Findings Of Fact During April or May 1988, Respondent solicited business as a private investigator from two credit unions in Hillsborough County, Florida. He approached employees of the credit unions and held himself out as a private investigator by discussing repossession services he could provide. He distributed a brochure and introductory materials describing the fees charged and services provided by Recovery, which included missing persons, child custody, investigations, escorts, surveillance, as well as repossessions. According to two former employees of Recovery, these solicitations continued through the Summer of 1988. The materials distributed to these credit unions by Respondent included a purported license number A-8700255 for Recovery issued by Petitioner on February 26, 1988. In fact, this license was a forgery, and had never been issued to Recovery. The license number shown on this forgery is that of another private investigative agency, the Boucher Agency located in Lutz, Florida. Respondent employed Janice Boucher during April and May 1988, for the specific purpose of using her license to operate Recovery. During an investigation into these matters in May 1988, Respondent gave to Petitioner's special investigator, Daniel Cabrera, a business card showing the name of Recovery with Boucher's license number. The card states that Recovery is "licensed," and includes the name of Respondent, as chairman. Finally, Respondent's business card represents that Recovery is specializing in collateral recovery. Respondent was responsible for, and ordered another employee of Recovery to prepare a forged license for Recovery using Boucher's license. Respondent was the owner of Recovery, at all times material hereto. Boucher did not authorize or participate in this forgery. In May 1988, Respondent obtained a Hillsborough County occupational license for Recovery which states it is for a "private investigative agency, Lic. A-8700255." The private investigative agency number shown on this occupational license is for the Boucher Agency, not Recovery. Neither Respondent nor Recovery have ever been licensed by Petitioner to engage in the business of a private investigative agency, and have never possessed either a "Class A" private investigative agency license, or a "Class C" private investigator license.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing an administrative fine in the amount of $2,000 on Respondent, Jack Warren. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 14th day of March, 1989. APPENDIX (DOAH CASE No. 88-4313) Rulings on Petitioner's Proposed Findings of Fact Adopted in Finding of Fact 6. Adopted in Findings of Fact 1, 4. 3-4. Adopted in Findings of Fact 1, 2. 5-6. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Findings of Fact 3,5. 9-10. Adopted in Findings of Fact 1, 4, but otherwise rejected as irrelevant. COPIES FURNISHED: R. Timothy Jansen, Esquire Department of State The Capitol Tallahassee, Florida 32399-0250 Jack Warren 1502 East Trampnell Road Plant City, Florida 33566 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
The Issue The issue is whether Petitioner Michael A. Crane, d/b/a Accent Builders of Florida, Inc., is entitled to an award of attorney's fees against Respondent, Department of Business and Professional Regulation, pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On October 14, 2005, Petitioner filed a Motion for Reimbursement of Attorney's Fees and Costs. Petitioner seeks reimbursement of attorney's fees and costs incurred in DOAH Case No. 04-4040PL, pursuant to Section 57.111, Florida Statutes. Petitioner is the prevailing party in the underlying proceeding, DOAH Case No. 04-4040PL. On September 23, 2005, the Construction Industry Licensing Board entered its Final Order in the underlying case, in which it adopted the Recommended Order entered in the DOAH proceeding, thereby dismissing the charges that Petitioner had violated certain provisions of Chapter 489, Florida Statutes. In the underlying proceeding, Respondent charged Michael A. Crane with violations of Chapter 489, Florida Statutes, in his capacity as a certified general contractor holding Florida license No. CGC8644. Petitioner had entered into the contract which gave rise to the underlying proceeding as Accent Builders of Florida, Inc. (Accent). Respondent's disciplinary action was not directed at Accent Builders of Florida, Inc., but at Petitioner as the qualifying agent for the company. Petitioner is not a sole proprietor of an unincorporated business. Petitioner is neither a partnership nor a corporation. Petitioner does business in Florida as Accent, but at the time the underlying proceeding was initiated, Petitioner had not applied for and been granted a certificate of authority for Accent through himself as the qualifying agent. In September 2004, while the underlying proceeding was pending, Petitioner applied for and was granted a certificate of authority for Accent with Michael A. Crane as the qualifying agent. Despite the fact that Petitioner was granted a certificate of authority for Accent, the underlying proceeding was brought against the certified general contractor, Michael A. Crane, not against Accent as a corporate entity. In order to determine whether the underlying action brought by Respondent against Petitioner was substantially justified at the time it was initiated by the Agency, the information that was before the probable cause panel that directed the filing of the Administrative Complaint must be examined. In the underlying matter giving rise to Petitioner's request for attorney's fees, the Probable Cause Panel had before it a 188-page Investigative Report, as well as three supplemental Investigative Reports related to the alleged defects in the construction performed by Petitioner. The Probable Cause Panel convened on April 27, 2004, at which time it made a finding of probable cause that Petitioner had violated Subsections 489.129(1)(g)1., (i), (k), and (m), Florida Statutes. The panel members reported that they had reviewed the investigative reports and draft complaints, and were advised by a member of the Attorney General's staff regarding their responsibilities in determining whether probable cause existed to file an Administrative Complaint against Petitioner. The consumer complaint accompanying the Investigative Report alleged that the contractor did not properly supervise the project; that the construction has resulted in numerous leaks; that the steam shower was not installed as required by the manufacturer; that the decking was not installed according to the manufacturer's instructions; and that most of the punch list items had been left unaddressed. The Investigative Report also contained Petitioner's response, which stated that Petitioner was precluded from correcting the deficiencies by the consumer, and that, although responsive to the consumer regarding the leaks, Petitioner saw no damage as a result of the leaks. The Investigative Report contained numerous documents describing the efforts of contractors hired by the consumer to remedy the leaks and alleged defects in construction. The report also included documentation of payments made by the consumer to the various contractors called in to eliminate the problems the consumer was experiencing. The Probable Cause Panel's review of the materials before it resulted in a determination that a reasonable investigation had been conducted, and that a reasonable person could conclude that sufficient evidence existed to charge Petitioner with violations of Chapter 489, Florida Statutes. At the time the Probable Cause Panel reviewed the Investigative Report, it appeared that Petitioner's work had resulted in water damage, and that a valid subcontractor's lien had been placed against the consumer's property resulting in financial harm. The Probable Cause Panel's determination to direct Respondent to file an Administrative Complaint had a reasonable basis in law and fact at the time it was made. Respondent was not a "nominal party" to the underlying proceeding according to the meaning of that term in Subsection 57.111(4)(d)1., Florida Statutes.
