The Issue At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act."
Findings Of Fact Findings relating to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes. At all times material hereto, Petitioner, Mounir Albert, D.D.S. (Dr. Albert), was licensed to practice dentistry in the State of Florida, having been issued license number DN 0010217. On September 2, 1997, the Department issued an Administrative Complaint against Dr. Albert (Agency Case Number 95-12645). The complaint charged that Dr. Albert was subject to disciplinary action under the provision of Subsection 466.028(1)(aa), Florida Statutes (1995), for having violated Subsection 455.241(1), Florida Statutes, by having failed, upon request, to furnish a patient in a timely manner, without delays for legal review, copies of all reports and records relating to the patient's examination or treatment, including x-rays and insurance information. For such violation, the Department proposed that one or more of the following penalties be imposed: . . . revocation or suspension of . . . [Dr. Albert's] license, restriction of . . . [Dr. Albert's] practice, imposition of an administrative fine, issuance of a reprimand, placement of . . . [Dr. Albert] on probation, and/or any other relief that the Board deems appropriate. Dr. Albert disputed the allegations of fact contained in the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct a formal hearing. The matter was assigned DOAH Case No. 97-5001, and a hearing was duly held on February 5, 1998. On March 9, 1998, a Recommended Order was rendered, which concluded that, while Dr. Albert failed to furnish the patient records on request, the Administrative Complaint should be dismissed. Central to such conclusion was the finding that: . . . while subsection 455.241(1) obligates the health care provider to provide, upon request, copies of a patient's medical records, subsection 455.241(4) also authorizes the health care provider to charge, for such service, the cost of duplication. Reading the provisions in pari materi, it is reasonable to conclude that, absent payment of the cost of duplication, a health care provider is under no obligation to provide a patient with copies of his records. Since the patient failed to pay Dr. Albert for the cost of duplication, as requested, it was resolved that Dr. Albert had not violated Subsection 455.241(1) as alleged in the Administrative Complaint. On June 9, 1998, the Board of Dentistry entered a Final Order in the underlying case. The Final Order approved and adopted the Findings of Fact and Conclusions of Law set forth in the Recommended Order, and dismissed the Administrative Complaint. Judicial review of the Final Order was not sought, and Petitioner timely filed the subject petition for attorney's fees and costs pursuant to Section 57.111, Florida Statutes. Findings relating to the claim for attorney's fees and costs Pertinent to Dr. Albert's claim for attorney's fees and costs, the Department has conceded that the underlying action was initiated by the Department, that Dr. Albert prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed.1 The Department has, however, denied that Dr. Albert was a "small business party" and, therefore, a "prevailing small business party," as those terms are defined by Section 57.111, Florida Statutes, and has affirmatively averred that its actions were "substantially justified." Given the circumstances, an award of reasonable attorney's fees and costs would be appropriate provided Dr. Albert can establish, by a preponderance of the evidence, that he was a "prevailing small business party" in the underlying proceeding and, if so, the Department fails to establish that its actions were "substantially justified." Addressing first Dr. Albert's status, it must be concluded that the proof fails to support the conclusion that at the time the underlying proceeding was initiated, or at any other time material hereto, Dr. Albert (the party to the underlying proceeding) was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes, and, consequently, the proof fails to support the conclusion that he was a "prevailing small business party," as required for compensation under the Florida Equal Access to Justice Act. See Section 57.111(4)(a), Florida Statutes. In so concluding, it is observed that the proof demonstrates that, at all times material, Dr. Albert practiced dentistry as an employee of a professional service corporation, Mounir Albert, D.D.S., P.A. (the corporation or business), as authorized by Chapter 621, Florida Statutes, and was not shown to be the sole proprietor of, or operate his dental practice or any other enterprise, as an unincorporated business. Having resolved that Dr. Albert was not shown to be a "prevailing small business party," and was, therefore, not eligible for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, it is not necessary to address whether the Department's actions were "substantially justified," when the underlying proceeding was initiated.
