Findings Of Fact In July, 1992, the Department of Health and Rehabilitative Services (HRS) published notice soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services HRS District VI. The services were to be provided from October 1, 1992, through June 30, 1993. (Exhibit #4). Within relevant deadlines, protests to the written specifications of the solicitation were filed by Petitioner, Donald W. Belveal, and others. HRS determined that material disputes of fact existed and the protests were referred to the Division of Administrative Hearings (DOAH) where the cases were consolidated and set for final hearing. (Exhibit #5) Hearing Officer, Veronica Donnelly, conducted the hearing and issued a recommended order on December 22, 1993, recommending that the specifications be rejected as flawed and that they be extensively revised. (Exhibit #5). Exceptions were filed, and upon a suggestion of mootness HRS entered a final order on March 17, 1993, dismissing the proceedings and finding further: No Final Order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees. The request for a determination of attorney fees is DENIED. The request to dismiss the department's exceptions to the Recommended Order is DENIED. (Exhibit #6) Donald Belveal appealed this final order to the Second District Court of Appeal. The full opinion of the court in Donald W. Belveal v. State of Florida, Department of Health and Rehabilitative Services, case no. 93-01121, dated February 25, 1994, provides: The law firm of Donald Belveal appeals a final agency order entered by the Florida Department of Health and Rehabilitative Services (HRS) which dismisses administrative proceedings and denied Belveal's motion for attorney's fees and costs under section 57.111(4), Florida Statutes (1991) on the ground that Belveal was not a prevailing party. We reverse. Belveal and other lawyers formally protested a bid solicitation package prepared by HRS to procure legal services for its child support program in Hillsborough County. The Department of Administrative Hearings (DOAH) held a formal hearing after which the hearing officer entered a recommended order that the package be revised, citing numerous improprieties. HRS filed excep- tions to the order. In addition, to prevent a lapse in services during the protest proceedings, HRS extended the existing contract for legal services to cover the remainder of the bid proposal period. Arguing that the extension nullified the bid solicitation and rendered the administrative contest moot, Belveal and the others filed a motion to dismiss the exceptions. They also asked that the case be remanded to DOAH for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, section 57.111(4), Florida Statutes (1991). The deputy secretary for human services of HRS entered a "final order" which concluded that Belveal's motion to dismiss/suggestion of mootness was tantamount to a request that the proceedings be discontinued. The department dismissed the proceedings, denied the request to dismiss HRS's exceptions, and denied the request for attorney's fees stating, "[n]o final order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees." HRS exceeded its authority in entering this order. First, the dismissal of the action exceeded the scope of the motion to dismiss the exceptions. Second, the determination of whether Belveal was a prevailing party entitled to attorney's fees and costs was solely within the jurisdiction of the DOAH hearing officer. See Dep't. of Health and Rehabilitative Services v. S. G., 613 So. 2d 1380, 1384 n.1 (Fla. 1st DCA 1993). Because HRS denied the motion to dismiss the exceptions yet never ruled on the hearing officer's recommended order, we remand the case to HRS for further proceedings in accordance with section 120.57, Florida Statutes. Reversed; remanded. In addition, the appellate court issued its order granting fees in the appeal, "...provided that appellant is ultimately the prevailing party in the proceeding below." (Exhibit #2) HRS entered its corrected final order on June 22, 1994, finding the case to be moot with the exception of the attorney's fees issue, acknowledging that the agency is without jurisdiction to determine who is the prevailing party and entitled to fees, and dismissing the case. (Exhibit #4) It is undisputed that Donald Belveal is a small business party. (Respondent's proposed final order, paragraph 8). Donald Belveal claims total fees of $21,292.25, incurred in the administrative proceeding, which fees are based on 121.67 hours at an hourly rate of $175. He claims additional fees for the appeal. (Exhibit #3) As stipulated, the claimed fees are reasonable, but the award may not exceed $15,000. (Respondent's proposed final order, paragraph 9.)
