case. On this part of the case, as opposed to the claims determination portions of the case, the Department is not a nominal party since it has determined that Petitioner owes the State unemployment taxes and begins to assess those taxes. It is peculiarity of unemployment taxation that the tax is due per employee once the employer is required by statute to pay such taxes.

    
    

25. On or about October 25, 1991, Petitioner submitted a letter dated October 22, 1991 protesting its liability for unemployment compensation taxes as determined by Respondent. Petitioner's letter amended its answers to the previously submitted UCS-60 and states:

    
    

    It is our understanding that your determination was based on the information contained on Form UCS-60 which we completed and mailed to your office at the request of local officials.

    Since submitting the UCS-60, we have had more time to consider the accuracy of our initial responses to some of the questions contained on the form. We ask that you consider the following responses to the specific questions

    indicated, as our official response. We believe them to be more accurate and thus more indicative of the real relationship between us and our independent contractors.

    
    

26. Preceding the signatures of Patricia D. Hitchcock and Denise B. Driver, Petitioner also expresses apologies:

    
    

    We wish to express our apologies for our initial hasty response, especially in view of the fact that it has caused your determination to be made on the basis of incorrect data.

    
    

27. Most importantly the letter attempts to change or more fully explain Petitioner's answers to the critical questions under section II, number 1.(h), 2.(e), and 2.(l).

    
    

28. Respondent assigned Special Deputy Rose O'Leary to resolve Petitioner's Protest of Liability. On February 12, 1993, Special Deputy O'Leary held a hearing on the Petitioner's protest of its unemployment compensation tax liability.

    
    

29. Ms. Dukes did not appear at the hearing and has not been heard from since her initial claim. The Department appeared at the hearing through its representative. Petitioner appeared through its owners, Ms. Hitchcock and Ms. Driver. Ms. Hitchcock and Ms. Driver testified about the Petitioner's questionnaire and amending letter. Additionally, testimony was offered about court reporting employment practices in general, as well as testimony from Petitioner's accountant. The accountant's testimony appeared to be beneficial

    to the case. Because Ms. Dukes was not present at the hearing no evidence was offered on her side of the case other than the documents she originally filed. The Department attempted to support its determination of liability.

    
    

30. On May 6, 1993, Special Deputy O'Leary reversed Examiner Gresham's determination and in doing so found:

    
    

    Consideration was given to an apparent inconsistency between the Petitioner's initial answers to a questionnaire and testimony presented at the hearing. [The demeanor of the witnesses at the hearing was such that the Special Deputy accepts the Petitioner's position that it was confused and did not understand the questions or the significance of their answers at the time of completion of the questionnaire]. The testimony of the Petitioner's witnesses is accepted as

    an accurate depiction of the working relationship between the Petitioner and the workers. [emphasis supplied].

    
    

31. On August 18, 1993, Respondent issued its Final Order adopting the findings of fact and conclusions of law of the Special Deputy. Upon the decision becoming final, Petitioner became the prevailing party in the underlying action.

    
    

32. After the entry of the Final Order, Petitioner hired Lawrence Kaden, Esquire, as its attorney to represent it on a pro bono basis contingent upon its winning the derivative Section 57.111, Florida Statutes, fee case to collect Petitioner's costs in litigating Ms. Dukes' claim and Petitioner's tax liability.

    
    

33. Attached to the Petition in this case was an affidavit from Petitioner outlining various time and expenses incurred by Petitioner in litigating the underlying action. That affidavit reflects an expenditure for the accountant who testified at the underlying hearing in this matter. The fee charged by the accountant in the amount of $846.53 was for the accountant's preparation and testimony at what was a five hour hearing. The amount was not shown to be unreasonable and the testimony was useful to the Special Deputy. Therefore, the expense is a compensable cost of this proceeding should Petitioner be entitled to reimbursement for such costs. The other items on Petitioner's affidavit were for costs associated with travel, hours (at $40.00 per hour) spent by Petitioner's owners in preparing for the initial determination and the eventual hearing in this matter. However, these items are not normally items for which costs or fees may be assessed and, in this case, the equities on either side do not warrant a special award of these items.