Findings Of Fact William L. McCallister was the Respondent in Dept. of State, Division of Licensing vs. William L. McCallister, DOAH Case No. 86-1480. The Department of State, Division of Licensing, initiated Case No. 86- 1480. In that action, the Department of State sought to revoke the detection of deception examiner's license of William L. McCallister. It also entered an emergency order of suspension. William L. McCallister was the prevailing party in DOAH Case No. 86- 1480. The total value of reasonable attorney's fees and costs in this proceeding is $15,000. The Department of State was not a nominal party in these proceedings. During 1985, William L. McCallister was the sole owner of McCallister Polygraph Service, Inc. During 1985, he was employed by the Polk County Sheriff's office as a sworn officer serving as Staff Polygraphist. When he conducted the polygraph examinations of the three complaining witnesses in DOAH Case No. 86-1480, he did so in fulfillment of his duties as Staff Polygraphist. McCallister Polygraph Service, Inc. was not a party in DOAH Case No. 86-1480. Prior to initiating proceedings in DOAH Case No. 86-1480, the Department of State conducted an adequate factual investigation of the allegations by Phyllis Langdale, Rose Giannotti, and Joanne Meyer. The evidence presented at final hearing regarding standards applied by the Department to detection of deception examiners in disciplinary proceedings describes the standards in effect at the time the complaint was filed.
The Issue Is Petitioner entitled under Section 57.111(4), Florida Statutes, to attorney's fees and costs incurred in DOAH Case No. 97-5194?
Findings Of Fact Outcome of Prior Administrative Proceeding Thomas A. Birkhead, d/b/a Century Center ("Birkhead," "Mr. Birkhead, or the "business") is a business in the form of a sole proprietorship. On August 4, 1997, the Division of Hotels and Restaurants (the "Division") served the business with a Notice to Show Cause. Seven weeks or so earlier, on June 13, 1997, the business had been served with an Emergency Order of Suspension. The Emergency Order suspended the business's license to operate a public lodging establishment in Cocoa Beach, Florida, as a nontransient rooming house. The license, bearing number 15-04001 H, had been issued to Mr. Birkhead by the Division. Mr. Birkhead requested a hearing on both the Emergency Order and the Notice to Show Cause. The request was referred to DOAH and assigned Case No. 97-5184. Unlike this case for fees and costs in which Mr. Severs has appeared in behalf of Mr. Birkhead, at no time during the pendency of DOAH Case No. 97-5184 did any attorney, including Mr. Severs, file a notice of appearance or appear in any capacity on behalf of Mr. Birkhead. The hearing held in April and June of 1998 (at which Mr. Birkhead appeared pro se) culminated in a Recommended Order issued October 1, 1998. The order recommended that the Notice to Show Cause be dismissed but that the Emergency Order be sustained. On May 14, 1998, the Division issued a Final Order. The Order makes no mention of Mr. Birkhead having been represented in any capacity other than pro se in post-recommended order proceedings. In acceptance of the advice of the Recommended Order, the Division dismissed the Notice to Show Cause. As for the recommendation with regard to the Emergency Order the final order stated: The Emergency Order of Suspension was a final order of the Division and subject to judicial review pursuant to section 120.60(6) and 120.68, Florida Statutes, not administrative review. Thus, the part of Birkhead's request for formal administrative review that pertained to the issuance of the Emergency Order of Suspension should have been dismissed for lack of jurisdiction. Final Order, page 9, Paragraph 16. Accordingly, the Division ordered that "Birkhead's Motion to Dismiss is hereby granted and the request for formal administrative review of the Emergency Order of Suspension is hereby dismissed." Final Order, page 10. Attorney's Fees and Costs When Case No. 97-5184 was initiated, Mr. Severs had long represented Mr. Birkhead as an attorney in various matters. His normal billing rate during the life of the case was $175 per hour. Although Mr. Severs did not appear as attorney of record in the administrative case, from the time the Emergency Order of Suspension was issued in June of 1997, through the issuance of the Final Order by the Department in Case No. 97-5184, Mr. Severs provided legal services to Mr. Birkhead. Some of the services were related to the administrative case; some were related to other matters. The fees for these services, related or unrelated, totaled $14,929.95, according to the petition filed in this case. An