STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SILVIA S. IBANEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0639F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

Respondent. )

)

FINAL ORDER

This cause came on for consideration before Ella Jane P. Davis of the Division of Administrative Hearings (DOAH) on Petitioner Silvia S. Ibanez' February 13, 1995 Petition for Attorneys Fees and Costs and upon the February 28, 1995 Response filed by the Department of Business and Professional Regulation.

APPEARANCES

For Petitioner: Silvia S. Ibanez, Esquire

3956 Town Center Boulevard, Number 196

Orlando, Florida 32837

and

J. Lofton Westmoreland Moore, Hill and Westmoreland Post Office Box 1792

900 Sun Bank Tower Pensacola, Florida 32598

For Respondent: Charles F. Tunnicliff

Department of Business and Professional Regulation

Northwood Centre Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to recover attorney's fees and costs pursuant to Section 57.111 F.S. and Rule 60Q-2.035 F.A.C. for an underlying disciplinary action in which she ultimately prevailed.

PRELIMINARY STATEMENT

This cause arises by a petition filed February 13, 1995, for attorneys fees and costs, on behalf of Silvia S. Ibanez (the individual) in connection with the disciplinary case of Department of Professional Regulation, Board of Accountancy

1. Silvia Ibanez, DOAH Case No. 91-4100.

   The petition did not request an evidentiary hearing. Respondent Department of Business and Professional Regulation 1/ filed its response on February 28, 1995, without requesting an evidentiary hearing.

   
   

   On March 28, 1995, Petitioner Ibanez filed a "Supplement to Exhibit 'H' to Petition For Attorney's Fees and Costs," submitting ". . . a more detailed analysis of the $11,252.73 of fees and costs incurred with the law firm of Holland and Knight, . . . " 2/

   
   

   On March 31, 1995, the parties filed a joint motion for abeyance so they might engage in settlement negotiations in conjunction with other legal actions in the United States District Court. Since settlement would obviate the necessity for further administrative proceedings, an order of abeyance was entered April 7, 1995.

   
   

   That order provided, in pertinent part:

   
   

   The Petition and Response having been filed without either party requesting formal hearing, this case is now ready for disposition by final order.

   
   

   However, the parties being in agreement for an abeyance, an abeyance will be GRANTED. The parties having given no time frame for their settlement discussions, the length of abeyance is decided in the discretion of the undersigned.

   
   

   It is ORDERED:

   
   

   This cause is abated to and until June 1, 1995. In the event Petitioner does not file a voluntary dismissal by close of business that date, a final order will issue subsequent thereto.

   
   

   No voluntary dismissal was timely filed, but in an abundance of caution, Notice and Order was entered June 28, 1995 giving the parties 15 days in which to show cause why a final order should not be entered without formal hearing. No responses were filed.

   
   

   This order follows.

   
   

   FINDINGS OF FACT

   
   

   1. The petition herein is brought in the name of "Silvia S. Ibanez." It prays that attorneys fees and costs be awarded pursuant to Section 57.111 F.S. to "Petitioner Ibanez . . . as the small business prevailing party in this disciplinary action and any other relief deemed appropriate," in the amounts of

      $11,252.73 for the services of the Holland & Knight law firm, $13,822.50 for the services of the Moore, Hill and Westmoreland law firm, and $8,563.50 for the services of Robert Shapiro, Esquire. Herein, Ms. Ibanez seeks recovery of attorney's fees and costs incurred in DOAH Case No. 91-4100, styled, Department of Professional Regulation, Board of Accountancy v. Silvia Ibanez. That case involved a recommended order in Ms. Ibanez' favor, a final order against her, a direct appeal to the Florida First District Court of Appeal, a writ of certiorari from the United States Supreme Court, and subsequent remand activity.

   2. That disciplinary proceeding was initiated by the agency against Ms. Ibanez, a licensed certified public accountant (CPA), alleging violation of certain Board rules, most prominently the rules which have come to be known as the "holding out" and "fraudulent advertising" rules.

      
      

   3. Ms. Ibanez was the only respondent named in the July 30, 1991 amended administrative (disciplinary) complaint, the only initiating document provided.

