00-003025F Department Of Business And Professional Regulation, Electrical Contractors Licensing Board vs. John J. Borota Status: Closed DOAH Final Order on Friday, May 25, 2001.

Summary: Despite ultimate dismissal of case, agency demonstrated that its actions were substantially justified at the time it initiated the proceeding; Respondent not entitled to fees and costs under Section 57.111, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Petitioner , )

)

vs. ) Case No. 00-3025F

)

JOHN J. BOROTA, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on April 4, 2001, before Lawrence P. Stevenson, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings, in St. Petersburg, Florida.

APPEARANCES

For Petitioner : Robert A. Crabill, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32388-2202

For Respondent : G. Barry Wilkinson, Esquire

Lefter, Cushman & Wilkinson

696 First Avenue North, Suite 201

St. Petersburg, Florida 33701-3610

STATEMENT OF THE ISSUE

Whether the Respondent is entitled to an award of

attorney's fees and costs pursuant to Section 57.111, Florida

Statutes.

PRELIMINARY STATEMENT

On July 24, 2000, John J. Borota filed with the Division of

Administrative Hearings a Motion for Attorney's Fees and Costs.

The motion requests an award of attorney's fees and costs

incurred by Mr. Borota in litigating the case styled Department

of Business and Professional Regulation v. John J. Borota , DBPR

Case No. 97-17491. (The original style of the case was retained

in this proceeding.) The case was initially set for hearing on

October 10, 2000. Four continuances were granted, and the

hearing case was ultimately set for and held on April 4, 2001.

At the hearing, Mr. Borota testified in his own behalf.

Mr. Borota's Exhibits 1 through 10 were offered and received

into evidence. The Department presented the testimony of George

Ayrish, the program administrator for the Electrical Contractors

Licensing Board ("ECLB"). The Department's Exhibits 1 through 4

were offered and received into evidence.

A one-volume Transcript of the proceedings was filed with

the Division of Administrative Hearings on April 23, 2001. The

Department timely submitted proposed findings of fact and

conclusions of law on April 30, 2001. Mr. Borota moved for an

extension, which was granted without objection, and filed his

proposed findings of fact and conclusions of law on May 9, 2001.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency charged with

regulating the practice of professions pursuant to

Section 20.165, Florida Statutes, and Chapters 455 and 489,

Florida Statutes. The ECLB is charged with regulating the

practice of electrical contracting pursuant to Section 489.507,

Florida Statutes. Pursuant to Rule 61G6-4.006, Florida

Administrative Code, the ECLB has established a Probable Cause

Panel to determine whether probable cause exists to believe that

a violation of governing statutes has occurred.

2. Mr. Borota is, and was at all times material to this

matter, licensed as a Registered Electrical Specialty

hours of continuing education courses during each biennium

following issuance of the license.

4. Rule 61G6-9.003(2), Florida Administrative Code,

defines "course" as "any course, seminar or other program of

instruction which has been approved by the board for the purpose

of complying with the continuing education requirements for

electrical and alarm contractors." Rule 61G6-9.004(1), Florida

Administrative Code, requires that licensees provide proof of

completion of at least 14 classroom hours of continuing

education courses "approved by the board."

5. Rule 61G6-9.005(1)(a), Florida Administrative Code,

requires course sponsors to register with the ECLB prior to

submitting their courses to the board for approval. Rule 61G6-

9.005, Florida Administrative Code, provides that accredited

universities and colleges which offer courses in the contracting

areas specified in Part II of Chapter 489, Florida Statutes, are

deemed admitted as course sponsors.

6. Rule 61G6-9.006(1), Florida Administrative Code, allows

a registered course sponsor to submit to the ECLB an application

for approval of a continuing education course, and provides that

relevant courses offered by accredited universities and colleges

are deemed approved. The ECLB regularly publishes a list of

approved continuing education courses.

7. Rule 61G6-9.002, Florida Administrative Code, sets

forth criteria for continuing education. The following sets

forth the relevant portions of the rule as it read during the

period relevant to this case:

The following programs of continuing

education may be used to satisfy the

continuing education requirement provided

that the licensee complies with the terms

set forth herein:

(1 ) Courses for credit which are

business, technical or safety courses

relevant to the electrical contracting

industry and which require a passing grade

taken at an accredited college, university,

or community college. The licensee must

furnish an official transcript and a

notarized statement affirming classroom

hours attended and the receipt of a passing

grade.

(2 ) Noncredited courses conducted by an

accredited institution of higher learning,

official governmental agency, the military,

or recognized national or state trade or

civil organization provided the following

conditions are met:

(a ) the course must be business,

technical or safety course relevant to the

electrical contracting industry.