affidavit by Mr. Severs, attached to the petition, showed that only $4,860 of that amount was related to the administrative case. The related services were performed on at least fifteen occasions. Principally these included review and/or drafting of documents and consultation with regard to the reviewed or drafted documents. Mr. Severs' records demonstrate that at least 32.4 hours were expended in the performance of legal services related to Case No. 97-5184. (There were many telephone consultations not included in these hours because Mr. Severs moved from one firm, to his own firm, to the Titusville City Hall, where he is now the full-time City Attorney for the City of Titusville. Because of these transitions, phone records became unavailable.) At an hourly rate of $150 (the rate requested by Petitioner for this case, $25 below Mr. Severs' normal rate), total attorney's fees for 32.4 hours come to $4,860.00. These fees are reasonable. Court reporter costs in defending this action incurred by Mr. Birkhead totaled $478.50. He paid an expert witness fee in the amount of $200 to an engineer who testified in the proceeding. In addition, there were subpoenas for documents of $42; publications, such as the Fire Safety Manual 101, necessary to purchase in order to defend the case, in the amount of $49.35; photocopies of $48.10; office supplies of $56.12; postage and postage stamps of $173.52; and copier maintenance of $605.13. These costs total: $1,655.72. Mr. Birkhead also claimed additional costs of more than $10,000 used to maintain and operate the closed Century Center as an office for the duration of the administrative case. Mr. Birkhead explained this claim at hearing: The building that I was in there using as an office [Century Center] was shut down by the Division, so I could do nothing with it, except just work out of there myself to prepare this case, to work on the case. So, what I have given here is the direct charges of -- you know, that were during the time period for electricity and so forth. (Tr. 25). In addition to electricity, this sum includes charges for telephone, sanitation, pest control, water and sewer and fire extinguisher maintenance. Small Business Party The business's claim for attorney's fees and costs is filed under the authority of Section 57.111, Florida Statutes, a provision of the Florida Equal Access To Justice Act (the "Act.") Section 57.111(3)(d), Florida Statutes, of the Act defines the term "small business party," in pertinent part as: A sole proprietor of an unincorporated business . . . whose principal office is in this state, who is domiciled in this state, and whose business . . . 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. . . Mr. Birkhead is the sole proprietor of the business, Thomas A. Birkhead, d/b/a Century Center. The business is unincorporated. Its principal office is in Florida. Mr. Birkhead is domiciled in Florida and his business has less than 25 full-time employees. The only criterion left in order for Thomas A. Birkhead, d/b/a Century Center to qualify as a small business party is net worth. Is Mr. Birkhead's net worth "not more than $2 million including both personal and business investments . . ."? Net Worth Mr. Birkhead's undocumented testimony that his personal net worth and that of the business was less than two million dollars was not rebutted by any evidence offered by the Division. Cross examination revealed that Birkhead's net worth in June of 1997 was certainly in excess of $1.5 million. How much in excess could not be determined because his calculation of net worth was anything but precise as shown from Mr. Birkhead's testimony: Q What is the value of the hotel located across the street from the Century Center? A The value of the hotel at that time, I believe was one and a half million dollars . . . Q What portion of the hotel did you own? A Um? Q What portion of the hotel did you own? A Two thirds. Two thirds of the stock. * * * Q . . . And what was the Century Center worth [in June of 97]? * * * A Well, I had a mortgage against it for two hundred and some thousand dollars. I gave, I believe, five hundred something. So, five hundred and something minus two, whatever it was, forty or fifty thousand, two hundred and thirty five or forty thousand. It would leave three hundred thousand dollars. Q . . . Your testimony is that you've had an equity in the Century Center of three hundred thousand dollars? A That was my intention, to say that. Yes. I subtracted out in my mind the mortgage that I had against the property, versus what I had paid for it. Q And when did you purchase it? A I purchased it . . .in 1990. Q But you don't . . . know what the value was in 1997? A Not at the Century Center. * * * Q . . . What other properties did you own, besides the Century Center, the hotel and the condo in Cape Canaveral? A I own my house. Q How much is it worth? A Well I paid sixty five thousand for it, I believe. It's probably worth a little bit more than that now. * * * JUDGE: When did you buy it? * * * WITNESS: When did I buy it? I bought it in -- let's see. Twenty five years ago or more. * * * Q Was there any other property that we didn't cover so far that you owned at that time? A Let me think a little bit. Yeah. I've got one in Cape Canaveral. It's an empty lot up there. I think I paid very little for it. I bought it because it was cheap. It's the only reason I've still got the thing. I think I gave eighteen hundred dollars for it or something like that. It think it would be worth more than that now. I don't know exactly what it would be worth. Try to sell it. These lots go up, you know, they might be worth fifteen to twenty thousand dollars. I can't -- I can't give you an exact figure on that. JUDGE: When did you buy it? * * * A . . . April of 1967, I believe. * * * JUDGE: . . . What Mr. Biggins is getting at is he wants to know about all our your personal and business investments and what their . . . net worth is. And you said you made a list and you went through and you figured this out. WITNESS: Say what? JUDGE: You said that you figured this out before you filed this motion for attorney's fees . . . WITNESS: Yeah. I called and got the figures as to what I had in June of '97. And I looked at, you know, statements that I had, and this that and the other thing, and added it all up. . . Some of the things, like I say, are joint with my wife. JUDGE: Yes, sir. But what were those things? That's what I want to know. You say you did this calculation. You got together all this information. Now, what information was it and what did the information show? WITNESS: Well, it showed the value of the things that I had in June of '97. JUDGE: And what were those things? What information did you obtain? WITNESS: Well, bank accounts, stock brokers, whatever I could, you know, had money in. JUDGE: . . . What was the value of the bank accounts? WITNESS: Not a whole lot. I don't think I probably had over -- I'm guessing a little bit now. You know, three or four thousand dollars. JUDGE: How about stock? WITNESS: Um? JUDGE: Stock? WITNESS: Stock, what? JUDGE: Equities. WITNESS: Um? JUDGE: Equities? New York Stock Exchange? WITNESS: Well, my stock is largely in a joint account with my wife. And . . . JUDGE: . . . You have control of it? WITNESS: Um? JUDGE: You have control of it? WITNESS: Well, either one of us could be called in control. It's joint . . . with right of survivorship. JUDGE: . . . Did you include the value of that stock in this calculation you did? WITNESS: I believe I did. Yes sir. JUDGE: . . . And what was the value of that stock? WITNESS: I can't recall, Your Honor, exactly what it was. JUDGE: Well, we've been . . . dealing with approximations here. So, do your best. WITNESS: Well, it's a joint account. JUDGE: And what's the value of the account? WITNESS: . . . I think it's somewhere in the neighborhood of probably seventy five or a hundred thousand dollars. JUDGE: And you can't do any better than that? WITNESS: Um? JUDGE: You can't pinpoint it any more than that, a twenty five thousand dollar swing? WITNESS: I can't to be honest with you, Your Honor . . . (Tr. 38-50). Mr. Birkhead's testimony also revealed that he owned two "low priced condos in Cape Canaveral" (Tr. 36) held as rental property. At the time he purchased them, Mr. Birkhead "gave twenty four thousand and change for them." Id. Asked when they were purchased, Mr. Birkhead replied, "I'm not sure. Before 1997." When asked to approximate when they were purchased, Mr. Birkhead testified, "Five, ten years. I don't know." Id.
The Issue The dispute in this case arises out of Respondent's attempt to collect alleged salary overpayments from Petitioner, a former state employee who allegedly continued to be paid wages after resigning her position with Respondent.
Findings Of Fact Having determined, for the reasons set forth below, that the Department lacks subject matter jurisdiction to adjudicate the instant claim for "money had and received" against its former employee, the undersigned declines to make findings of fact, as such would be a nullity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing this administrative proceeding for lack of subject matter jurisdiction. DONE AND ENTERED this 4th day of November, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2005.
The Issue Whether Petitioner should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act (the Act), Section 57.111, Florida Statutes.