      
      

   4. The January 15, 1992 recommended order therein shows that Silvia Ibanez was individually charged with disciplinary violations of the certified public accountancy statute and rules for (Count I) practicing public accounting in an unlicensed firm by various personal acts; (Count II) by appending certain designations to her name; and (Count III) by practicing public accounting by holding herself out as a CPA and appending the CPA designation after her name in advertising so as to imply she abided by Chapter 473 F.S. The closest that case came to dealing with any business entity other than Silvia Ibanez individually was an inarticulate phrase drafted into paragraph eleven of Count I of the amended administrative complaint, the thrust of which complaint was to define a violation of the advertising rule. That inarticulate paragraph eleven seemed to charge Ms. Ibanez individually for failing to license her law firm, "Silvia S. Ibanez, P.A.", as a CPA firm. From the Order of Reconsideration dated August 22, 1991, it appears that inarticulate and convoluted paragraph eleven allegation against Ms. Ibanez individually was only intended to address Count I as already framed and was withdrawn to avoid confusing, instead of clarifying, the issues in dispute.

      
      

   5. The recommended order contains the following findings of fact and conclusions of law which are significant to this fees and costs case:

      
      

      Finding of Fact 9: Neither the CFP nor CPA credential is part of the firm name, "Silvia S.Ibanez, P.A.-Law Offices," which also appears on Ibanez' business card.

      Ibanez' telephone directory listings and card at issue show the CPA and CFP credentials strictly appended to Respondent's individual name.

      
      

      Findings of Fact 16: Ibanez testified credibly that her intent in appending CPA and CFP credentials solely to her own name is to indicate that she is, in her own right, individually licensed as a CPA and CFP.

      
      

      Conclusion of Law 9: 3/ DPR asserted that Ibanez is engaged in "practicing public

      accounting" as set forth in one or both of the definitions of that term contained in subparagraphs (a) and (b) of Section 473.302(4) F.S. Ibanez countered to

      the effect that she was exempt from those statutory definitions on the basis of one or more of the three exclusions to the term "public accounting," which are set forth in Sections (1), (2) and (3) of Rule 21A-

      20.011 F.A.C., and therefore, she could not be held to have violated any portion of

      Chapter 473 F.S. More specifically, Ibanez urged that because she is working as an attorney within a P.A. (which she asserted is an employer not required to be

      licensed under Chapter 473 F.S.), she falls under exception 21A-20.011(1) F.A.C.

      
      

   6. The April 23, 1992 final order of the Board and the appellate court orders in the disciplinary case did not alter the foregoing findings of fact or specifically address the foregoing conclusion of law, which does little more than recite a legal position posited by Ms. Ibanez before DOAH in the disciplinary case.

      
      

   7. At the time of the recommended order in the disciplinary case, Rule 21A-20.011(1) F.A.C. provided:

      
      

      "Practice of, or practicing public accountancy" as defined by Section 473.302(4) F.S., shall exclude any of the following:

      
      

      1. Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473,...

         
         

   8. Ms. Ibanez' law firm was never licensed as a CPA firm, and she did not purport to be the qualifying licensee for a CPA firm.

      
      

   9. Concurrent with most of the duration of the disciplinary action, Ms. Ibanez was also pursuing a Section 120.56 F.S. rule challenge to another rule, the "holding out" rule, Rule 21A-20.012 F.A.C. She had initiated that challenge in her capacity as a licensed CPA. As Petitioner in that rule challenge, Ibanez et al v. Board of Accountancy et al, DOAH Case No. 3336R, Ms. Ibanez posited herself as a sole practitioner and an employee of the law firm, "Silvia S. Ibanez, P.A.", but the law firm was not a party to, and did not participate in, the rule challenge. "Silvia S. Ibanez, Esquire" appears on the copies list of the final order in the rule challenge. That final order declared the "holding out" rule invalid on January 15, 1992. The agency et al appealed that final order to the First District Court of Appeal, but dismissed the appeal on May 6, 1992. Any fees and costs associated with the rule challenge were disposed of in a November 23, 1992 Final Order of Dismissal entered in Silvia S. Ibanez v. Board of Accountancy DOAH Case No. 92-0427F and may not be recouped in the instant proceeding.