Findings Of Fact 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. 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. Ms. Ibanez was the only respondent named in the July 30, 1991 amended administrative (disciplinary) complaint, the only initiating document provided. 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. 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. 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. 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: 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,... 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. 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. 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. The rule challenge case, DOAH Case No. 91-3336R, was heard on August 1-2, 1991. The disciplinary case, DOAH Case No. 91-4100, was heard on August 27, 1991. 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/ 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. 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. 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. 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/ It is undisputed that Ms. Ibanez is the prevailing party in the underlying disciplinary case, DOAH Case No. 91-4100. 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. 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/ 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. 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. 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. 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) 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/ 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. "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/ "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/ "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/ 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/ 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.
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.
The Issue Whether petitioner is entitled to attorney's fees and costs as a prevailing small business party in Department of Health and Rehabilitative Services v. S.G., No. 90-4967C (HRS; July 30, 1991)?
Findings Of Fact By final order entered in Case No. 90-4967C on July 30, 1991, HRS granted S.G.'s request for expunction, reversing its initial position after S.G. prevailed in the formal administrative hearing, as reflected in the favorable recommended order entered June 20, 1991, attached as an appendix and hereby incorporated by reference. HRS's initial failure to expunge S.G.'s name from the abuse registry lacked substantial justification. At or before the point at which HRS originally denied S.G.'s request for expunction, it is true, Finley Holmes told an HRS investigator that G.F. was not an appropriate candidate for an adult congregate living facility (ACLF). But HRS knew no harm befell G.F. and that S.G., who is a registered nurse, was fully capable of giving skilled care. No HRS investigator spoke to Dr. Campbell, even though S.G. made clear to HRS investigators the reasonable basis for her belief that Dr. Campbell had discharged G.F. to the Elite Guest House. Among other things, the doctor had written a contemporaneous note directing one of his employees to "call Home Health Care and get someone to come to Elite." At all pertinent times, HRS had this note, Melvin's Deposition, p. 52, as well as G.F.'s guardian's letter to Dr. Campbell expressing his intention to move G.F. back to the Elite Guest House. One HRS investigator, Penny Melvin, acknowledged that there might have been a misunderstanding between S.G. and Dr. Campbell. Indeed, nothing known to HRS at the time or discovered since supports any other view (unless Dr. Campbell told S.G. one thing and changed his mind later, which would not reflect unfavorably on S.G.) S.G. and her husband own all the stock of the Elite Guest House, Inc., by the entireties. Combined net assets held by the corporation, S.G. and her husband do not amount to $2,000,000. Neither S.G., her husband, the corporation nor all of them together employ 25 full-time employees. The parties agree that S.G. has incurred in excess of $15,000 in attorney's fees and costs because HRS originally refused to expunge her name from the abuse registry. As of September 26, 1991, fees aggregated $10,125.00 and costs amounted to $3,142.50, and work has been done since. HRS issued its notice of confirmed report, No. 90-020322, on March 26, 1990, and, thereafter (possibly on April 23, 1990) but before May 18, 1990, initially denied S.G.'s request for expunction. S.G. requested the formal hearing in No. 90-4967C on May 18, 1990, disputing allegations in report No. 90- 020322 that she had neglected an aged person, G. F. Also in May of 1990, HRS renewed the Elite Guest House, Inc.'s license as an adult congregate living facility but only on condition that S.G. prevail in the formal hearing she had requested in Case No. 90-4967C. After entry of the recommended order in Case No. 90-4967C, HRS announced its intention to renew the ACLF license unconditionally.