Findings Of Fact On August 17, 1989, the Executive Board acting for the Local Elected Officials of the Heartland Employment and Training Consortium, voted to terminate Clifton Thomas, Jr., from his position as Executive Director of the Heartland Private Industry Council. At the time of his termination from employment, Mr. Thomas was being paid the sum of $47,528 per annum. Mr. Thomas' salary was established on an annual basis by the Executive Board. On or about December 1, 1989, Mr. Thomas, acting through his attorney, Mr. Robert McKee, notified E. John Dinkel, III, acting as counsel for the Executive Board, that he intended to file a law suit against the Heartland Employment and Training Consortium and its Executive Board. The complaint to be filed in the United States District Court, Middle District of Florida, Tampa, Division, demanded equitable relief and damages and alleged that Mr. Thomas was fired without justification and "was not accorded due process." Mr. Dinkel, acting as counsel for the Executive Board, was able to obtain agreement from Mr. McKee, acting as counsel for Mr. Thomas, that the complaint would be dropped upon payment of $24,096 to Mr. Thomas. At a regularly scheduled meeting of the Heartland Private Industry Council held on December 14, 1989, the Council voted to concur in a payment of $24,096 to Mr. Thomas to avoid the cost of litigation. It was understood and agreed that a statement would be signed by Mr. Thomas denying any liability or wrongdoing by any of the parties to the action. At a specially convened meeting of the Executive Board of the Heartland Consortium held on December 15, 1989, the Board unanimously agreed to the settlement. On December 21, 1989, a check in the amount of $21,598.40 was issued to Mr. Thomas. This amount represented the agreed upon amount minus a levy from the Internal Revenue Service. The check (#010471) was charged to the pooled administrative funds from allocations through State of JTPA formula monies. In consideration of the above payment, Mr. Thomas gave up his threatened law suit and signed a statement, dated December 22, 1989, denying any wrongdoing on the part of the Executive Board, the Heartland Private Industry Council and any officers or employees of the Board or Council. In the annual audit of the Heartland Private Industry Council conducted by Grant Thornton, Accountants and Management Consultants, the use of JTPA monies to pay the former Executive Director was questioned. The auditor stated: "The use of JTPA funds in settlement of legal claims was determined by Florida Department of Labor and Employment Security to be an unallowable cost under State and Federal law as indicated in a letter to the Council's attorney dated November 6, 1989, therefore this is a questioned cost." On September 30, 1991, the Heartland Private Industry Council received notification from Patricia S. Gilbert, Director, DLET that the costs questioned by the auditor were disallowed. No reason other than that cited by the auditor was given. On October 24, 1991, Heartland Private Industry Council, Inc., notified the Department of Labor of their intent to appeal the disallowed cost. On November 1, 1991, Jack E. Lyons, Executive Director of the Heartland Private Industry Council, wrote a letter to Secretary Scruggs, questioning the applicability of the statutes, both State and Federal, that were cited by the auditor in the statement of questioned costs. At a regularly scheduled meeting of the Heartland Private Industry Council held on April 17, 1992, the Council denied any misapplication of Federal JTPA dollars and voted to not permit the Executive Director to settle the disallowed costs by payment from non-JTPA dollars. The attached documentation styled Index of Exhibits, containing fourteen (14) exhibits is incorporated by reference into the proposed Statement of Facts.
Recommendation It is recommended that a Final Order be entered finding the payment to Clifton Thomas, Jr., of $24,096 in settlement of his law suit against the Heartland Private Industry Council Inc. to be a nonallowable cost and improperly charged to federally provided funds. RECOMMENDED this 29th day of July, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992. COPIES FURNISHED: Larry R. Jackson, Esquire 300 Parkview Place Lakeland, FL 33805 Carolyn Cummings, Esquire Hartman Building, Suite 307-2102 Capitol Circle SE Tallahassee, FL 32399 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152
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.
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 Department of Environmental Regulation issued a Reguest for Statement of Qualification for Petroleum Site Cleanup Services, Solicitation #9111C. Attachment F to the solicitation sought information related to utilization of minority business enterprises as subcontractors. Points were available for said utilization. The Department awarded zero points to parties which failed to include the three pages of the attachment in the responses to the solicitation. The issue in this case is whether the Department acted in accordance with law in awarding zero points for failure to submit all three pages of Attachment F.