    
    

34. The Petitioner also seeks reimbursement for costs of $309.57 for the appellate filing fee and travel costs associated with this appeal. The appellate court did not award costs of the appeal in its earlier decision in this case. Moreover, the travel costs claimed by Petitioner are not normally awarded and the equities in this case doe not militate in favor of such an award. Neither of these costs should be awarded in this case.

35. The Petitioner did not contain an affidavit of attorney's fees from Mr. Kaden which itemized the number of hours or services rendered by him once he was retained by Petitioner. The affidavit was produced for the first time at the final hearing in this matter. The Petition did contain two affidavits from local attorneys attesting to the fact that an attorney's fee of $150.00 an hour was a reasonable fee in this case. At the hearing, Petitioner's expert testified that $150.00 per hour was a reasonable fee in this matter. The evidence supported a reasonable fee of $150.00 an hour. The evidence did not support an award of a multiplier under the Lodestar factors. However, the lack of an itemized affidavit from Mr. Kaden causes the Petition to not meet the requirements of Section 57.111, Florida Statutes, for an award of attorney's fees.

    
    

36. More importantly, however, Petitioner is not entitled to an award of attorney's fees and costs because Respondent's actions and determinations were substantially justified in this case. The Department established a procedure pursuant to Section 443.141(2)(b), Florida Statutes, which provided for a process of determining employer liability and for appealing such determinations. That process was substantially followed and the Respondent's examiner reviewed and weighed the evidence which was before her resolving any issues of credibility. Indeed, much of the basis of the Department's initial determination was a direct result of Petitioner's inaccurate responses to the Employer's Independent Contractor Questionnaire. Given these facts, Petitioner is not entitled to an award of attorney's fees or costs under Section 57.111, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

37. The division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57(1) and 57.111, Florida Statutes.

    
    

38. Section 57.111, Florida Statutes, provides for an award of attorney's fees and costs in an administrative action which is not reasonably justified. Section 57.111, Florida Statutes states:

    
    

    1. This section may be cited as the 'Florida Equal Access to Justice Act.'

       
       

    2. The Legislature finds that certain persons may be deferred 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.

    3. As used in this section:

       1. 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.

       2. 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 small business party of a clear point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency.

       3. A small business party is a 'prevailing small business party' when:

          1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;

          2. A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or

          3. The state agency has sought a voluntary dismissal of its complaint.

       4. 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; or

          b. 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

          2. Either small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action under Section 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.

       5. 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. 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 adversial proceeding in the underlying action, or to the Division of Administrative Hearings which shall assign a hearing officer, 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 prepar- ations, 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.

    2. The state agency may oppose the appli- cation for the award of attorney's fees and costs by affidavit.

    3. The court, or the hearing officer 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 a hearing officer. The final order of

    a hearing officer is reviewable in accordance with the provisions of Section 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.

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

    2. No award of attorney's fees and costs for an action initiated by a state agency shall exceed $15,000.

    
    

    (5) 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 of judgment becomes final, the prevailing small business party may petition the circuit court where the subject matter of the underlying action arose for enforce- ment of the award by writ of mandamus, including additional attorney's fees and costs incurred for issuance of the writ.

    (6)(a) This section does not apply to any proceeding involving the establishment of a rate or rule or to any action sounding in tort.

    (b) This section only applies to actions initiated by state agencies after July 1, 1984.

    
    

    (7) Each state agency shall report on or before October 1 of each year to the President of the Senate and the Speaker of the House of Represent- atives the amount of attorney's fees and costs paid pursuant to the provisions of this section during the preceding fiscal year by that agency. The report shall describe the number, nature,

    and amount of the awards; the claims involved in the actions; and other relevant information which might aid the Legislature in evaluating the scope and impact of these awards.