Findings Of Fact These proceedings arise out of DOAH Case No. 01-2928, Department of Health, Board of Physical Therapy v. Raymond H. Cralle. There, a Recommended Order was entered on November 27, 2001, which recommended entry of a final order dismissing all charges against Petitioner. On February 8, 2002, Respondent filed with the Division of Administrative Hearings a final order of dismissal in that case. Petitioner, the prevailing small business party within the meaning of Section 57.111, Florida Statutes, timely filed his request for fees and costs pursuant to the Act. Respondent does not dispute the reasonableness of the attorney's fees claimed in the total amount of $10,050.00, nor does it dispute that costs in the amount of $2,655.95 were incurred by Cralle in the underlying case. The entire record in this case, which includes a transcript of the probable cause hearing, considered in light of the entire record in Case No. 01-2928, establishes that the total amount of fees and costs claimed here were necessarily and reasonably incurred in the successful defense of the administrative charges. In opposition to Cralle's request for reimbursement pursuant to the provisions of the Act, Respondent argues that the case falls within an exception for proceedings which were "substantially justified" at the time the charges were brought. The crux of Respondent's argument is that "[the] Administrative Law Judge decided the case primarily on the basis that, in her belief, based on the demeanor of the complainant, [Respondent] was more credible than the complainant." Respondent's argument requires that material facts be ignored. In the underlying case, Respondent had the burden to prove the administrative charges by clear and convincing evidence. Yet its factual case was based exclusively upon the testimony of Helen Mesa (Mesa). Mesa's demeanor was just one of several things noted in the Recommended Order which cast doubt upon her credibility. At the time of the probable cause hearing, it was known, or at least knowable, that Mesa fit the profile of the stereotypical "disgruntled former employee." At least a half dozen witnesses could have been expected to corroborate Mesa's testimony, and at the probable cause stage of the proceedings, Respondent's own expert recommended that at least some of these individuals be found and interviewed. With this red flag flying, and Cralle's attorney protesting that Mesa's story should be corroborated in some fashion before the litigation process was set in motion, Respondent elected to proceed on a needlessly thin investigation.
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 issues to be resolved in this proceeding concern whether the Petitioner is entitled to recover attorney's fees and costs incurred as a result of prevailing in the underlying case of Florida Elections Commission vs. Catherine King, Case No. 98-1256, Final Order entered December 11, 1998, based on the authority of Section 57.111, Florida Statutes.
Findings Of Fact This proceeding commenced when the Respondent entered an Order of Probable Cause on November 7, 1997. The Petitioner herein requested a formal hearing on the allegations upon which the agency had found probable cause. The formal hearing was held in the above-referenced underlying case (98-1256) on July 10, 1998. A Recommended Order was thereafter entered finding that the Petitioner had not committed any of the election law violations that Respondent herein had alleged in its order of probable cause. Thereafter, on December 11, 1998, the Respondent entered a Final Order by which it adopted the Recommended Order in Case No. 98-1256, in its entirety. In that Final Order, the Respondent "accepted the Findings of Fact, Conclusions of Law and Recommendation" of the Administrative Law Judge. The Petitioner, Catherine King, was the prevailing party (Respondent) in the underlying action which had been initiated by the Florida Elections Commission, the Respondent in this proceeding. Neither party has appealed the Respondent's Final Order in Ms. King's favor and indeed it is undisputed that she is a "prevailing party." The Respondent was not merely a nominal party in that underlying case. There are no existing circumstances which would make an award of attorney's fees and costs unjust in this action and indeed the Respondent herein has agreed that that is the case. The attorney's fees and costs which the Petitioner incurred in the underlying proceeding total $8,109.20. There is no dispute that they are reasonable. The Petitioner actually expended that amount for fees and costs. The attorney's fees incurred by the Petitioner in this proceeding through April 9, 1999, are in the amount of $1,440.00. Those fees are shown to be reasonable. The Petitioner has paid some of the fees but has not yet been billed for all of the fees incurred during the month of April, 1999. The Petitioner was the sole proprietor of an unincorporated business located in Walton County, Florida, and she herself was domiciled in Walton County, Florida, at the time the underlying action was initiated by the Respondent agency. Her business is known as "Quick Retrieval." It is unincorporated and had less than twenty-five employees and a net worth of less than two million dollars including both the Petitioner's business and personal investments at the time the action was initiated by the Respondent. Indeed its only employee is the Petitioner. It has not been established that the Petitioner is a "small business party" for purposes of Section 57.111(3)(d)1.a. and b., Florida Statutes, however. Although proof offered by the Petitioner at hearing established