Findings Of Fact On March 1, 1991, The Department of Environmental Regulation (DER) issued a Request for Statement of Qualifications (RFSOQ) for Petroleum Contamination Site Cleanup Services, Solicitation #9111C. As stated in the RFSOQ, the DER's objective is to enter into approximately ten contracts for petroleum cleanup services with contractors most qualified to perform the services. It is in the best interests of the state and the DER to enter into such contracts with the most qualified contractors available. Selected firms will be placed under contract with the DER to respond to task assignments. There is no work guaranteed to any contractor as a result of being selected and placed under contract. The cover sheet to the DER Solicitation #9111C identifies Attachment B as "General Instructions", Attachment C as "Instructions for Preparation of an SOQ", Attachment F as "Minority Business Certificate" and Attachment N as an "SOQ Checklist." In the RFSOQ, the DER specifically reserved the right to waive minor irregularities. The general instructions set forth at Attachment B provide, that the DER "may waive minor informalities or irregularities in the SOQs received where such are merely a matter of form and not substance, and the corrections of which are not prejudicial to other contractors." The DER is not required to waive all minor irregularities. The ability to waive such defects is within the jurisdiction of the agency. The evidence establishes that the DER applied such discretion consistently. There is no evidence that, at any time prior to the SOQ opening, did the Petitioner or Intervenors seek additional information from the DER regarding the agency's discretion to waive minor irregularities. Attachment C provides that "ANY AND ALL INFORMATION SUBMITTED BY A CONTRACTOR IN VARIANCE WITH THESE INSTRUCTIONS WILL NOT BE REVIEWED OR EVALUATED (e.g. pages beyond the 20-page SOQ limit will not be reviewed) or may result in the response being deemed non-responsive and rejected as noted." The purpose of the statement was to discourage responders from submitting information beyond that required by the RFSOQ, in order to provide a common basis for the evaluation of all SOQs submitted. The provision also provided the DER with the ability to reject an SOQ which failed to substantially comply with the agency's solicitation. Attachment C states that an SOQ shall consist of three parts, a one- page transmittal letter, a 20-page SOQ, and "other required information". According to Attachment C, the SOQ was to contain an introduction, a section on the company's background, a statement of experience and knowledge related to the qualifications required by the RFSOQ, a description of project organization and management appropriate to the tasks assigned, a list of personnel responsible for completion of assigned task, a list of "a minimum of ten separate and verifiable former clients other than the FDER" and related information. Work performed for the DER was to be set forth separately in addition to the ten non-DER clients. "Other required information" included minority business utilization information. Attachment C provides as follows: Contractors submitting SOQs under this solicitation must identify intended minority subcontractors and estimated percentage of total contract amount to be awarded to minority firms on Attachment F of this Request for Statement of Qualifications. Use of any document other that Attachment F shall result in disallowance of any credit for use of minority subcontractors. (emphasis supplied.) Evaluation points were available on a scaled basis to contractors based upon their commitment to utilization of minority businesses enterprises in their SOQs. Attachment B provides that "Minority Business Utilization will be evaluated. provided that the responder complies with the reporting requirements contained in Attachment F...." (emphasis supplied.) Attachment F, page 1 of 3, provides as follows: Directions: Each contractor and/or subcontractor which meets the definition of a certified small minority business, as described below, shall submit an originally signed copy of page 1 of this Attachment in the response package to this solicitation. If more than one minority business is to be used, the prime contractor shall copy this page and have each minority business complete that copy as though it were an original. A prime contractor which intends to utilize subcontractors meeting the definition of small minority business is responsible for completing page 2 of this Attachment. A prime contractor which meets the definition of a small minority business is responsible for completing page 3 of this Attachment. If a particular page of this Attachment is not applicable, the prime contractor shall so indicate on that page and include the page as part of the response package. At a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit-- this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization. (emphasis supplied.) Attachment N, the "SOQ checklist," provides a list of items which are to be "properly completed, signed and enclosed" in order to "ensure that your SOQ is responsive to FDER Solicitation No. 9111C...." Item 3.b. of Attachment N reads: "Minority Business Utilization Form - if applicable (Attachment F)". As stated in Attachment B to the RFSOQ, on March 13, 1991, a mandatory pre-bid meeting was held in Tallahassee, Florida, at the DER's offices for all contractors wishing to submit a Statement of Qualifications (SOQ). Failure to attend the meeting would have resulted in rejection of SOQs submitted by non- attending contractors. The Petitioner and Intervenors were represented at the pre-bid meeting. The meeting provided an opportunity during the solicitation process to have technical, legal or administrative questions answered. Accordingly, potential responders are expected to have read the complete RFSOQ prior to the meeting. At the pre-bid meeting, the DER did not review every part of the solicitation, but invited questions from participants. The DER official conducting the meeting stated that "any and all information submitted by a contractor in variance with these instructions will not be reviewed or evaluated," however, the other directions provided in the RFSOQ were otherwise reviewed only upon request. Although there was a specific discussion of the requirements for reporting proposed minority business utilization, there were no questions asked with regard to the requirements for completion of Attachment F. There were no questions asked regarding the