      
      

   10. Based on all the available evidence, 4/ the law firm of "Silvia S. Ibanez, P.A." also did not participate in the disciplinary case even as a legal representative of Ms. Ibanez, the individual, until after the recommended order was entered.

       
       

   11. The rule challenge case, DOAH Case No. 91-3336R, was heard on August 1-2, 1991.

       
       

   12. The disciplinary case, DOAH Case No. 91-4100, was heard on August 27, 1991.

   13. Pursuant to a stipulation during the formal hearing of the disciplinary case on August 27, 1991, on September 20, 1991, the parties designated items to be adopted into the record of the disciplinary case from the rule challenge case. For convenience, these items were copied and filed in the disciplinary case. 5/

       
       

   14. Because the "holding out" rule had been held invalid, the disciplinary case was considered by the hearing officer to be a case of first impression. Because the "holding out" rule had been held invalid, only the statute utilizing the term, "holding out", was applied to one count of the disciplinary case. However, the other existing rules could still be applied as plead. The January 15, 1992 recommended order in DOAH (disciplinary) Case No. 91-4100 recommended finding Ms. Ibanez was not "holding herself out as a certified public accountant", finding her not guilty of all charges alleged under Counts I through III, and dismissing all counts.

       
       

   15. Contrary to the conclusions reached in the recommended order in the disciplinary case, the Board of Accountancy's final order found and concluded that Ms. Ibanez was guilty on all three counts and should be disciplined with a reprimand.

       
       

   16. Ms. Ibanez, in her individual name, appealed that final order to the Florida First District Court of Appeal, which per curiam affirmed the Board's final order by its judgment entered June 9, 1993.

       
       

   17. The United States Supreme Court granted a writ of certiorari and, after oral argument, issued its opinion in Ms. Ibanez' favor. That appellate case was also styled in her name, individually. By a June 13, 1994 order, the Supreme Court mandated the Florida First District Court of Appeal to act in conformity with the Supreme Court opinion. The First District Court of Appeal issued its own mandate to the Board on October 5, 1994. The Board issued its final order on remand on January 31, 1995. 6/

       
       

   18. It is undisputed that Ms. Ibanez is the prevailing party in the underlying disciplinary case, DOAH Case No. 91-4100.

       
       

   19. Her petition which initiated the present fees and cost case was filed with DOAH on February 13, 1995 and is timely under Section 57.111 F.S. and Rule 60Q-2.035 F.A.C. It did not request an evidentiary hearing.

       
       

   20. The agency's February 28, 1995 response herein was timely. It disputes whether the Petitioner is a small business party; disputes the amount, rate, and reasonableness of the attorneys' fees claimed; and asserts that the agency's actions were substantially justified at the time the underlying disciplinary case was initiated. It does not specifically request an evidentiary hearing. 7/

       
       

   21. By the failure of both parties to request an evidentiary hearing and to respond to the notice and order to show cause entered herein on June 28, 1995, they are deemed to have waived an evidentiary hearing in this cause.

       
       

   22. Without any supporting documentation, the petition asserts standing upon the following bare allegation:

       
       

       12. Ibanez meets the prevailing party provisions of F.S. Section 57.111 and is

       a "small business" party, with her principal

       place of business in Orlando Florida. Ibanez has no employees other than herself. As of the date the state agency initiated this proceeding, Ibanez was the sole shareholder of her law firm professional association ("P.A.") and the P.A.'s net worth did not exceed $2,000,000.00.

       
       

   23. The petition alleges in conclusionary terms that the agency's actions were substantially unjustified and that no circumstances exist that would make an award of attorney's fees unjust, but no reason or argument is advanced in support of the allegation.

       
       

   24. The petition claims the following amounts as fees and costs:

       
       

       Petitioner incurred substantial legal fees and costs at the administrative and appellate levels, as explained below:

       
       

       Fees & Costs Holland & Knight $11,252.73 [Exhibit "H"]

       Moore, Hill &

       Westmoreland $13,822.50 [Exhibit "I"] Robert Shapiro, Esq. $ 8,563.50 [Exhibit "J"]

       Even after considering financial assistance to keep the case alive, Petitioner incurred in excess of $15,000 in attorney fees and costs. (Emphasis supplied)

       
       

   25. The language just emphasized does not provide any information as to which portions of the fees and costs, if any, constituted "financial assistance to keep the case alive." 8/

       
       

   26. Ms. Ibanez' affidavit to the effect that the participation of co- counsel was required is attached to her petition, but her affidavit does not address the reasonableness of the fees claimed by each of the named law firms. Therefore, her affidavit does not meet the requirements of Rule 60Q-2.035(3) F.A.C.