(b ) the course must follow a written

text, which must be submitted to the Board

for approval on request.

(c ) the instructor of the course must be

a professional educator, certified

electrical contractor or a similar authority

in the field.

The licensee must submit a notarized

statement affirming the following:

1. Number of classroom hours attended

2. Sponsor of the course

3. Location of the course

4. Date of the course

5. Name of the instructor and his

credentials

6. Benefit received from the course

8. George Ayrish, program administrator for the ECLB,

testified that Rule 61G6-9.002, Florida Administrative Code,

allows a licensee to obtain credit for courses that are not on

the approved list, provided the substantive criteria for

continuing education courses are met and the notarized statement

is filed.

9. The ECLB conducts random audits of its licensees every

two years. On January 27, 1997, the ECLB sent Mr. Borota a

written notice that his license was undergoing such an audit for

the period September 1, 1994, through August 31, 1996. The

notice requested that Mr. Borota provide, among other items not

relevant to this proceeding, certification that he had completed

the required continuing education hours.

10. Mr. Borota responded with certificates of attendance

at three separate technical electrical contracting courses

presented by equipment vendors: a "3M Hot Melt Fiber Optics

Connectors" course offered by 3M Telecom Systems Division on

June 25, 1995; a "Category 5" cabling installation course

offered by The Siemon Company on December 5, 1995; and an

"Installation Certification Program" offered by Ortronics Open

System Architecture Networking Products on June 19, 1995. None

of these courses were included in the ECLB’s list of approved

continuing education courses.

11. By letter dated March 18, 1997, the ECLB informed

Mr. Borota that the courses submitted as evidence of continuing

education must be "Board approved" and "completed within the

audit period."

12. Mr. Borota responded with a certificate indicating

that he had completed "product application training" and was

thus a certified installer for Superior Modular Products, Inc.

The certificate was dated July 31, 1995. This course was not

included in the ECLB’s list of approved continuing education

courses.

13. On August 18, 1997, Mr. Ayrish filed a Uniform

Complaint Form alleging that Mr. Borota did not provide proof of

continuing education as required by Rule 61G6-9.004(1), Florida

Administrative Code. The complaint was forwarded to Kathy

MacNeill, a senior consumer complaint analyst for the Department

of Business and Professional Regulation.

14. By letter dated October 9, 1997, Ms. MacNeill advised

Mr. Borota that a complaint had been filed against him. She

enclosed a copy of Mr. Ayrish’s complaint. The letter requested

that Mr. Borota submit a written response within 20 days.

15. By letter dated October 13, 1997, Mr. Borota responded

to Ms. MacNeill’s request. He wrote, in relevant part, that:

Regarding the continuing education for ET

0000218 I did send the certificates of

classes that I had taken during the audit

time in question. All of the classes that I

had taken covered communications cabling

which is what our company does. Most of the

classes that are held by the contractors

schools that are recommended for low voltage

systems licensing cover information on

security systems cabling and we do not do

that kind of work.

Please advise if I need to send any

additional information or what I will need

to do to close this case.

16. No further direct communication occurred between

Mr. Borota and Ms. MacNeill. Mr. Borota testified that he

attempted to phone the Department a few times after the exchange

of letters, but that he never spoke to anyone.

17. Ms. MacNeill prepared a written Investigative Report,

dated November 6, 1997, stating an alleged violation of failure

to provide proof of continuing education and forwarding the

matter to the Department’s legal counsel "for whatever action is

deemed appropriate."

18. The Complaint and the audit file were placed on the

docket for consideration by the Probable Cause Panel of the ECLB

at a telephonic conference on March 20, 1998. On the same date,

a Memorandum Of Finding was signed by the chairperson of the

Probable Cause Panel, indicating probable cause was found.

19. The Department issued an Administrative Complaint on

March 23, 1998, alleging that Mr. Borota failed to submit proof

in response to the audit of having complied with the continuing

education requirements of Subsection 489.517(3), Florida

Statutes, and the rules promulgated thereunder. Mr. Borota was

served with the Administrative Complaint on March 30, 1998.

20. On April 21, 1998, Mr. Borota timely filed his written

Election Of Rights disputing the material facts set forth in the

Complaint and demanding an evidentiary hearing pursuant to

Subsection 120.57(1), Florida Statutes.