DER's right to waive irregularities, or whether the failure to submit Attachment F in accordance with the directions would be regarded by the agency as a minor irregularity. Potential responders also had an opportunity to submit written questions prior to a time certain. There is no evidence that questions were raised related to the requirements of Attachment F or to the DER's application of it's discretionary authority to waive minor irregularities. On March 22, 1991, the DER issued an addendum, not material to this case, to the Request for SOQs. The addendum was sent by certified mail to each contractor represented at the March 13, 1991 meeting. On March 27, 1991, a second addendum was sent to each contractor. The addendum, among other things, changed the date for submission of an SOQ from April 1, 1991 to April 15, 1991 at 2:00 P.M. On April 15, 1991, SOQs were submitted by the Petitioner and Intervenors in this case. The bids were opened at 2:00 P.M. or shortly thereafter, and subsequently evaluated and scored by DER personnel. In some categories, points were awarded on a weighted basis, which provided a relative ranking of responders. For example, the prime contractor with the highest minority business enterprise subcontractor utilization received 13 points, with lesser ranked contractors receiving fewer points. On June 3, 1991, at 10:05 A.M. bid tabulation results were posted in the DER's contract office. The Petitioner and Intervenors in this case submitted responsive SOQ's to DER solicitation #9111C. The result of the DER's evaluation was the development of a short list of contractors permitted to make oral presentations to agency officials after which the DER will initiate contract discussions with approximately ten contractors. The SOQs were reviewed by DER officials who initially identified information submitted which did not comply with the requirements of the RFSOQ. Irregularities were identified and discussed with DER legal counsel to determine the materiality of the irregularity and to ascertain the appropriate treatment of the defects. The DER officials did not disclose the identity of the responder during the discussions, although the person identifying the defect was aware of the related responder. However, there is no evidence that the three DER officials were aware of an individual non-complying contractor's identity, or that the decision to waive such irregularities was based upon the identity of the participants. The DER determined that, in order to be equitable to all participants, it would not waive irregularities where the directions were clear and the consequences for noncompliance were specifically set forth. If the solicitation were less clear, or the consequence of noncompliance with the requirement was not specifically identified, the Department attempted to be more lenient regarding the waiver of such irregularities. Where the DER waived irregularities, such waivers were awarded on a consistent basis without regard to the individual responders involved. Information which was not to be reviewed or evaluated was concealed by either covering the information with white paper, or stapling excess pages together. The DER waived several types of minor irregularities in the SOQs received for Solicitation #9111C. Some contractors submitted transmittal letters consisting of multiple pages rather than the one page letter specified in the RFSOQ. The transmittal letter received no evaluation points. The DER stapled multiple page letters together and considered only information contained on the first page. Therefore, information submitted at variance with the one- page limit was not reviewed or evaluated. The DER did not waive the failure to attach a transmittal letter. DER waived some irregularities related to subcontractor letters. Multiple page letters were stapled together and only page one information was reviewed. The DER decision to waive such defects was based upon the fact that such subcontractors were less familiar with the DER's submission requirements than were the prime contractors, that such letters were submitted by the subcontractors, that it was unfair to penalize the prime contractors for the minor irregularities of the subcontractor letters, and that the tasks to be performed by subcontractors were generally not critical to the successful completion of the prime contractor's assigned responsibilities. There was sufficient information to permit the DER to conclude that the subcontractor and prime contractor were committed to the project. There is no evidence that the identities of the subcontractors was considered in determining whether such defects should be waived. The DER waived other irregularities related to subcontractor letters, including the failure of a subcontractor to sign the letter. There was no specific requirement that the subcontractor sign the letter. However, the DER did not waive the failure to submit subcontractor letters. In instances where no letters were submitted, the DER awarded zero points and references to the subcontractor in the SOQ were deleted. The DER's actions related to subcontractor letters was reasonable and appropriate. Another irregularity waived by the DER was the failure to supply a minimum of ten separate and verifiable former clients other than the DER, with work performed for the DER set forth separately. The DER did not waive the failure to submit ten references, however, in some cases, not all ten references were acceptable. Attachment C does not state that the failure to submit ten acceptable references shall result in an award of zero points. In such instances, the DER reduced the number of points available to reflect the percentage of acceptable references provided. Therefore, information submitted at variance with the requirements, such as unacceptable references, was not evaluated. The DER acted reasonably and consistently with the provisions set forth in the RFSOQ. The DER requested that responders identify three "deliverables" required through an ongoing contract which had been effective within the past year. The DER did not consider deliverables related to contracts which had not been effective within the past year. The DER checked the references and awarded no points for unacceptable references. Several SOQ's did not appropriately identify key personnel as required. The DER did not consider information which was not reported as required by the RFSOQ. Where minor irregularities were waived, the waiver was applied consistently to all responders. The DER did not waive the failure of any