       
       

   27. "Exhibit H" of the petition addresses the $11,252.73 claimed by Ms. Ibanez on behalf of Holland and Knight. That exhibit does not include the affidavit required by Rule 60Q-2.035 (3) F.A.C. Petitioner also filed an unauthorized "Supplement to Exhibit H" on February 28, 1995. See the Preliminary Statement, above. Although such "supplements" are not authorized by statute or rule and no order permitted it, the Supplement has been considered because it was filed within the 60 days provided by statute and rule for the filing of the original petition and Respondent has not objected to it or moved to strike. Unfortunately, the Supplement also does not include an affidavit executed by any attorney with Holland and Knight. 9/

       
       

   28. "Exhibit I" of the petition addresses the $13,822.50 claimed by Petitioner on behalf of Moore, Hill and Westmoreland. It contains an affidavit of J. Lofton Westmoreland on behalf of "Westmoreland, Hook and Bolton, P.A,"

       which substantially complies with Rule 60Q-2.035(3) F.A.C. While it is no small matter that there is a discrepancy in the firm names cited by Petitioner and Mr. Westmoreland, Respondent agency also has not raised this as an issue.

       Accordingly, the undersigned, being cognizant of the frequent shift and drift of law firm names, infers that regardless of which firm Mr. Westmoreland is now associated with, his affidavit applies to this case. 10/ Therefore, Mr.

       Westmoreland's affidavit has been considered and found sufficient on its face. This finding does not, however, validate all of the claimed fees and costs. 11/

       
       

   29. "Exhibit J" of the petition addresses the $8,563.50 claimed by Petitioner on behalf of Robert Shapiro, Esquire. There is nothing signed by Mr. Shapiro, let alone an affidavit that meets the requirements of the applicable statute and rule. The breakdown provided shows Mr. Shapiro's fees are based on appellate work on the disciplinary case at the United States Supreme Court level, and that he has been paid portions thereof so that the balance owed is

       $2,300.00. The only cost listed is $28.50 in Federal Express charges. 12/

       
       

   30. All the fees and costs claimed herein apply to the period after the recommended order in the disciplinary case and almost all apply after the commencement of the appeal process from the final order altering that recommended order. The courts have already ordered the Department of Business and Professional Regulation, Board of Accountancy to pay Ms. Ibanez $5,028.55 for the printing of the record and $300.00 as clerk's costs. These amounts do not seem to be broken out of the petition's supporting exhibits and none of the documentation provided with the petition discusses whether or not the appellate fees and costs claimed herein could have been requested before the courts and were not requested, were requested and denied, or were not available from the courts. There is an indication that some fees and costs were requested on appeal and denied by the courts, but there is no detail as to which fees and costs were claimed at the appellate level and there is nothing to show the legal reason for denial. Consequently, it is impossible to assess from the documentation provided which fees and costs are still to be decided on remand. 13/

       
       

   31. Because the foregoing facts are dispositive of the petition, it is unnecessary to make further findings of fact on the issue of substantial justification vel non of the agency at the time the disciplinary action was initiated.

       
       

       CONCLUSIONS OF LAW

       
       

   32. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 57.111 F.S. (FEAJA) and Rule 60Q-2.035 F.A.C.

       
       

   33. An initial rebuttable burden rests upon Petitioner to establish that she is a prevailing small business party from an action initiated by a state agency. See, Rudloe v. Department of Environmental Regulation 11 F.A.L.R. 54 (1988); Romaguera v. Department of Professional Regulation, Board of Medical Examiners, 10 F.A.L.R. 929 (1988).

       
       

   34. A "small business party" is defined in Section 57.111(3)(d) F.S. as:

       
       

       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 . . .