    
    

39. In determining whether to award attorney's fees under this section to a person who was the subject of an administrative proceeding in which the person prevailed, the initial burden is on the prevailing party to establish by a preponderance of the evidence that it prevailed in the earlier administrative proceeding and that it is a small business party as defined by this section; once this burden is met, the burden is on the agency to establish whether it was substantially justified in prosecuting the administrative action. Department of Professional Regulation Div. of Real Estate v. Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989).

    
    

40. In this case, Respondent's determination dated October 8, 1991, was substantially justified.

    
    

41. Section 443.031, Florida Statutes, provides in pertinent part:

    
    

    Rule of liberal construction. -- This chapter shall be liberally construed to accomplish its purpose to promote employment security . . . to provide through the accumulation of reserves for the payment of compensation to individuals with respect to their unemployment.

    
    

42. Section 443.141(2)(b), Florida Statutes, provides:

    
    

    Section to the foregoing provisions of this subsection, the division shall by regulation prescribe the manner pursuant to which an employing unit which has been determined to be an employer may file an appeal and be afforded an opportunity for a hearing on such determination. Pending such hearing, the employing unit shall file reports and pay

    contributions in accordance with Section 443.131.

    
    

43. Ultimately, in issuing its October 8, 1991, determination Respondent was called upon to weigh the evidence before it and made a credibility assessment where conflicts appeared in the questionnaires submitted by the Petitioner and Sarah Dukes. Since the Respondent's determination turned on a

    weighing of the evidence and credibility assessment of a complaining witness, Sarah Dukes, and the Petitioner, a reasonable basis in fact and law existed to substantially justify the Respondent's October 8, 1991 determination. Gentele

    v. Department of Professional Regulation, 513 So. 2d 672, 673 (Fla. 1st DCA 1987). Respondent performed this function under the procedures it was authorized to adopt pursuant to Chapter 443, Florida Statutes. The procedure provided for a reasonable investigation in that the questions posited on the various questionnaires in this case were reasonably calculated to provide the information necessary for the Department to make a determination based on the evidence as presented in those questionnaires. The procedure was substantially followed in all material aspects.

    
    

44. Petitioner's argument that the Respondent is required to "interview" Petitioner after Petitioner submitted its UCS-61 questionnaire has no basis under the facts or the statutes involved in this case. Respondent need not interview Petitioner before making its determination. Woodson v. Department of Professional Regulation, 14 F.A.L.R. 223 (DOAH 1991); Dagget v. Department of Insurance, 13 F.A.L.R. 1282 (DOAH 1991).

    
    

45. Given the above, Petitioner is not entitled to an award of attorney's fees and costs in this matter.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law Petitioner's Petition for Attorney's Fees and Costs is denied.

DONE and ORDERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SunCom 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996.

APPENDIX

1. The facts contained in paragraphs 7, 8, 10, 11, 12, 13, 14, 17, 20, 21,

   22 and 23 of Petitioner's Proposed Findings of Fact were subordinate.

2. The facts contained in paragraphs 5, 9, 15, 16, 18, 19 and 24 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

3. Paragraphs 1, 2, 3, 4 and 6 of Petitioner's Proposed Findings of Fact were legal argument.

4. The facts contained in paragraphs 1, 2, 3, 6, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, 20 and 27 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

5. The facts contained in paragraphs 4, 5, 7, 11, 17, 21, 22 and 24 of Respondent's Proposed Findings of Fact are subordinate.

6. The facts contained in paragraphs 23, 25 and 26 of Respondent's Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

Lawrence A. Kaden, Esquire Post Office Box 12726 Pensacola, Florida 32575

Michael G. Moore, Esquire Department of Labor and

Employment Security

Suite 307, Hartman Building 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

Douglas L. Jamerson, Secretary Department of Labor and

Employment Security

Suite 303, Hartman Building 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2152

Edward A. Dion, Esquire Department of Labor and Employment Security

Suite 307, Hartman Building 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO APPEAL

A Party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statues. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of the 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: 93-005973F

Orders for Case No: 93-005973F