responder to submit the three pages of Attachment F, as clearly required by the directions to the attachment. All parties which failed to submit all three pages of the attachment received a score of zero. There is no evidence that the DER, at any time, indicated that the directions set forth on Attachment F were optional. Approximately 20 of 45 of contractors submitting SOQs failed to include all three pages of the MBE utilization form, Attachment F to the Request for SOQs. Most failed to include page three of the attachment. The Petitioner, as well as Intervenors ERM-South, ITC and Westinghouse, were included in the 20 responders which failed to submit all three pages of Attachment F. As provided in the directions to Attachment F, failure to include all three pages of the attachment resulted in a score of zero points for MBE utilization. The DER could have made certain assumptions about the applicability of Attachment F to specific responders to the solicitation. However, given that the directions were clear and the penalty for not complying with the directions was equally clear, the DER did not waive the failure to submit all three pages of the attachment as part of the SOQs. The evidence is insufficient to establish that the DER's action was outside the agency's discretion or the requirements of law. Extensive testimony was offered in support of the assertion that the directions related to reporting of minority business utilization were confusing and ambiguous. However, the directions to Attachment F are clear and provide that, "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." There is no credible evidence to establish that such directions are confusing or ambiguous. The instructions to the RFSOQ consistently refer to Attachment F as being the only acceptable means of reporting minority business utilization information. Attachment F consists of three pages, with the "Directions" for completing and submitting the attachment set forth at page one, paragraph one. The Petitioner and Intervenors timely filed SOQ's and are substantially affected by the DER's determination that responders failing to submit all three pages of Attachment F were awarded zero points for minority business utilization. There is no evidence that the Petitioner or Intervenors are unable to perform the tasks identified in the RFSOQ.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order dismissing the petition of Metcalf & Eddy, Inc., (Case No. 91-4318B1D), as well as Cases No. 91- 43I6BID and 91-4317B1D, as set forth in the preliminary statement to this Recommended Order. DONE and RECOMMENDED this 26th day of September, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of September, 1991. APPENDIX CASE NO. 90-4316B1D, 90-4317B1D, and 90-4318B1D The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Metcalf & Eddy, Inc. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4. Rejected as to the implication that DER had no right to waive minor irregularities, contrary to the evidence. 12, 16, 19. Rejected, unnecessary. 20. Rejected. Such additional points appear to have been awarded to M&E in violation of Section 120.53(5)(c), Florida Statutes. 24-25. Rejected. Although the specific waivers are factually correct, the implication of the proposed finding is contrary to the weight of the evidence which establishes that the DER waives such irregularities, even though the instructions were clear, where the consequences for failing to comply with each specific instruction were unclear. There was no penalty set forth at the requirement that a document be signed or not exceed one page in length. The evidence establishes that the DER's actions were reasonable, logical, and within the authority of the agency. 29-32. Rejected. Contrary to the clear "Directions" of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." Responders were referred to Attachment F by the instructions cited in the proposed finding. 33-34, 36-38, Rejected, irrelevant. 39. Rejected, immaterial. The fact the DER could have examined the information submitted by M&E and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment. 40-41 Rejected. A logical reading of the checklist reference to Attachment F would be that, if the attachment were applicable, the attachment should be included. The clear and specific directions to Attachment F require the submission of the three page package to receive points. 42-43. Rejected, irrelevant. 44. Rejected. The failure to submit all three pages of Attachment F resulted in zero points, as provided in the directions to the attachment. The DER policy related to waiver of irregularities does not include the waiver of irregularities where the instructions are clear, the penalty for noncompliance is specific, and a responder fails to comply. The policy is reasonable and was applied consistently. 47. Rejected, contrary to the evidence. It appears that M&E's assertion that it would be included in the "short list" requires addition of points awarded by the DER in violation of Section 120.53(5)(c), Florida Statutes. 49-50. Rejected. While "instructions in a competitive bidding solicitation can be rendered ambiguous by their location," in this case, the instructions contained in the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. Attachment F's directions are not ambiguous or confusing. 51-53. Rejected, immaterial. This proposed finding is also contrary to the suggestion that the instructions were unclear, and indicates, not that the instructions were unclear, but that the M&E representative did not read the RFSOQ. It is not possible to find that a careful and intelligent reader of the directions to Attachment F could misunderstand the meaning of "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 54-61. Rejected, immaterial. The fact that a substantial number of responders failed to comply with the clear directions of Attachment F does not establish that the directions are confusing. The instructions to the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. The first paragraph of Attachment F is entitled and contains "Directions" which are clearly set forth. There is nothing at all ambiguous about the requirement that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 62-65. Rejected, irrelevant. There is no requirement that the DER waive all irregularities. Such irregularities may be waived at the Department's discretion. The DER chose not to waive irregularities where the requirements, and the penalties for failure to comply with said requirements, were clear. The DER applied this policy appropriately and consistently. There was no appearance of favoritism when the agency's policy is fairly and consistently applied. Rejected, irrelevant. The DER expects potential responders to have read the RFSOQ prior to the pre-bid meeting. The purpose of the meeting is to answer questions and provide clarifying information. The fact that no questions were asked regarding the requirement to submit all three pages of Attachment F indicates that participants either clearly understood the requirement or had not read the RFSOQ prior to the only mandatory opportunity to obtain clarification. In any event, the DER is not obligated to read every sentence of the RFSOQ aloud at a pre-bid meeting in order to make certain that responders who fail to read the document will submit responsive SOQs. Rejected, cumulative. 