       
       

   35. Because this statute is in abrogation of the common law, it is to be strictly construed. See, Creative Designs & Interiors, Inc. v. Department of Transportation, 11 FALR 3342 (1989). Construing the statutory definition strictly, Ms. Ibanez does not meet the definition/status necessary to prevail.

       
       

   36. While it may seem nonsensical that, having struck a landmark blow for the commercial free speech of law firms employing CPA-lawyers as well as for individual dual practitioners, Ms. Ibanez cannot now recoup her alleged costs and legal fees for that endeavor, that is the result of a strict construction of the Act.

       
       

   37. Although Ms. Ibanez may wear many "hats" at many times, she was not prosecuted as a "small business party" in the underlying disciplinary case, and she certainly did not defend as one. Although Petitioner was licensed by the agency at the time the underlying disciplinary action was initiated, she consistently posited herself as either an individual CPA not practicing public accounting as defined in the applicable disciplinary statute and rules or as an employee of a law firm which was not a named party. In asserting her status as an individual CPA and/or as a mere employee of her law firm professional association during the course of the disciplinary case, she now cannot legitimately take a contrary posture for purposes of the instant fees and costs case.

       
       

   38. While this may be particularly frustrating in light of the agency's often convoluted and circular legal theories in the disciplinary and rule challenge cases, that result is clearly in accord with precedent because neither of Petitioner's professed statuses make her a "small business party" as defined above. See, Nicholitz v. Department of Business and Professional Regulation and Board of Opticianary. DOAH Case No. 93-1182F (FO entered November 29, 1994), wherein a non-practicing opticianary licensee was denied attorney's fees because at best she was an employee of her husband, a medical doctor; Brumley v. Department of Revenue, 13 FALR 646 (1991), wherein the Petitioner was declared not a small business party just because he claimed to be the alter ego of a corporate entity; Department of Professional Regulation v. Toledo Realty, Inc.,

       549 So.2d 715 (Fla. 1st DCA 1989), wherein the court affirmed a finding that a licensed real estate broker was not a small business party; Thompson v. Department of Health and Rehabilitative Services, 533 S. 2d 840 (Fla. 1st DCA 1988), holding FEAJA does not apply to individual employees; Department of Health and Rehabilitative Services v. J.S., 10 FALR 5140 (1988) wherein a licensed ACLF manager with no financial interest in the business was only an employee of the ACLF and was not engaged in the practice of his profession and thus, he was not a small business party under FEAJA; and Structured Shelters Financial Management, Inc. v. Department of Banking and Finance Division of Securities, 10 FALR 382, holding that individual directors and/or officers of a small business were not small business parties under FEAJA.

   39. Recent decisions have clearly distinguished the difference between a mere license holder and a small business or corporation for purposes of applying FEAJA. The First District Court of Appeal recently issued an opinion on the issue of a small business party within the meaning of Chapter 57, F.S., opining, "Section 57.111 authorizes an attorney's fee for a qualifying small business party, which must be a corporation, a partnership, or a sole proprietor of an unincorporated business". See, Florida Real Estate Commission v. Shealy, 647 So. 2d 157 (Fla. 1st DCA 1994). Therein, the appellee indicated that he had won his license application dispute with the agency for work which he intended to perform on behalf of a corporation wholly owned by himself and his wife, but the corporation was not a party to any of the underlying proceedings and the appellee had appeared in his individual capacity. The court held, "Although the appellee and the corporation were found to be 'one and the same entity' based on appellee's control of the business, the statute does not permit disregard for the corporate form." No award is permitted for a party who is not a small business party as defined by the statute.

       
       

   40. Having concluded that Petitioner is not a small business party, it is not necessary to address other fatal flaws in the petition and supporting documents.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is ORDERED: The Petition for attorney's fees and costs is denied and dismissed.

DONE AND ORDERED this 29th day of August, 1995, in Tallahassee, Florida.

ELLA JANE P. DAVIS

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 29th day of August, 1995.

ENDNOTES

1/ This is the successor agency to the Department of Professional Regulation, prosecutor in the underlying disciplinary case.

2/ Such "supplements" are not provided for in the applicable statute and rule. Petitioner filed same without leave of court. In fairness to Petitioner, however, it is noted she may have been misled by a representation in paragraph 5 of the response, whereby Respondent "reserves response to Exhibit H until Respondent is provided with a petition supplement detailing the costs and fees incurred".

