The Issue The issues in the case are as follows: Whether Florida Administrative Code Rule 61G4-12.017 is an invalid exercise of delegated legislative authority; and Whether the committee procedure used by the Construction Industry Licensing Board to review applications for licensure is invalid as an unadopted rule.
Findings Of Fact The Petitioner is an applicant for licensure as a general contractor by the Respondent. By operation of Subsection 489.107(4), Florida Statutes (2006),1 the Construction Industry Licensing Board (CILB) is divided into two Divisions. Division I has jurisdiction over the regulation of general contractors, building contractors, and residential contractors. Division II has jurisdiction over the regulation of all other contractors. Subsection 489.107(5), Florida Statutes, provides as follows: Five members of Division I constitute a quorum, and five members of Division II constitute a quorum. The combined divisions shall meet together at such times as the board deems necessary, but neither division, nor any committee thereof, shall take action on any matter under the jurisdiction of the other division. However, if either division is unable to obtain a quorum for the purpose of conducting disciplinary proceedings, it may request members of the other division, who are otherwise qualified to serve on the division unable to obtain a quorum, to join in its deliberations. Such additional members shall vote and count toward a quorum only during those disciplinary proceedings. (emphasis supplied) After the Petitioner's application was deemed complete, the application was referred to an "application committee" appointed by the CILB chairperson and assigned the responsibility of reviewing pending applications. There is no specific reference in either statute or rule codifying the application committee process. The application committee generally meets one day prior to the regularly scheduled meeting of the full CILB. Application materials are provided to members of the application committee. An applicant receives a letter signed by an employee of the CILB providing notice of the application review committee meeting at which the pending application will be considered. The notice includes the following statement: Statute or rule does not require attendance; however, it is in your best interest to attend so those questions that may arise during the committee's review can be answered. Failure to attend may result in denial of your application as a result of unanswered questions. Applications are commonly referred to the Board for review when an applicant or the business has a criminal history, liens or judgments on their credit report, bankruptcies, complaints or unlicensed activity cases against them. If you are unsure why your application has been referred to the board please contact me at the number listed below. (emphasis in letter) The letter clearly indicates that not all applications are reviewed by the full CILB, and accordingly, it is reasonable to presume that there are applications being approved without review by the full CILB. The Petitioner's application was reviewed by an application committee on two occasions. The parties stipulated that the application committee that considered the Petitioner's application was not composed of either five Division I or five Division II Board members. At the committee meeting of July 13, 2006, the Petitioner was granted a continuance apparently to obtain additional information for CILB consideration. The Order of Continuance issued by the CILB and dated August 7, 2006, stated that the Petitioner "agreed to waive the statutory 90 day requirement and appear before the Board in August, 2006." On August 10, 2006, the application committee made a recommendation to the full CILB that the Petitioner's application be denied. On August 11, 2006, the CILB unanimously voted to approve the committee recommendation. The parties stipulated that the full CILB (composed of at least five Division I and five Division II Board members) voted on August 11, 2006. The extent to which the application was reviewed by the full CILB prior to the vote is unclear, as is whether all application materials were provided to the full CILB prior to consideration of the Petitioner's application. Although the Petitioner has sought to obtain a transcript of the meeting, it has not been made available by the CILB. By Notice of Intent to Deny, dated August 30, 2006, the Petitioner set forth the grounds for the denial as follows: Applicant failed to provide proof of restitution associated with a prior order, which constitutes a basis for denial under Section 489.129(7) F.S. The prior order being referenced in the August 30 letter is a Final Order of the Hillsborough County Building Board of Adjustment dated June 21, 1997, wherein the Petitioner was directed to make restitution to a former client.
Findings Of Fact Based upon the stipulated record submitted by the parties, the following Findings of Facts arc made: Following the issuance of its October 13, 1989, jeopardy assessment against Petitioner, Respondent began its efforts to recover the monies allegedly owed by Petitioner. Collectable assets were identified. These identified assets included a bank account at Barnett Bank of South Florida, N.A. (Account No. 1595012259) in the name of John M. Brumley Racing Engines, Inc. (Corporation) with a balance of $176.29 and real property that appeared to be owned by the Corporation. Respondent gave written notice of its October 13, 1989, jeopardy assessment against Petitioner to Barnett Bank. In the notice, Respondent requested that the bank not transfer nor otherwise dispose of the funds in Account No 1595012259 without Respondent's consent. Subsequently, the bank notified Respondent that it had taken measures to comply with Respondent's request.