68-69. Rejected, immaterial, unnecessary. Respondent Department of Environmental Regulation The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, unnecessary. 6. Rejected, unnecessary. 20. Rejected, unnecessary. 23. Rejected as to the implication that Attachment C, Page 1, indicated the DER could not waive any irregularities. Cited language states that information submitted in variance with instructions would not be reviewed or evaluated. The evidence establishes that information submitted in variance with the instructions was not reviewed or evaluated, but was disregarded. 28. Rejected. It is not clear what is meant by this proposed finding. 37-39. Rejected, irrelevant, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. 41. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible. 42-43. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible, especially given M&E/PIECO's correct submission in response to similar requirements of RFSOQ #9003C. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible. The fact that the cited witness understood the directive and failed to comply due to oversight does not suggest that the directive was unclear. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. The reason for the cited witnesses failure to comply is unclear. Rejected, cumulative. 48. Rejected, unnecessary. 50-51. Rejected, immaterial. The issue in this case is not whether to goals of the minority business utilization program are met, but whether the DER acted inappropriately in reviewing SOQs submitted in response to the DER RFSOQ #9111C. 52-53. Rejected, unnecessary. 54-56. Rejected, unnecessary, cumulative. Intervenor ERM-South The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, cumulative. 14-19. Rejected, irrelevant, unnecessary. See preliminary statement. 21. Last sentence rejected, contrary to the greater weight of the evidence which establishes that the DER applied the language of the RFSOQ in a reasonable way, and that material information submitted in variance with the instructions was not reviewed or evaluated. 32-39, 41. Rejected, immaterial. The issue is whether the failure to follow the clear directions of Attachment F should result, as the directions provide, in zero points being awarded. The fact the DER could have examined the information submitted by ERM-South and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment. 40. Rejected, contrary to the evidence. There is no evidence that the omission of Attachment F, page three, is the sole basis for exclusion of a contractor from the short list. The short list was determined by ranking scores awarded. As stated in the directions to Attachment F, the result of noncompliance with said directions was an award of zero points for minority business utilization. 42-46. Rejected, cumulative, contrary to the greater weight of the evidence which establishes that the DER's action in reviewing the submitted Attachment F was reasonable, logical, and was applied in a consistent manner. As to whether the DER should have contacted other agencies to determine MBE status, the agency is under no obligation to do so. 47-49. Rejected, contrary to the clear directions of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." It is simply not possible to find, as suggested in the proposed finding, that such language cannot be relied upon to put contractors on notice that the failure to submit the three pages would result in zero points. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F. Rejected, irrelevant. 52-54. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F. 55-57. Rejected, irrelevant. 59-64. Rejected, irrelevant, unnecessary. See preliminary statement. Intervenor ITC The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Proposed findings of fact #7, #10 and #14-16 relate to evidence introduced at hearing by ITC to support it's position that it had been excluded from the "short list" due to DER's clerical error. As stated in the preliminary statement, ITC failed to timely file a notice of protest subsequent to the posting of the bid tabulation results challenging the DER's clerical error. Accordingly, this Recommended Order does not set forth Findings of Fact related to the clerical error due to ITC's failure to timely file a written notice of protest as required by Section 120.53(5)(b), Florida Statutes. 12. Rejected. The M&E formal written protest does not allege that the DER had improperly drawn the line for the "short list." 18-20. Rejected. Although likely correct, the proposed findings are irrelevant to the issue in this case. Rejected. Such additional points awarded to M&E by the DER appear to have been awarded contrary to Section 120.53(5)(c), Florida Statutes. Rejected, cumulative. ITC had an opportunity to timely file a written notice of protest subsequent to the bid tabulation posting, but failed to do so. An intervenor takes the case as it is found. Rejected, cumulative. 25. Rejected, contrary to the evidence. The evidence does not establish that the failure to complete all of Attachment F was based on it's inapplicability. Attachment F clearly states that inapplicable pages should be so marked and submitted with the response package. If such pages were not returned, as suggested, because there did not apply, then it is reasonable to conclude that the responder failed to read the clearly stated directions to Attachment F. 26-29. Rejected, irrelevant. The DER did nothing more than apply the clearly stated direction that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package" and imposed the clearly stated penalty, stating that "[f]ailure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 32-33. Rejected, contrary to the greater weight of evidence that the DER did not waive irregularities where the requirements, and the penalties for noncompliance with said requirements, were clearly stated. The DER did waive other irregularities where the instructions were ambiguous or confusing, or where there was not a specific penalty attached for the failure to follow a specific requirement. The evidence establishes that the DER actions were appropriate. 