that she has a "small business" and, as found above, it meets the employee compliment and net worth threshold requirements in order to recover attorney's fees under the Florida Equal Access to Justice Act (Section 57.111, Florida Statutes), it has not been demonstrated that the Petitioner is a prevailing small business party. Although the Petitioner demonstrated that she had an unincorporated business of which she is the sole proprietor, the Petitioner's proof does not establish that the action initiated by the agency, from which she seeks to recover fees and costs, was initiated against her as the proprietor of a small business. Rather, that action, the probable cause order issued by the Respondent, Florida Elections Commission, was against her in her personal capacity as an office holder or one seeking to hold office as Clerk of the Court in Walton County. The action was the agency's attempt to re-dress what it had alleged was an election law violation by the Petitioner personally. The action initiated by the agency in the underlying case had nothing to do with the Petitioner's capacity as the proprietor of a small business. For instance, no license of that business was in jeopardy by the Respondent agency's action and none of the facets of the operation of the Petitioner's business was in any way jeopardized or subjected to any potential fine, penalty or sanction by the action initiated by the agency in the underlying case. The Petitioner's business was not a party to nor in anyway related to the subject matter of the underlying proceeding pertaining hereto. The Petitioner offered no evidence to indicate that her participation in the underlying proceeding was as the sole proprietor of an unincorporated business party to the subject action. That is, it was not the activities of the business which were in question. Thus, that element necessary to recovery of an attorney's fee, pursuant to Section 57.111, Florida Statutes, has not been proven. 1/
Findings Of Fact This cause originated in a disciplinary action resulting from an administrative complaint filed by the Department of Professional Regulation, Division of Real Estate against the Petitioners herein, Malcolm Lewis Hardy and Aquatic Realty, Inc. The Petitioners herein were the Respondents in the licensure disciplinary proceeding. That proceeding was resolved in their favor by the Recommended Order of the Hearing Officer and by the Final Order filed April 15, 1988 by the Department of Professional Regulation. They have accordingly filed a request for attorney's fees and costs on the ground that the prosecution involved in the underlying case was not "substantially justified." The cause came on for a brief hearing. The parties elected to dispense with calling witnesses at the hearing because they entered into a factual stipulation whereby all germane facts were placed of record. It was thus established that Petitioners Malcolm Lewis Hardy and Aquatic Realty, Inc. (hereafter Hardy) were the Respondents in a licensure disciplinary action brought against them by the above-named Respondent. That disciplinary action was resolved by Final Order filed April 15, 1988 by the Department of Professional Regulation. The Respondents in that case, the Petitioners herein, were totally absolved of any wrongdoing with regard to the charges in the administrative complaint in that proceeding. A copy of that Final Order was mailed by the agency to "Diane Cleavinger, Esquire, 300 East 15th Street, Panama City, Florida 32405." Ms. Jan Nelson, a secretary at that address, and employed by Ms. Cleavinger's former law firm, received a copy of that order and executed the return receipt appearing on the envelope on April 18, 1988. Ms. Nelson was not Ms. Cleavinger's secretary, but rather the secretary of Ms. Fitzpatrick, one of Ms. Cleavinger's former law partners. In any event, Ms. Nelson executed the return receipt on April 18, 1988, but Ms. Cleavinger never received the Final Order nor notification of its filing or receipt by Ms. Nelson. Mr. Hardy never became aware of or received a copy of the Final Order either, until the agency sent another copy to him on September 12, 1988. The affidavit and request for attorney's fees was filed within sixty days of that date. Ms. Cleavinger had left her law firm on January 1, 1988 to become a Hearing Officer with the Division of Administrative Hearings. Mr. Hardy only learned of the Order when he made a direct contact with the Department of Professional Regulation and they learned that he had not received the Final Order. It was thus mailed to him on September 12, 1988 and received on September 14, 1988. That Order dismissed all claims against Hardy and Aquatic Realty, Inc. and thus those parties are in fact "prevailing, small business parties," within the meaning of Section 57.111, Florida Statutes. It was stipulated at hearing, as well, that these Petitioners are small business, prevailing parties and that they incurred attorney's fees in the amount of $1,642.04 for services rendered by Ms. Cleavinger when she represented them in the underlying case-in-chief and that costs amount to $333.71. Additionally, Mr. Hardy further incurred attorney's fees and costs in the amount of $500 in connection with the pursuit of this fee claim by attorney Whitton. It was stipulated that that amount is reasonable. Additionally, the Department accepted its burden of establishing that its action was "substantially justified," within the meaning of Section 57.111, Florida Statutes, and have stipulated that they have not done so. Thus the only issue for resolution concerns whether the claim of Hardy was time-barred.
