00-002795F Trammel Fowler vs. Department Of Health Status: Closed DOAH Final Order on Friday, December 15, 2000.

Summary: Respondent agency demonstrated reasonable basis in law and fact for instituting underlying prosecution, even though agency only prevailed on one charge. "Substantial justification" proven; no fees and costs under Section 57.111, Florida Statutes, are due

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRAMMEL FOWLER, )

)

Petitioner, )

)

vs. ) Case No. 00-2795F

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

FINAL ORDER

This cause comes before the undersigned on a Motion for

Summary Final Order, pursuant to Section 120.57(1)(h), Florida

Statutes, filed by the Florida Department of Health, Okaloosa

County Health Department (Department). This matter concerns a

petition for assessment of attorneys' fees and costs pursuant to

Section 57.111, Florida Statutes, filed July 7, 2000. The

underlying cause in this matter was heard on August 26, 1999, and

a Recommended Order entered on January 19, 2000. The Department

entered its Final Order adopting the Recommended Order on June 2,

2000. In the Recommended Order and the Final Order it was

concluded that the Petitioner, Trammel Fowler, had installed a

septic tank system without a permit but because of the

circumstances found in the Recommended Order the penalty should

be limited to a "letter of warning." The Department initially

prosecuted charges against Fowler on the basis that he had

installed a septic system without a permit; installed a septic

system without adequate drainfield; and disconnected an existing,

permitted septic system without a permit, seeking to impose

administrative fines. The undersigned Judge found that Fowler

had installed a septic tank system without a permit but had not

been responsible for disconnecting the older system, which was

done by a different party, or for the inadequate drainfield. In

the underlying Recommended Order the Judge found the following

pertinent facts:

(1) The Department of Health was aware of

the repairs made by Petitioner Fowler and,

through Mr. Brown, inspected them and

approved it.

(2) The alleged un-permitted repair work was

actually made with knowledge of the

Department through Mr. Brown, and his

approval of the repair work.

(3) The Petitioner Mr. Fowler had no part in

the unreported and unapproved disconnection

of the original septic system which was done

by an uninvolved plumber.

(4) No monetary harm was caused to Fowler's

customer.

(5) The Department failed to conduct an

investigation into the original allegations

concerning the abandonment or disconnection

of the system prior to filing the charges

against Mr. Fowler.

(6) The initial citation for violation and

the amended citation charged Fowler with

three separate violations as well as charging

him with causing the septic system to be

improperly disconnected and abandoned.

Pursuant to Section 57.111(3)(c), Florida Statutes, a small

business party is a "prevailing small business party" when: (1) a

final judgment or order has been entered in favor of the small

business party and such judgment or order has not been reversed

on appeal or the time for seeking judicial review of the judgment

or order has expired; or (2) a settlement has been obtained by

the small business party which is favorable to the small business

party on the majority of issues which such party raised during

the course of the proceeding; or (3) a state agency has sought a

voluntary dismissal of its complaint.

The two issues in this proceeding concern whether Fowler is

a "prevailing small business party" and whether or not the

Respondent Agency was substantially justified in initiating

proceedings against Fowler.

There is no dispute that Fowler is a small business party.

The issue is whether he is a prevailing small business party. On

the majority of issues in the underlying case, the Administrative

Law Judge, and the Department by its Final Order, found that the

Petitioner, Mr. Fowler, was not guilty of the charges. It was

only on the charge concerning installing the septic tank and

drainfield without a permit that he was found to have committed a

violation. The penalty was a de minimus "letter of warning"

because of the installation of the tank and drainfield with what

the Judge found, in his Recommended Order, to be the inspection

and approval of it by Mr. Brown of the Department. Thus, the

Petitioner prevailed on most of the action against him, but not

on one of the charges. It is thus a fairly close question

concerning whether he might be found to be a prevailing party.

However, assuming arguendo that he is a prevailing party within

the bounds of the Department's final order, the claim for

attorneys' fees must fail because the Agency has established

substantial justification for its underlying action.