The Issue The issue to be determined in this proceeding is whether the Petitioner is entitled to attorney’s fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, Aaron Cox d/b/a Cox Construction, Inc., is a Florida corporation organized for profit. It is owned by Petitioner, Aaron Cox. Petitioner constitutes a “small business party” within the meaning of Section 57.111, Florida Statutes. On April 22, 2008, Jason Brown, a Department of Business and Professional Regulation (Department or DBPR) investigator, observed Cox and workers for Cox performing work on a roof that appeared to require a roofing contractor's license. Petitioner was doing framing work which did not require a license and removed some of the roof related to the framing work. Petitioner did not have a roofing contractor’s license. On June 20, 2008, Robert Marnick, another DBPR investigator taking over the case, issued Cox a “Uniform Disciplinary Citation – Unlicensed” pursuant to Florida Administrative Code Rule 61-32.003. The citation stated that Marnick had probable cause to believe that Cox had violated Section 489.127(1)(f), Florida Statutes, and sought a penalty of $2,500.00. Section 489.127(1)(f), Florida Statutes, provides that no person shall “engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization . . . without being duly registered or certified or having a certificate of authority.” Florida Administrative Code Rule 61-32.003, provides that citations imposing designated fines may be issued to unlicensed persons for violations under the following conditions: “1) there has been no prior citation, final order or Notice and Order to Cease and Desist to the subject; 2) there is no evidence of consumer harm in the current case; and 3) the subject has not previously held a license to practice the activity at issue.” Rule 61-32.003(4) also provides that citations for unlicensed practice of a profession shall include a statement that, in lieu of the citation, the subject may choose the administrative procedures in Section 455.225, Florida Statutes. The citation issued to Petitioner, however, contained the following statement: SUBJECT MUST CHOOSE ONE OF THE FOLLOWING: I choose to PAY the penalty/investigative costs (if any) on the citation. I choose to DISPUTE the citation and wish to have this case PROSECUTED under s. 455.225, Florida Statutes. The Citation had attached to it a form entitled "Legal Rights and Mailing Instructions." The form included the following information with respect to disputing the basis for the citation: The legal options available to you after you have been issued a citation are as follows: You may DISPUTE the facts alleged in the citation and elect to have the case formally prosecuted. In that case, you must check the appropriate box and return the original or a copy of the citation within 30 days of the date you were served. An Administrative Complaint will be filed thereafter and served upon you. If the Department prevails at the hearing, you may be required to pay a fine and any additional investigative or administrative costs associated with prosecution. Prosecution will be in accordance with Chapters 455 and 120, Florida Statutes, and the practice act governing the profession. . . . Petitioner disputed the citation on July 17, 2008, and Respondent began an investigation into the matter as required by Section 455.225(1)(a), Florida Statutes. Petitioner was notified of the investigation by letter dated August 28, 2008. Pursuant to Section 455.225(4), Florida Statutes, a determination of probable cause shall be made by a majority of the probable cause panel, or by the Department, as appropriate. For unlicensed activity the probable cause determination is made by the Department. If probable cause exists, the statute directs that the Department will file a formal complaint against the licensee. Section 455.225(5), Florida Statutes, provides that a formal hearing will then be held before an administrative law judge from the Division of Administrative Hearings pursuant to Chapter 120 if disputed issues of material fact arise after the Department files an administrative complaint. The Department attorney assigned to review the case determined that there was no probable cause to find a violation based on insufficient evidence. The case was closed and the Petitioner was notified. However, the notification letter sent to Petitioner does not specifically make any reference to the term "probable cause." Once notified, the Petitioner served his Request for Award of Attorney’s Fees and Costs Pursuant to Section 57.111, Florida Statutes. No administrative complaint was ever filed by the Department. No complaint was ever filed in circuit court. No notice of voluntary dismissal was filed. No settlement took place between the parties.