21. On the same date, Mr. Borota also submitted an

affidavit, substantially complying with Rule 61G6-9.002(2),

Florida Administrative Code, attesting that he had attended 30

additional hours of continuing education courses during the

audit period. These courses were professional seminars provided

at the annual winter meeting of Building Industry Consulting

Service International, Inc. (“BICSI”), a non-profit

telecommunications technical association. The materials for the

BICSI conferences show that the University of South Florida was

a co-sponsor of the event. The BICSI seminars were not on the

ECLB’s list of approved continuing education courses.

22. On August 6, 1998, counsel for the Department filed a

Motion For Final Order, arguing that there were no disputed

issues of material fact in the case because none of the courses

submitted by Mr. Borota were on the ECLB’s approved list of

continuing education courses.

23. The ECLB denied the Department’s motion and agreed to

refer the Administrative Complaint to the Division of

Administrative Hearings ("DOAH") for the conduct of a formal

administrative hearing. The case was never forwarded to DOAH.

The record does not disclose why the case remained at the ECLB

for nearly two years following the ECLB’s denial of the Motion

for Final Order.

24. The Administrative Complaint was again considered by

the Probable Cause Panel of the ECLB on May 23, 2000. On the

same date, a Memorandum Of Finding was signed by the chairperson

of the Probable Cause Panel that determined no probable cause

was found and that the Administrative Complaint should be

dismissed.

25. Both meetings of the Probable Cause Panel were tape

recorded. The tapes were of such poor quality that a certified

transcript of the meetings could not be prepared by either an

independent court reporter or the Department. Redacted tape

copies and an uncertified transcript of the meetings were

admitted into evidence by agreement of the parties.

26. The transcript is sufficient to show that the

March 20, 1998, Probable Cause Panel treated Mr. Borota’s case

in a pro forma fashion, without discussion of the particulars of

the investigation, prior to making a finding of probable cause

to proceed against Mr. Borota.

27. At the hearing in the instant case, the Department

admitted that Mr. Borota was the prevailing party in the

disciplinary proceeding because the Administrative Complaint was

dismissed upon a finding of "no probable cause" at the May 23,

2000, Probable Cause Panel meeting.

28. Mr. Borota testified that he was the sole owner and

qualifying licensee of the corporation through which he

practiced as a licensed electrical contractor, that his net

worth was less than $2 million, and that he and the corporation

employed fewer than 25 workers. The Department offered no

evidence to dispute Mr. Borota’s testimony on these points.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.569 and

Subsection 120.57(1), Florida Statutes.

30. Section 57.111, Florida Statutes (2000), the Florida

Equal Access to Justice Act, provides in pertinent part as

follows:

(4)(a ) Unless otherwise provided by law,

an award of attorney's fees and costs shall

be made to a prevailing small business party

in any adjudicatory proceeding or

administrative proceeding pursuant to

chapter 120 initiated by a state agency,

unless the actions of the agency were

substantially justified or special

circumstances exist which would make the

award unjust.

31. In proceedings to establish entitlement to an award of

attorney's fees and costs pursuant to Section 57.111, Florida

Statutes, the initial burden of proof is on the party requesting

the award to establish by a preponderance of the evidence that

it prevailed in the underlying disciplinary action and that it

was a small business party at the time the disciplinary action

was initiated. Once the party requesting the award has met this

burden, the burden of proof shifts to the agency to establish

that it was substantially justified in initiating the

disciplinary action. See Helmy v. Department of Business and

Professional Regulation , 707 So. 2d 366, 368 (Fla. 1st DCA

1998); Department of Professional Regulation, Division of Real

Estate v. Toledo Realty, Inc. and Ramiro Alfert , 549 So. 2d 715,

717 (Fla. 1st DCA 1989).

32. The Department conceded at the hearing that Mr. Borota

prevailed in the underlying proceeding because the ECLB

dismissed the Administrative Complaint. Subsection

57.111(3)(c )3, Florida Statutes.

33. Mr. Borota’s undisputed testimony established that he

was a "small business party" as contemplated by

Subsection 57.111(3)(d), Florida Statutes, which provides in

relevant part as follows:

(d ) The term "small business party"

means:

1.a. 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 that

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; or

b. A partnership or corporation,

including a professional practice, which has

its principal office in this state and 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. . . .

34. Mr. Borota is the sole owner of a corporation, not of

an incorporated business. Further, this proceeding was brought

against Mr. Borota in his individual capacity; his corporation

is not a party. Thus, Mr. Borota does not meet the literal

definition of a “small business party” as set forth above.