34. Rejected, immaterial. All three pages of Attachment F were clearly required to be submitted or a score of zero would be awarded. Intervenor E&E The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-3. Rejected, cumulative. 12. Rejected, contrary to the cited evidence. Although Attachment F was discussed in terms of reporting requirements, there were no questions asked related to the directions for completing or submitting the attachment. 21. Rejected, cumulative. Intervenors EBASCO, ABB, OHM, Cherokee and Westinghouse jointly filed a proposed recommended order. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 13, 16-17, 43-45, 47. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esq. General Counsel Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carolyn S. Raepple, Esq. Carlos Alvarez, Esq. 123 S. Calhoun Street Post Office Drawer 6526 Tallahassee, Florida 32314 E. Gary Early, Esq. Assistant General Counsel Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 M. Christopher Bryant, Esq. 2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32301 George N. Meros, Esq. 101 North Monroe Street Tallahassee, Florida 32301 Barrett G. Johnson, Esq. 315 South Calhoun Street, Suite 750 Tallahassee, Florida 32301 Rex D. Ware, Esq. 106 East College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32301 W. Robert Venzina, III, Esq. Mary M. Piccard, Esq. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32399-0589 Harry R. Detwiler, Jr., Esq. Post Office Drawer 810 Tallahassee, Florida 32302
The Issue The issue is whether petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, John E. Phillips, Jr., that he is entitled to an award of attorney's fees and costs because of an administrative action improvidently brought against him by respondent, Department of Banking and Finance (DBF). When the complaint was filed, Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc. DBF contends the claim is without merit because Phillips is not a small business party within the meaning of the law, there is substantial justification to support the agency's decision to file a complaint, and special circumstances are present which would make an award of fees and costs unjust. The action which underlies this claim involved an administrative complaint filed against Phillips on February 4, 1994, charging him with violating various provisions within Chapter 517, Florida Statutes. That complaint was assigned Case No. 94-1266. The complaint also denied an application by Phillips to register as an associated person with a new firm. In addition, the complaint named Bruce M. Walker as a co-respondent, and as to that registrant, the complaint was assigned Case No. 94-1358. Both cases were consolidated for hearing and, after an evidentiary hearing was conducted on June 27, 1994, a Recommended Order was issued on September 13, 1994, recommending that all charges against Phillips be dismissed and that his application for registration be approved. The Recommended Order was adopted by DBF without change, and Phillips is accordingly deemed to be a prevailing party in that action. Phillips has requested fees and costs in the amount of $15,000.00, the maximum allowed by law. Respondent does not contest the reasonableness of that amount. Prima Facie Requirements for an Award of Fees and Costs In order to show entitlement to an award of fees and costs, petitioner must demonstrate that he is a "prevailing small business party" within the meaning of the law. Since he has filed the petition on his own behalf, he must show he is a sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by the state agency, not more than 25 full-time employees or a net worth of not more than $2 million. At the time the administrative complaint was filed, Phillips was domiciled in Pensacola, Florida, and had a net worth of less than $2 million. According to an uncontroverted allegation in his petition, Phillips had no "employees relating to business that formed the basis for the Agency's charges." Petitioner was also a 50 percent shareholder in a subchapter S corporation known as Phillips, Walker & Associates, Inc. (PWA), a Pensacola firm engaged in the sale of insurance products. Although Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc., that firm was not the subject of the complaint nor is it otherwise relevant to this dispute. Petitioner's principal source of income was through the sale of insurance products sold through PWA although he occasionally sold a few securities during that same period of time. The administrative complaint was not filed against PWA, which held no licenses from the state, but rather was filed against the registration of Phillips as an individual. Although he was an officer, employee and shareholder of PWA, Phillips was not a sole proprietor of an unincorporated business, including a professional practice. Therefore, he does not qualify as a small business party. Was There Substantial Justification? The consumer complaint which eventually led to the filing of the charges in Case No. 94-1266 was made by Jane Hubbard, a Gulf Breeze realtor who had loaned a substantial amount of money ($50,000.00) to PWA in May 1988 and was never repaid. The loan was secured by a promissory note personally signed by Phillips and Walker, as the owners of the corporation. After PWA ceased doing business in May 1990, and both Phillips and Walker had filed for bankruptcy, Hubbard, or her attorney, contacted DBF in an effort to seek DBF's aid in collecting her money from Phillips and Walker. Since petitioner was registered with DBF as an associated person, and thus was subject to DBF's regulatory jurisdiction, Hubbard apparently assumed that Phillips may have violated the law in some respect, and the agency might be able to assist her in recovering all or a part of her money. A similar complaint filed with the Department of Insurance was not pursued by that agency. Hubbard's complaint was eventually referred to a DBF financial examiner, Robert R. Kynoch, who, among other things, interviewed Phillips, Walker, Hubbard, and three other persons who had made loans to Walker (but not Phillips). Although Kynoch did not place the persons interviewed