Findings Of Fact Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined: On August 16, 1991, respondent, Department of Professional Regulation (DPR), issued Request For Proposal No. 92-002 (RFP) in which it invited various firms to submit proposals for assisting DPR and the Florida Real Estate Commission (Commission) in the production and scoring of the Florida Real Estate and Appraisal Examination for the period beginning January 1, 1992, through June 30, 1993, with a renewal option of one to two years. Such proposals were to be filed no later than September 20, 1991. After all proposals were filed, the RFP called for an evaluation of such proposals by a six-person evaluation committee who would make a recommendation to the Secretary of DPR. In addition, the Commission made a non-binding recommendation to the Secretary who retained final authority to award the contract. Proposals were timely filed by three firms, including petitioner, Professional Testing Service, Inc. (PTS), Applied Measurement Professionals, Inc. (AMP), and National Assessment Institute. After an evaluation of the proposals was made, the committee recommended that the contract be awarded to AMP. By a 4-3 vote, the Commission concurred in this recommendation. Thereafter, on October 24, 1991, the Secretary selected AMP as the recipient of the contract. A protest was then filed by PTS, and after informal efforts to resolve the dispute were unsuccessful, the matter was forwarded to the Division of Administrative Hearings and was assigned Case No. 91-7429BID. An evidentiary hearing on the bid dispute was conducted on December 2, 1991. Thereafter, on January 3, 1992, a recommended order was issued recommending that AMP's proposal be found materially nonresponsive and that the contract be awarded to one of the other two vendors. It is noted that, with one minor exception, the recommended order found each of the grounds raised by PTS to be meritorious. On January 23, 1992, DPR issued a final order adopting in toto the findings of fact and conclusions of law and awarding the contract to PTS. That order was not appealed and is now final. Because it is undisputed that PTS is a corporation having its principal place of business in this state, has less than 25 full-time employees and a net worth of not more than $2 million, PTS is a prevailing small business party in Case No. 91-7429BID. Through affidavits attached to its petition, PTS has established that the requested amount of $12,049.93 in attorney's fees and costs is reasonable and accurate. Respondent does not contest the fact that petitioner incurred that amount of fees and costs in prosecuting the bid protest. Petitioner contends that there was no rational justification for DPR making an award of the contract to AMP since AMP's bid was clearly nonresponsive on its face and DPR had ample opportunity to ascertain those defects prior to the award of the contract. Findings of fact 27 through 30 in the recommended order issued in Case No. 91-7429BID and adopted by DPR in its Final Order establish that AMP's proposal filed on September 20, 1991, deviated in several material respects from the RFP. These included a failure by AMP to differentiate between costs incurred for candidates examined and candidates who were scheduled to take the examination but did not appear, the use of nine cost components to develop the cost per candidate scheduled instead of the eight components specified in the RFP, the proposed use of DPR personnel rather than its own personnel to provide unofficial grade reports to candidates at the examination site, and a failure to agree to establish an office in the greater Orlando area. All of these deficiencies were present in AMP's original proposal filed on September 20, 1991, and were known by both the evaluation committee and the DPR Secretary prior to the award of the contract. Indeed, this was confirmed by testimony adduced at the evidentiary hearing. In addition, there was an evidentiary showing that DPR allowed AMP to amend and clarify its proposal after all proposals had been filed and declined to enforce material requirements in the RFP. The lack of a reasonable basis in law or fact to justify the preliminary award of the contract to AMP was further corroborated by the statements contained in the affidavit of Charles E. Barner, Jr. Therefore, it is found that the agency was not substantially justified in initially awarding the contract for RFP-91-002 to AMP and that there were no special circumstances present which justified the agency's actions. There is no evidence to support a finding that the parties intended for Subsection 287.042(2)(c), Florida Statutes (1991) to apply to this proceeding. Indeed, it was not shown that petitioner was required to post a bond with DPR at the time it filed its formal written protest to the award of the contract, and the agency's final order did not contain a provision reimbursing PTS for "fees and charges excluding attorney's fees" incurred in prosecuting Case No. 91- 7429BID.
Findings Of Fact On October 5, 1989, Respondent filed an Order to Show Cause seeking to take disciplinary action against the certification of authority issued to Petitioner, The Administrators Corporation, and the insurance licenses issued to Petitioner, Charles N. Zalis. Petitioners timely requested a formal hearing, and the case was transferred to the Division of Administrative Hearings for the conduct of a formal hearing regarding the allegations contained in that Order to Show Cause. Upon receipt, the matter was assigned DOAH Case No. 89-5981. The final hearing in that disciplinary matter was conducted on May 14, 1990. Thereafter, a Recommended Order was entered on July 9, 1990, recommending to Respondent that a final order be entered finding Petitioners not guilty of the allegations contained in the Order to Show Cause and dismissing the Order to Show Cause filed against them. None of the parties filed exceptions to the Recommended Order. On August 15, 1990, the Treasurer and Insurance Commissioner entered a Final Order adopting in full the Findings of Fact, Conclusions of Law, and Recommendation contained within that Recommended Order; finding the Petitioners not guilty of the allegations contained in the Order to Show Cause filed against them, and dismissing the Order to Show Cause. On September 21, 1990, Petitioners