STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRESH PICK FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-1760F

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

FINAL ORDER

Fresh Pick Farms timely filed an Application for Award of Attorney's Fees and Costs pursuant to Section 57.111, Florida Statutes, predicated on its successful defense of DOAH Case No. 93-2156A, an action brought by Harvey Johnson pursuant to Sections 604.15-604.34, Florida Statutes. Pursuant to the "Department's Amended Motion to Birfurcate Hearing" filed June 16, 1994, to which Petitioner had no objection, the Petitioner's Application for Award of Attorney's Fees and Costs was submitted to the undersigned on the briefs of the parties as to whether Petitioner is legally entitled to an award of attorney's fees from the Respondent pursuant to Section 57.111, Florida Statutes. The only exhibit was a composite exhibit consisting of a copy of the pleadings and other documents filed in DOAH Case No. 93-2156A.

Since the issue as to Petitioner's entitlement to an award of costs and fees pursuant to Section 57.111, Florida Statutes, is resolved in the negative, no further proceedings before the Division of Administrative Hearings will be necessary in this matter. Had the issue been resolved in the affirmative, it would have been necessary to determine the amount of a reasonable award.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Final Order.

APPEARANCES

For Petitioner: J. James Donnellan, III, Esquire

1900 Brickell Avenue

Miami, Florida 33129

For Respondent: Robert G. Worley, Esquire

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to an award of attorney's fees against Respondent pursuant to Section 57.111, Florida Statutes.

FINDINGS OF FACT

1. Harvey Johnson filed a complaint with Respondent pursuant to the provisions of Sections 604.15-604.30, Florida Statutes, asserting that he had not paid him for 932 bushels of beans.

   
   

2. Based on that complaint, Respondent referred the dispute to the Division of Administrative Hearings and requested a formal hearing of that dispute. The dispute was assigned DOAH Case No. 93-2156A.

   
   

3. Following a formal administrative hearing, a Recommended Order was entered in DOAH Case No. 93-2156A which concluded, for the reasons stated therein, that Fresh Pick Farms was not indebted to Mr. Johnson. The Respondent thereafter entered a Final Order in DOAH Case No. 93-2156A that adopted the findings and conclusions contained in the Recommended Order.

   
   

4. J. James Donnellan, III, Esquire, represented Fresh Pick Farms in DOAH Case No. 93-2156A.

   
   

5. Fresh Pick Farms was a prevailing party in DOAH Case No. 93-2156A.

   
   

6. The Florida Department of Agriculture provided a forum for the administrative resolution of the dispute between Mr. Johnson and Fresh Pick Farms, Inc. as required by Section 604.21, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 57.111 and Chapter 120, Florida Statutes.

   
   

8. Section 604.21, Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. Any person claiming himself to be damaged by any breach of a[n] . . . agreement given by

      a licensed dealer in agricultural products . . . may enter complaint thereof against the dealer

      and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint.

      * * *

      (6) Any party whose material interest is affected by a proceeding pursuant to this

      section shall be granted a hearing upon request. Such hearing shall be conducted pursuant to chapter 120. The order of the department, when issued pursuant to the recommended order of a hearing officer, shall be final upon issuance.

9. The Department referred to in Section 604.21, Florida Statutes, is the Department of Agriculture and Consumer Services. See, Section 604.15(2), Florida Statutes.

10. Section 57.111(4)(a), provides, in pertinent part, as follows: (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 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.

    
    

11. Section 57.111(3)(b), Florida Statutes, defines the term "initiated by a state agency" as follows:

    
    

    (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.

    
    

12. The Department filed a request with the Division of Administrative Hearings that a formal administrative hearing be conducted in this proceeding. Consequently, it is concluded that DOAH Case No. 93-2156A was initiated by the Department within the meaning of Section 57.111(3)(b)2, Florida Statutes.

    
    

13. Section 57.111(4)(a), Florida Statutes, provides, in pertinent part, that awards of fees and costs are not to be awarded if the actions of the agency were substantially justified or if special circumstances exist which would make the award unjust. Section 57.111(4)(d)1, Florida Statutes, provides that no award shall be made in any case in which the state agency was a nominal party.

    
    

14. There are three distinct reasons why no award of attorney's fees and costs should be made against the Department of Agriculture and Consumer Services in this proceeding. First, the Department was substantially justified in referring this matter between Mr. Johnson and Fresh Pick Farms to the Division of Administrative Hearings since it was required by statute to provide a formal administrative hearing to Mr. Johnson and it was authorized by statute to refer the matter to the Division of Administrative Hearings for that formal hearing. Second, it would be unjust to enter an award against the Department when it was merely carrying out its statutory responsibility. Third, the Department was, at most, a nominal party in this proceeding.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner's application for an award of attorney's fees

and costs is DENIED.

DONE AND ENTERED this 12th day of September, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 12th day of September, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 94-1760F

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. Petitioner's post-hearing submittal does not contain separately designated proposed findings of fact. Instead, the post-hearing submittal consists of argument that is rejected to the extent the argument is contrary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted by Respondent.

1. Respondent's post-hearing submittal does not contain separately designated proposed findings of fact. Instead, the post-hearing submittal consists of argument that is rejected to the extent the argument is contrary to the conclusions reached.

COPIES FURNISHED:

J. James Donnellan III, Esquire 1900 Brickell Avenue

Miami, Florida 33129

Robert G. Worley, Esquire Department of Agriculture and

Consumer Services

Division of Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

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: 94-001760F

Orders for Case No: 94-001760F