STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY NEIL BROWN )

)

Petitioner, )

)

vs. ) CASE NO. 97-1391F

)

FRANK T. BROGAN, Commissioner ) of Education, )

)

Respondent. )

)

FINAL ORDER

Pursuant to stipulation of the parties, formal hearing in this case was waived and the case was submitted for decision by the Administrative Law Judge, Michael M. Parrish, “on the basis of the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.”

APPEARANCES

For Petitioner: Andrew E. Colsky, Esquire

F. Scott Fistel, P.A.

2331 North State Road 7, Suite 220

Lauderhill, Florida 33313

For Respondent: J. David Holder, Esquire

396 Lakeview Drive

Defuniak Springs, Florida 32433

STATEMENT OF THE ISSUES

This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small

business party and whether the Respondent was substantially justified in bringing the underlying proceeding.

PRELIMINARY STATEMENT

In DOAH Case No. 96-4290 the Commissioner of Education filed an Administrative Complaint in which the Petitioner in this case, Mr. Gregory Neil Brown, was charged with specific acts of misconduct, on the basis of which the Commissioner of Education sought to take disciplinary action against Mr. Brown and his teacher certificate. That case was disposed of by the filing of a voluntary dismissal of the Administrative Complaint.

Thereafter, on March 17, 1997, Mr. Brown (Respondent in the underlying case and Petitioner here) filed a timely application for an award of attorneys fees and costs pursuant to Section 57.111, Florida Statutes. The application was accompanied by three supporting documents including an affidavit itemizing the attorneys fees and costs.

On March 27, 1997, the Commissioner of Education filed a timely response to the application. The response raised two defenses: (1) it asserted that Mr. Brown was not a “small business party,” and (2) that the Commissioner of Education was substantially justified in bringing the underlying proceeding. On April 14, 1997, Mr. Brown filed a reply to the Commissioner’s response as well as an amended application for attorneys fees and costs. On April 14, 1997, Mr. Brown also filed a Motion For

Summary Hearings. Neither party specifically requested an evidentiary hearing.

On May 5, 1997, a status conference was conducted in this case by means of a telephone conference call. The results of that conference were described as follows in an order issued on May 6, 1997:

During the course of the conference, counsel for both parties expressed a preference for disposition of this case on the basis of the existing record without an evidentiary hearing and without the filing of any further pleadings or memorandums of law. To that end, counsel for both parties expressly waived an evidentiary hearing and expressly waived the opportunity to file proposed final orders. During the course of the conference attention was also directed to the Petitioner’s Amended Motion For Recovery of Attorney’s Fees And Costs. Counsel for Petitioner clarified that the only changes between that document and the original document seeking an award of attorney’s fees and costs consisted of some minor details in the attachments regarding the amounts claimed. Counsel for Respondent had no objection to those amendments.

The order of May 6, 1997, concluded with the following:

That an evidentiary hearing will not be scheduled in this case and, consistent with Rule 60Q-2.035(7), Florida Administrative Code, the Administrative Law Judge “will decide for or against the award and the amount, if any, on the basis of the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.”

FINDINGS OF FACT

The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of

the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1

1. In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System.

2. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint.

3. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts

   that it could prove its case by the required “clear and convincing” standard.

4. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 57.111, Florida Statutes; Rule 60Q-2.035, Florida Administrative Code.

6. The respective burdens on the parties in a case of this nature are described as follows in Jorge Arturo Flores, M.D. v. Department of Business and Professional Regulation, Board of Medicine, DOAH Case No. 93-2632F (Final Order issued December 8, 1993):

   A party seeking such an award of "attorney's fees and costs" has the initial burden of proving that it is a "small business party," within the meaning of the statute, which had prevailed in an earlier "adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency." Once such proof has been submitted,

   the burden shifts to the agency to establish by a preponderance of the evidence that its actions in initiating the proceeding "were substantially justified or special circumstances exist which would make the award unjust." See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717-18 (Fla. 1st DCA 1989). An agency meets its burden of demonstrating that its actions were "substantially justified" by showing that the proceeding "had a reasonable basis in law and fact at the time it was initiated." Section 57.111(3)(e), Fla. Stat.; Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

7. In the instant case the only disputed issues raised by the agency’s response are: (a) whether the Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes, and (b) whether the agency's actions were substantially justified.

8. The issue of whether the Petitioner qualifies as a "small business party" within the meaning of the statute turns on the meaning of the quoted term as defined in the statute. The term is defined at subsection (3)(d) of Section 57.111, Florida Statutes, which reads as follows in pertinent part:

   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 or not more than $2 million; .

   . . .

   
   

9. The Respondent argues that Mr. Brown is not a “small business party.” In this regard the Respondent, relying on such cases as Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989); Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840 (Fla. 1st DCA 1988); and Florida Real Estate Commission v. Shealey, 647 So.2d 151 (Fla. 1st DCA 1994), argues that Mr. Brown is an “individual employee,” and, therefore, not a small business within the meaning of Section 57.111(3)(d), Florida Statutes. However, the documentation submitted in support of the petition shows that at the time in question, the Dade County Public School System was treating Mr. Brown as a “nonemployee” who was performing part-time coaching services essentially as an independent contractor. This documentation, when considered with Mr. Brown’s assertions to the effect that he is the sole proprietor of an unincorporated business, appears to be sufficient to support a conclusion that Mr. Brown is a small business party within the meaning of the subject statute.

10. The documentation submitted in support of the response to the petition is sufficient to show that at the time the agency initiated the Administrative Complaint in the underlying case,

the agency had a reasonable basis in law and fact for going forward with the charges against Mr. Brown. Such being the case, the agency action was substantially justified, which is a bar to an award of attorney’s fees and costs in this case.

CONCLUSION

On the basis of all of the foregoing, it is ORDERED:

That the petition in this case for an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes, is hereby DISMISSED and all relief requested in the petition is hereby DENIED.

DONE AND ORDERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997.

ENDNOTE

1/ As noted in the Preliminary Statement, both parties waived an evidentiary hearing and stipulated that this case would be decided on the basis of the information contained in the record as of the date of the telephone conference on May 5, 1997. The effect of such a waiver and stipulation is that the undisputed factual assertions in the parties’ pleadings and supporting documents are taken as established without the need for further proof.

COPIES FURNISHED:

Andrew E. Colsky, Esquire

F. Scott Fistel, P.A.

2331 North State Road 7, Suite 220

Lauderhill, Florida 33313

J. David Holder, Esquire

396 Lakeview Drive

Defuniak Springs, Florida 32433

Karen Barr Wilde, Executive Director Education Practices Commission

224-B Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

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: 97-001391F

Orders for Case No: 97-001391F