filed with the Division of Administrative Hearings their Petitions for Costs and Fees, pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code. On September 27, 1990, an Initial Order was entered in each of the above-captioned causes. The Initial Order is a form order automatically prepared by the Clerk's Office and signed by the Director of the Division of Administrative Hearings in every case filed with the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes, except for those proceedings conducted on an expedited basis pursuant to statutory directives. The Initial Order advises the parties as to the name of the Hearing Officer assigned to hear the matter, provides certain procedural information, and solicits specific information from the parties so that the matter can be scheduled for an evidentiary hearing appropriately. On October 8, 1990, Respondent filed a joint Response to Initial Order on behalf of all parties, and on October 10, 1990, Respondent filed a joint Amended Response to Initial Order on behalf of all parties in this proceeding. The Amended Response to Initial Order advised that the parties had agreed that the final hearing should be scheduled for one day during the month of February, 1991, in Tallahassee. Pursuant to the agreement of the parties regarding the scheduling of the evidentiary hearing in this cause, on October 19, 1990, these causes were consolidated sua sponte, and a formal hearing was scheduled in these consolidated causes for February 14, 1991, in Tallahassee, Florida. No response by Respondent to either the Petition for Costs and Fees filed by The Administrators Corporation or the Petition for Costs and Fees filed by Charles N. Zalis has ever been filed in this cause even in the face of the Motion for Summary Final Order based upon Respondent's failure to respond. Accordingly, this matter is decided on the basis of the petitions filed in these consolidated causes, together with the documentation attached to those petitions, Petitioners' Motion for Summary Final Order, together with the documentation attached to that motion, and Respondent's Response to Motion for Summary Final Order. Since the Respondent has failed to controvert or dispute any of the factual allegations contained within those pleadings, there is no factual allegation in dispute in these consolidated causes. Petitioners are small business parties as defined by Section 57.111, Florida Statutes. By virtue of the Final Order entered in DOAH Case No. 89- 5981, Petitioners are prevailing small business parties in an administrative proceeding pursuant to Chapter 120 initiated by a state agency. The actions of Respondent both in initiating and in pursuing the Order to Show Cause filed in DOAH Case No. 89-5981 were substantially unjustified, and no special circumstance exists which would make unjust the award of attorney's fees and costs to Petitioners in these consolidated causes. The itemized affidavits filed in these consolidated causes reveal the nature, extent, and monetary value of the services rendered by Petitioners' attorneys, as well as the costs incurred in the underlying proceeding. Petitioners incurred attorney's fees in the amount of $49,581.25 and costs in the amount of $7,351.72 in the underlying administrative proceeding. The amounts of attorney's fees and costs claimed by Petitioners are reasonable and necessary. The Department of Insurance and Treasurer was not a nominal party only in the underlying administrative proceeding. Petitioners filed their Petitions for Costs and Fees within 60 days after the date that they became prevailing small business parties.
Findings Of Fact For purposes of the Motions to Dismiss filed by Agrico and the Department, the following findings of fact are based upon the pleadings in this case, matters to which the parties have stipulated, and DOAH Case Number 86-3618, as well as final agency action resulting therefrom: On or about August 26, 1986, Petitioners filed with the Department a petition for formal administrative proceeding which challenged the dredge and fill permit that the Department intended to issue to Agrico. The Department transmitted this matter to the Division of Administrative Hearings for hearing, and it was assigned to the undersigned Hearing Officer as DOAH Case Number 86- 3618. Petitioners relied upon Sections 120.57(1) and 403.412(5), Florida Statutes, to "initiate" DOAH Case Number 86-3618 as is clearly set forth in paragraph 20 of their Petition filed in that case. In their Motion for Fees and Costs at paragraph 3, Petitioners further allege, and thereby concede, that they "initiated the above styled proceeding (DOAH Case Number 86-3618)." A final hearing was scheduled to begin on April 28, 1987 in DOAH Case Number 86-3618. However by letter to the Department dated March 2, 1987, Agrico voluntarily withdrew its application for a dredge and fill permit which was the subject of that case. Thereafter, a telephone conference call was held on March 17, 1987, following which an Order Closing File was filed in DOAH Case Number 86-3618 on that same date, and jurisdiction was relinquished to the Department. The Final Order in Case Number 86-3618 was entered by the Department on May 18, 1987 which states: Upon consideration, it is ORDERED that the withdrawal of permit application number 53-1093999 is GRANTED with prejudice to further Department consideration of the application, but without prejudice to the future submission of another dredge and fill application covering the same tract of land covered by application number 53-1093999. The withdrawal of permit application number 53-1093999 divests the Department of jurisdiction to proceed with consideration of (Booker Creek and Manasota's) petition. Humana of Florida, Inc., v. Department of Health and Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986). Accordingly, the above-captioned case (DOAH Case Number 86-3618) is DISMISSED as moot. On July 16, 1987, Petitioners timely filed their Motion for Fees and Costs which was assigned to the undersigned Hearing Officer and given DOAH Case Number 87-3007F. Petitioners are each incorporated as not-for-profit corporations within the State of Florida, with principal off ices in Florida, and each having less than twenty-five full time employees, as well as a net worth of not more than two million dollars.
