01-001331F James L. Brown vs. Department Of Business And Professional Regulation, Building Code Administrators And Inspectors Status: Closed DOAH Final Order on Thursday, May 24, 2001.

Summary: Division does not have jurisdiction to award attorney`s fees and costs pursuant to Section 468.619(7), Florida Statutes, absent court judgment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. BROWN , )

)

Petitioner , )

)

vs. ) Case No. 01-1331F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

BUILDING CODE ADMINISTRATORS )

AND INSPECTORS , )

)

Respondent. )

_________________________________)

FINAL ORDER OF DISMISSAL

Pursuant to notice, a telephone conference hearing was

conducted on May 21, 2001. All parties participated by

telephone and presented argument to J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Michael A. Rodriguez, Esquire

Grazi & Gianino

217 East Ocean Boulevard

Post Office Drawer 2486

Stuart, Florida 34995-2486

For Respondent : Robert A. Crabill, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388-2202

STATEMENT OF THE ISSUE

Whether the Division of Administrative Hearings has

jurisdiction to enter an award of costs and attorney's fees

pursuant to Subsection 468.619(7), Florida Statutes, as set

forth in the Petitioner's motion to award same.

PRELIMINARY STATEMENT

On April 10, 2001, the Petitioner, James L. Brown, filed

a Motion to Award Costs and Attorney's Fees with the Division

of Administrative Hearings (DOAH). An Initial Order was

entered and the matter was assigned to an Administrative Law

Judge. On April 30, 2001, the Respond ent, Department of

Business and Professional Regulation, Building Code

Administrators and Inspectors (Department ), filed a Response

to Initial Order that challenged the statutory basis for the

claim, and disputed the jurisdiction of DOAH to determine the

claim. As the issue of DOAH's jurisdiction in the matter is

central to whether an evidentiary hearing is required, the

cause was scheduled for a telephone conference call to allow

the parties to address that issue.

At the noticed time, both parties were afforded an

opportunity to present argument. This order is entered to

memorialize the conclusions of law reached in this cause. The

findings of fact upon which all conclusions are reached are

not disputed.

FINDINGS OF FACT

1. The Petitioner was the subject of an administrative

action wherein the Department sought to discipline the

Petitioner for alleged violations of Chapter 468, Florida

Statutes. The Administrative Complaint in the underlying

administrative action was filed on November 2, 1998.

Procedurally, the probable cause panel would have met to

approve the proposed complaint prior to that date. Since the

claim was disputed by the Petitioner, the disciplinary case

was forwarded to DOAH for formal proceedings on December 23,

1998.

2. That disciplinary proceeding, DOAH Case No. 98-5629,

was concluded with the entry of a Final Order that adopted the

Recommended Order and dismissed the Administrative Complaint.

Thus no disciplinary penalty was imposed against the

Petitioner.

3. The Petitioner's Motion to Award Costs and Attorney's

Fees predicated the claim on Section 468.619(7), Florida

Statutes. The claim represented that the underlying

administrative action "resulted in a judgment for the

enforcement official."

4. The sole basis for the Petitioner's claim in this

case is Section 468.619(7), Florida Statutes. Such statute

took effect on July 1, 2000.

5. The formal hearing in the underlying administrative

case was conducted on August 8, 2000. The Recommended Order

was entered on October 23, 2000.

6. The Final Order was entered by the Building Code

Administrators and Inspectors Board on December 27, 2000.

7. The Petitioner maintains that this case must be

distinguished from its companion case, DOAH Case No. 99-4892,

because in this instance the underlying administrative case

was placed in abeyance to allow a Stipulated Settlement

Agreement to be presented to the Building Code Administrators

and Inspectors Board (Board). Only when the Board rejected

the agreement did the matter eventually proceed to an

evidentiary hearing. Presumably, had the matter been amicably

resolved, the Petitioner would not have incurred the costs and

fees now claimed.

CONCLUSIONS OF LAW

8. Section 468.619(7), Florida Statutes, provides:

(7 ) If any action taken against the

enforcement official by the department or

the board is found to be without merit by a

court of competent jurisdiction , or if

judgment in such an action is awarded to

the enforcement official, the department or

the board, or the assignee of the

department or board, shall reimburse the

enforcement official or his or her

employer, as appropriate, for reasonable

legal costs and reasonable attorney's fees

incurred. The amount awarded shall not

exceed the limit provided in s. 120.595.

(Emphasis added.)

9. The Respondent's opposition to the Petitioner's

request for attorneys fees and costs is well founded. Section

468.619(7), Florida Statutes, only applies if the action taken

by the department or board is found to be without merit by a

court. The Division of Administrative Hearings is not a

court. It must be presumed that the legislature in enacting

the section contemplated the difference between the courts (an

instrument of the judicial branch) and DOAH (a quasi-judicial

division of the executive branch). Indeed, courts enter

judgments (as indicated in the cited section), and DOAH enters

recommended or final orders (depending on the nature of its

jurisdiction). The Division of Administrative Hearings does

not enter judgments as that term is used by the judicial

branch. Accordingly, the Division of Administrative Hearings

does not have jurisdiction over the subject matter of these

proceedings.

10. Secondly, statutes are not retroactively applied

unless the legislature contemplates such applicability and

makes provision for same in the language of the statute. In

this instance, it has not. Since all acts that initiated and

placed the underlying disciplinary case at issue occurred

prior to the effective date of the statute, it cannot be

concluded the statute should be retroactively enforced.

Accordingly, the statute is inapplicable to this cause.

11. The Petitioner argues that if the statute is not

applied as claimed, it is rendered meaningless. Since courts

should avoid readings of a statute that render it meaningless,

Petitioner argues the legislature must have envisioned the

process whereby the proposed award sought by this successful

licensee would be approved. To support this conclusion, the

Petitioner cites Golf Channel v. Jenkins , 752 So. 2d 561 (Fla.

2000). Such argument is rejected.

12. In rejecting Petitioner's argument, the unambiguous

language of the statute must be reviewed. The legislature did

not state that the Department's failure to meet its burden of

proof in an administrative action would automatically result

in fees and costs for the successful licensee. To the

contrary, an award is appropriate only where the action is

found to be without merit by a court. Had a recommended order

found the administrative action to be without merit, had the

Board rejected such conclusion, and had the licensee appealed

the matter to a court that entered a judgment concurring with

the recommended order's finding, then, in that circumstance,

the successful licensee may be awarded fees and costs. In

this case a court has not entered judgment making any finding

as to the merit of the underlying administrative complaint.

Therefore, under the plain unambiguous language of the

statute, an award of fees and costs may not be entered. Nor

has it been determined that the Respondent's case was without

merit merely because it failed to meet its burden of proof.

ORDER

Based on the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Motion to Award Costs and

Attorney's Fees is denied and this case is hereby dismissed,

as the Division of Administrative Hearings does not have

jurisdiction over the subject matter of this request.

DONE AND ORDERED this 24th day of May, 2001, in

Tallahassee, Leon County, Florida.

__________________________ _________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing (850) 921- 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May, 2001.

COPIES FURNISHED:

Michael A. Rodriguez, Esquire

Grazi & Gianino

217 East Ocean Boulevard

Post Office Drawer 2486

Stuart, Florida 34995-2486

Robert A. Crabill, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388-2202

Anthony B. Spivey, Executive Director

Building Code Administrators and Inspectors

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

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.