However, the court in Albert v. Department of Health, Board of

Dentistry , 763 So. 2d 1130 (Fla. 4th DCA 1999), recognized that

a literal application of the statute would lead to an absurd

result that the Legislature could not have intended:

It is clear from the language of subsections

(a) and (b), which both contain the term

"including a professional practice," that

the legislature intended for the statute to

apply to professionals, regardless of

whether they practice as sole

proprietorships or professional service

corporations. What the legislature

overlooked is that the license to operate,

which is generally the subject of the

administrative proceedings, is issued to the

individual, not the professional service

corporation. The Department’s

interpretation would mean that professionals

who have incorporated are not covered by

subsection (b), and would render subsection

(b) meaningless.

763 So. 2d at 1131-32.

35. The sole disputed issue for decision in this case is

whether the Department’s actions were "substantially justified."

Subsection 57.111(3)(e), Florida Statutes, provides that a

proceeding is "substantially justified" if it had a "reasonable

basis in law and fact at the time it was initiated by a state

agency ." (Emphasis added.)

36. The evidence established that the Department had a

reasonable basis in law and fact to issue the Administrative

Complaint against Mr. Borota. None of the continuing education

courses submitted by Mr. Borota had been approved by the ECLB

prior to his attendance. As set forth above, Rule 61G6-

9.004(1), Florida Administrative Code, provides that a licensee

must provide proof of completion of at least 14 classroom hours

of continuing education courses "approved by the board." Rule

61G6-9.003(2), Florida Administrative Code, defines the term

"course" in terms of programs of instruction "approved by the

board."

37. Mr. Borota argues that the pro forma manner in which

the March 20, 1998, Probable Cause Panel treated the case brings

it within the ambit of Helmy v. Department of Business and

Professional Regulation , 707 So. 2d 366 (Fla. 1st DCA 1998). In

Helmy , the issue before the court was whether a probable cause

panel sufficiently considered allegations against a veterinarian

prior to finding probable cause that he had practiced veterinary

medicine with a suspended license in his role as a veterinary

aide. The court noted that the transcript of the probable cause

meeting

contains no discussion as to whether the

applicable law was violated, no recognition

or discussion of the fact that there was a

licensed veterinarian on the premises, no

discussion of the fact that Dr. Helmy was

working under the immediate supervision of a

licensed veterinarian, and no discussion of

the exceptions under the Veterinary Medical

Practice Act, Chapter 474, Florida Statutes,

that allow veterinary aides to do numerous

activities, some of which require immediate

supervision, and some of which do not

require any supervision.

707 So. 2d at 369. The court concluded that the proceedings of

the probable cause panel suggested that its members were not

even aware of the definition of "supervision" in the applicable

statute, and thus its actions were not "substantially

justified." Id. at 369-70.

38. Unlike Helmy , the instant case did not involve the

application of a statutory definition, itself requiring some

degree of interpretation, to a complex set of facts. On

March 20, 1998, the Probable Cause Panel had before it a simple

case of a licensee who had submitted a set of continuing

education courses that were not on the ECLB's list of approved

courses, and of a rule that required licensees to demonstrate

that they had attended courses "approved by the board." A

reading of the audit file would establish these matters, without

necessity for extended discussion on the record. Mr. Borota's

contention that this case is analogous to Helmy is rejected.

39. The case changed on April 21, 1998, when Mr. Borota

submitted an affidavit stating that he had attended 30 hours of

seminars sponsored by BICSI, a recognized national trade

organization, and the University of South Florida, during the

audit period. This affidavit represented at least an attempt to

comply with Rule 61G6-9.002(2), Florida Administrative Code,

which allows licensees to obtain credit for courses not on the

ECLB's approved list.

40. The record indicates that the ECLB recognized this

change in the status of the case. It denied counsel's motion

for final order against Mr. Borota. It ultimately revisited the

issue of probable cause and dismissed the case.

41. The record does not explain why the ECLB took nearly

two years to dismiss the case after Mr. Borota submitted his

affidavit. However, for purposes of Section 57.111, Florida

Statutes, this question is not relevant. As noted above, the

substantial justification inquiry is confined to the time a

proceeding was initiated by a state agency. Agency for Health

Care Administration v. Gonzalez , 657 So. 2d 56 (Fla. 1st DCA

1995)(proper inquiry is whether evidence before probable cause

panel was sufficient for institution of disciplinary action;

error to determine "substantial justification" in light of

subsequent dismissal after more evidence was presented).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Respondent's Motion for Attorneys' Fees and Costs is

denied.

DONE AND ORDERED this 25th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of May, 2001.

COPIES FURNISHED:

Robert A. Crabill, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32388-2202

G. Barry Wilkinson, Esquire

Lefter, Cushman & Wilkinson

696 First Avenue North, Suite 201

St. Petersburg, Florida 33701-3610

Anthony B. Spivey, Executive Director

Electrical Contractors Licensing Board

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with 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.