3/ As published in ACCESS, this is now Conclusion of Law 36.

4/ The evidence herein includes all listed in Rule 60Q-2.035(7) F.A.C. For instance, among other items, it is noted that the recommended order shows copies to "Silvia S. Ibanez, Esquire."

5/ Therefore, both the costs of the formal disciplinary case hearing on August 27, 1991, its transcript, and the costs of copying the rule challenge transcript and exhibits for later filing in the disciplinary case could be recoverable in the instant case if all other factors warranted that recovery. However, due to other flaws in the instant fees and costs petition and in the status of the Petitioner to recover herein, which flaws are dispositive, further findings of fact on this issue are not necessary.

6/ The Board's January 31, 1995 order was necessary to amend its December 12, 1994 order so that the Board would be acting fully in conformity with the United States Supreme Court opinion in this case now at Ibanez v. Florida Department of Business and Professional Regulation, U.S. , 114 S. Ct. 2084 (1994). The December 12, 1994 order had ordered a new investigation of Ms. Ibanez for possible disciplinary prosecution for alleged "practicing public accountancy through an unlicensed corporation at the present time." (See also Findings of Fact 3-4, and 8 above.)

7/ The response apparently does not dispute any of the alleged costs. It includes no counter-affidavits as to amounts or rate of fees and attaches no evidence with regard to the probable cause panel's original determination to prosecute Ms. Ibanez. It demands strict proof, but does not specifically request an evidentiary hearing.

8/ Such "assistance to keep the case alive" is not recognized as a recoverable element of fees and costs under Section 57.111 F.S. While this language of the petition probably is intended to convey that after eliminating any such "assistance", the fees and costs total in excess of the statutory cap of

$15,000, scrutiny of the named exhibits would be necessary in order to eliminate other possibilities. That is not necessary and further findings of fact on this issue also are unnecessary due to the other flaws in this petition and in the status of the Petitioner to recover herein, which elements are dispositive.

9/ The Supplement to "Exhibit H" breaks out costs and fees in the disciplinary case from the rules case adequately, but due to the absence of a proper affidavit, further findings of fact on this issue are not necessary.

10/ If fees/costs are awarded, any dispute as to allocation thereof would have to be resolved among Petitioner and several attorneys anyway, and Mr.

Westmoreland's obligations to his various firms are their own business.

11/ It is noted that the hours of Mr. Westmoreland's firm's legal services and costs incurred commence on September 21, 1992, and therefore they apply only to appellate services before the Florida First District Court of Appeal and the United States Supreme Court and to the collection of attorney's fees and costs on remand. A cursory review of the itemized support documents reveals that there was at least one application for attorney's fees before one of the courts, and that application was denied. Due to the flaws in this petition and in the status of the Petitioner to recover herein, and due to the uncertainty of the evidence of what fees and costs have been denied and/or waived, as related in Finding of Fact 30, further findings of fact with regard to the eligibility of Mr. Westmoreland's claimed fees and costs is not necessary.

12/ Due to the absence of a proper affidavit, further findings of fact on this issue are not necessary.

13/ If the fees and costs were available at the appellate level but were not claimed, they may have been waived. If they were claimed and the respective courts denied them, that is "law of the case" against Petitioner's claim here, since all fees claimed apply to the appeals. However, if the respective courts' legal reason for denial of fees and costs included a belief that the issue would be considered in this instant Section 57.111 F.S. proceeding before DOAH, the fees and costs still may be appropriate for consideration in this proceeding.

However, there is no indication of either situation in any order attached to the petition.

COPIES FURNISHED:

John J. Rimes, Esquire Department of Legal Affairs The Capitol, Suite LL04 Tallahassee, Florida 32399

J. Lofton Westmoreland, Esquire Moore Hill and Westmoreland

PO Box 1792

Pensacola, Florida 32837

Silvia S. Ibanez, Esquire

3956 Town Center Boulevard #196

Orlando, Florida 32837

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard T. Farrell, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Martha Willis, Executive Director 4001 Northwest 43 Street, Suite 16

Gainesville, Florida 32606

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 95-000639F

Orders for Case No: 95-000639F