under oath during the investigative stage, there was no requirement that he do so. Based on a representation by Hubbard that Phillips and Walker had failed to disclose to her all relevant information regarding PWA's financial status at the time the loan was made, Kynoch concluded that a reasonable basis existed to bring charges against the two if the loan was actually an investment, and thus subject to DBF's jurisdiction under Chapter 517, Florida Statutes. Accordingly, Kynoch prepared a written investigative report, received in evidence as respondent's exhibit 3, which recommended that the report "be further reviewed for appropriate disposition." The report was first reviewed by Michael D. Blaker, a DBF area financial manager, who approved the recommendation and forwarded it to his supervisor, Richard White. It was then reviewed and approved by a bureau chief, William Reilly, and finally by the division director, Don Saxon. After Saxon signed off on the report, it was sent to the general counsel's office for a legal determination as to whether the loan was an investment. Margaret S. Karniewicz, an assistant general counsel, concluded that it was, and recommended the issuance of an administrative complaint. After an evidentiary hearing was conducted, a determination was made that the loan constituted an investment. This determination in the Recommended and Final Orders was not contested by any party, including Phillips. There was, however, insufficient evidence to establish that misrepresentations were made by Phillips during the sale of the investment. For this reason, the charges against Phillips were dismissed and his application for registration with a new firm was approved. Because DBF had statements, which it assessed to be credible, from a complaining witness (Hubbard) that misrepresentations or material omissions were made by Phillips and Walker during the transaction, and DBF properly construed the transaction as an investment, it had a reasonable basis in fact and law to file the complaint. Since there was no showing that the agency's credibility assessment was unreasonable, DBF was substantially justified in bringing the charges in Case No. 94-1266. Special Circumstances There was no evidence presented by respondent to show that special circumstances exist that would make an award of attorney's fees and costs unjust.
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.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated business engaged in the practice of psychology. Petitioner's business does not employ more than twenty-five (25) full-time employees and has a net worth not exceeding $2,000,000.00. Petitioner's residence, business domicile and principal office are located in Georgia. Petitioner's residence, business domicile and principal office have been so located since 1982. In DOAH Case No. 89-6811, the Department of Professional Regulation, Board of Psychologists, filed an Administrative Complaint, dated July 20, 1989. An Amended Administrative Complaint was filed on December 8, 1989. The Administrative Complaints alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology. The case was voluntarily dismissed by the Department of Professional Regulation prior to the final hearing. The voluntary dismissal was adopted and incorporated into the Final Order entered by the Board in this matter. The Petition for Attorney's Fees and Costs filed pursuant to Rule 221- 6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, was timely, having been filed within sixty days (60) after the date on which the Petitioner had prevailed. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,106.50 and costs in the amount of $210.05 in DOAH Case No. 89-6811. However, Petitioner is not entitled to an award of attorney's fees and costs since the evidence clearly demonstrated that Petitioner's business or professional practice is neither domiciled in Florida nor has a principal office located in Florida. See, Section 57.111(1)(d)a., Florida Statutes.
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.
Findings Of Fact Petitioner, Raul Romaguera, is a small business party within the meaning of Subsection 57.111(3)(d), Florida Statutes (1985). When the underlying action herein occurred, he was licensed as a medical doctor by respondent, Department of Professional Regulation, Board of Medical Examiners (Board). On October 27, 1986, respondent filed an administrative complaint against Dr. Romaguera alleging that he had violated Subsection 458.331(1)(t), Florida Statutes (1985), by committing gross malpractice or failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The alleged violation related to Dr. Romaguera's inspection and diagnosis of a patient's tissue in December, 1980 while supervising a pathology department at a Lake Worth hospital. After an evidentiary hearing was conducted on March 24 and 25, 1987, a Recommended Order was entered by the undersigned on May 12, 1987, finding that the charge was unsubstantiated and recommending that the complaint be dismissed. The Recommended Order was adopted by the Board in its entirety by Final Order dated June 19, 1987. A timely petition for attorney's fees and costs was thereafter filed by petitioner on August 18, 1987. The parties have stipulated that, as a result of the Board's Final Order, Dr. Romaguera is a prevailing small business party within the meaning of Section 57.111, Florida Statutes (1985). They have also stipulated that, in order to defend against the agency's action, Dr. Romaguera incurred at least $15,000 in attorney's fees and costs. There is no evidence as to what information, oral or written, the probable cause panel had before it when voting to initiate this action. The agency does stipulate that, at some point in the probable cause phase of the proceeding, the panel requested more information on the matter before taking a vote. This is corroborated by an agency memorandum dated April 8, 1986 and introduced into evidence as petitioner's exhibit 1. At the final hearing on the merits of the administrative complaint, the agency presented a number of expert witnesses who concurred in the Board's assessment that Dr. Romaguera had failed to practice medicine with that level of care, skill and treatment required of a reasonably prudent similar practicing physician in the Lake Worth area. Doctor Romaguera also presented the testimony of an expert who disagreed with this assessment. Hence, the validity of the charges turned on the credibility and weight to be given the various experts by the undersigned.