Findings Of Fact Respondent, Mark P. Stanish, during times material held a Class "C" private investigator license issued pursuant to Chapter 493, Florida Statutes. During the period January, 1993 through April, 1993, Respondent advertised in local newspapers in and around Pasco County for "private investigators wanted". At least nine individuals responded to the advertisement placed by Respondent and appeared at meetings and seminars in Pasco County and were told by Respondent that, for a fee, his agency would train and license them and refer investigative cases to them subject to an independent contractor's agreement. At least three individuals paid Respondent $2,000 for training and the promise of being set up in a branch office with enough investigative work to earn $40,000 annually. After paying Respondent $3,000, Michael Straniere was given office space in Spring Hill, Florida and told to recruit as many investigators as possible. Straniere never received any investigative cases from Respondent or as a result of advertising in the local newspaper. Straniere received no training other than the sales pitch by Respondent to recruit as many investigators as possible, and that was the manner in which he could earn the salary that he was promised ($40,000 per annum). Ted Nizza was also made a similar solicitation by Respondent; however upon reflection, Nizza declined the solicitation when Respondent became defensive when Nizza suggested that it sounded like a pyramid scheme. Nizza, a former law enforcement officer in New York, did some background checks on Respondent's operations and learned that Respondent had no investigative work available, and that the manner in which monies would be earned, in the main, consisted of bringing in recruits and receiving a fee for each recruit selected, which recruits would pay a substantial fee ($1,000 or more) to be trained and licensed. In soliciting recruits, Respondent sought $1,995 for training or $3,000 for a management position. Respondent had no contracts for private investigative work during times material. At least four individuals gave Respondent down payments and deposits toward training, licensing and sponsorship for private investigative intern licenses. These deposits were in varying amounts from upwards of $200 to $1,000. Although seven recruits paid Respondent a fee to receive training to become licensed, only Straniere's license application was submitted to Petitioner for processing. In soliciting branch managers, Respondent told Nizza that the over- recruitment of private investigators and interns would not be problematic as there was a high turnover in the private investigation industry. During times material, neither Michael Straniere, Ted Steven Triola, Harry H. Orta, Robby L. Keen, Dorcas L. Stafford, Curtis J. Huff, or Joel Smith received any private investigative work from Respondent or through advertisements nor were they refunded any of the monies paid to Respondent. (proffered testimony) /2
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's Class "C" private investigator license. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of May, 1994. JAMES E. BRADWELL 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 2nd day of May, 1994.
The Issue The issue in this case is whether Petitioner is entitled to attorneys' fees.
Findings Of Fact On June 4, 1992, Respondent transmitted to the Division of Administrative Hearings file materials containing allegations that Petitioner was guilty of child abuse and Petitioner's demand for a hearing. The file was assigned DOAH Case No. 92-3396C. After several continunaces, DOAH Case No. 92-3396C was set for final hearing March 30, 1993, in Tampa. By letter dated March 23, 1993, Respondent, through the District Administrator of District 7, stated to Petitioner: [Respondent], during the trial preparation phase of this case, has voluntarily decided to reclassify your role in the incident in question. As a result of this reclassification, you are no longer identified as having committed abuse or neglect with respect to the alleged incident and the [abuse] report will be changed accordingly. On March 26, 1992, Respondent filed a motion to dismiss the case. On April 15, 1993, an Order Closing File was entered. On May 3, 1993, Petitioner commenced the above-styled proceeding by filing a Motion for Award of Attorney's Fees and Court Costs together with an affidavit of fees and costs. On May 7, 1993, Respondent filed a response demanding that the motion be dismissed. DOAH Case No. 92-3396C was initiated based on the complaints of a minor who charged that Petitioner, her uncle, had sexually abused her for six years on a weekly basis. Respondent's protective investigator spoke with the alleged victim, who repeated these charges, as well as to her parents, who believed her, and to a mental health counsellor, who either said she believed the alleged victim or at least did not say that she did not believe alleged victim. Petitioner steadfastly denied the charges. However, the protective investigator did not contact him prior to closing the case as proposed confirmed. Nor did the protective investigator contact the alleged victim's physician, who would have informed the protective investigator that physical examination of the vagina of the alleged victim disclosed no abnormal findings. The physician would have stated that the alleged victim evidently had not previously engaged in sexual intercourse, which would have contradicted the alleged victim's charges against Petitioner. The record does not disclose that the alleged victim ever recanted. The record contains no direct evidence of an improper purpose on the part of Respondent. In effect, Petitioner urges that such a purpose be inferred from the circumstances. As long as the alleged victim stood by her earlier statements, there remained a genuine issue of fact. Under all of the circumstances, her statement may not have been entitled to much weight. Perhaps evaluating the evidence in like manner, Respondent wisely concluded that its resources could be better directed than litigating DOAH Case No. 92-3396C. But the persistence of the alleged victim in charging Petitioner with sexual abuse undermines the inference that Respondent pursued the prosecution of Petitioner for an improper purpose. In the absence of stronger evidence contradicting the alleged victim's charges, Petitioner fails to show that Respondent maintained the prosecution for an improper purpose.