Pursuant to the above statute, the "Florida Equal Access to

Justice Act," a government agency will not be held liable for

attorney's fees even if it did not prevail in the underlying

action provided the agency's action was substantially justified

by having a "reasonable basis in law and fact" when the action

was initiated. This proceeding was initiated after a homeowner

complaint concerning a septic tank failure, which was

subsequently investigated by the Department. That investigation

revealed the existence of an inadequately sized drainfield, a

septic tank and connecting sewer line which was not permitted on

the initial permit for the original system, and disconnection of

the previously permitted drainfield and septic tank without a

permit. Based upon this discovery and the representation by the

original homeowner the Petitioner had installed the un-permitted

system, and after consultation with investigating personnel, the

Department issued a citation. It charged the subject violations

of Rule 64E-6.022(1)(b)2, Florida Administrative Code, concerning

installation without a permit; and, Rule 64E-6.022(1)(p), Florida

Administrative Code, concerning repair of a system in violation

of standards, "inadequate drainfield," and Rule 64E-6.022(1)(b),

Florida Administrative Code, concerning modification of an

existing system without a permit (disconnection of original

system), all related to installation of the second tank and

drainfield.

It is true that the undersigned Judge found that Mr. Brown,

a Department Inspector, had inspected the system and approved it

for the installer, the Petitioner. Thus it was found that

through Mr. Brown at least derivatively, the Agency had knowledge

of and approved the installation of the second system for

purposes of the question of guilt and penalty concerning certain

of the charges in the earlier underlying proceeding. However,

the findings of fact in the underlying proceeding and the

evidence upon which those facts were based, as well as the

Amended Affidavit of Mr. Sims in this fee proceeding, when

considered in their totality, show that, although the

investigation may have been flawed (as evidenced by the fact

found by the Judge in the Recommended Order that the Department

failed to investigate the disconnection and abandonment itself)

that overall a good faith investigation was conducted. It was

based upon a reasonable interpretation of law and the facts as it

"then" knew them at the time it was engaged in by the Department.

Although Mr. Brown was found, after consideration of all the

testimony and evidence and weighing of witness credibility, to

have inspected and approved the system for which no permit was

ever obtained, the Amended Affidavit of Mr. Sims, supplied in

support of the Motion for Summary Final Order in the instant

proceeding shows that in April of 1998, Mr. Sims had a

conversation with Mr. Brown in which Mr. Brown alluded to him

that he had not inspected and approved the system. Thus, even if

what Mr. Brown told Mr. Sims in April of 1998, before the

original underlying proceeding was filed, was untrue, Mr. Sims

and the other Department personnel who investigated and made

determinations regarding the charges filed were reasonably

justified, based in part upon Brown's representations to Mr.

Sims, in bringing the underlying action.

While certain of the information conveyed in Mr. Sims

Affidavit and Amended Affidavit may be "hearsay within hearsay,"

as raised in the Petitioner's Motion to Strike, certain parts of

the Affidavit support the fact that a reasonable, good faith

investigation was done, even if partially flawed in the above-

found respect. More pointedly, the statement of Mr. Brown to Mr.

Sims reported in the Amended Affidavit in order to have its

effect in supporting substantial justification, together with the

other information the Department had in its possession supporting

filing of the action, need not be the subject of an exception to

the hearsay rule. It need not be offered for the truth of Mr.

Brown's statement but rather the fact that he made it as a

"verbal act" and that the Department relied on it as part of its

justification for the filing of the action against Mr. Fowler,

which it did.

In summary, while the Department might have made a more

thorough and accurate investigation, the investigation it did

make showed that it had a reasonable basis in law and fact to

initiate the action against Mr. Fowler at the time it was

initiated. Thus the Agency has met its burden of showing

substantial justification for its action. Accordingly, the

Motion for Summary Final Order is hereby granted and the Petition

for Attorneys' Fees is dismissed.

DONE AND ORDERED this 15th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Cl erk of the

Division of Administrative Hearings

this 15th day of December, 2000.

COPIES FURNISHED:

Matthew D. Bordelon, Esquire

Galloway, Johnson, Tompkins, Burr

& Smith, P.L.C.

55 Baybridge Drive

Gulf Breeze, Florida 32561

Rodney M. Johnson, Esquire

Department of Health

1295 West Fairfield Drive

Pensacola, Florida 32501

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a notice of appeal with the agency clerk of the Division of

Administrative Hearings and a second coy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or in the district court of appeal in the appellate

district where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.