02-002235F Seminole Music, Inc. vs. City Of St. Petersburg Status: Closed DOAH Final Order on Wednesday, August 28, 2002.

Summary: Division lacked jurisdiction to determine an award of attorney`s fees against City of St. Petersburg, pursuant to Section 57.111, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE MUSIC, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 2235F

)

CITY OF ST. PETERSBURG, )

)

Respondent. )

________________________________)

FINAL ORDER OF DISMISSAL

On June 4, 2002, Petitioner, Seminole Music, Inc.

(Semino le Music) filed a Petition for Attorney's Fees and

Costs (Petition) with the Division of Administrative Hearings,

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

Florida Statutes, against the City of St. Petersburg (City).

On June 26, 2002, the City filed Respondent's Answer and

Defenses, requesting the dismissal of the Petition. On

July 18, 2002, an Amended Order to Show Cause was issued,

requiring Seminole Music to show cause why the Petition should

not be dismissed. Seminole Music fil ed a response on July 30,

2002. A telephonic conference was held with the parties on

August 19, 2002, and the Petitioner was given leave to file a

supplemental response to the Amended Order to Show Cause on or

before August 23, 2002. Petitioner timely fi led a

supplemental response.

The underlying cause for which Seminole Music seeks

attorney's fees and costs resulted from a charge of

discrimination filed with the City's Community Affairs

Department, Division of Human Relations, by Rebecca K. Field

against Seminole Music. The complaint was filed pursuant to

Chapter 70 of the Pinellas County Code. Pursuant to an

agreement with the City, the complaint was handled through the

Human Relations Division of the City. The Human Relations

Officer found there to b e reasonable cause to believe that a

violation of Pinellas County Code, Chapter 70 had occurred.

On March 31, 2000, the City's Division of Human Relations

filed a complaint on behalf of Ms. Field against Seminole

Music alleging that Ms. Field was terminate d from her

employment due to her sex and seeking lost wages, benefits,

reasonable attorney's fees, and provable expenses. The matter

was heard by a Hearing Examiner. The matter was not referred

to the Division of Administrative Hearings. The Hearing

Exa miner issued a Recommended Order of Adjudication on

January 23, 2002, recommending that a final order be entered

dismissing the claim of discrimination.

On April 5, 2002, the Human Relations Review Board issued

a Final Order of Dismissal. Seminole Music filed its Petition

for Attorney's Fees and Costs on the basis of the complaint

filed by the City's Human Relations Officer and the Final

Order of Dismissal, alleging that it was a prevailing small

business party pursuant to Section 57.111, Florida Statutes .

Section 57.111(4)(a), Florida Statutes, provides:

Unless otherwise provided by law, an

award of attorney's fees and costs shall be

made to the prevailing small business party

in any adjudicatory proceeding or

administrative proceeding pursuant to

chapt er 120 initiated by a state agency,

unless the actions of the agency were in

substantially justified or special

circumstances exist which would make the

award unjust.

Subsection 57.111(3)(f), Florida Statutes, states that

the term "state agency" has the m eaning set forth in Section

120.52(1), Florida Statutes, which provides:

(1) "Agency" means

(a) The Governor in his exercise of all

executive powers other than those derived

from the constitution.

(b) Each:

1. State officer and state departme nt,

and each department unit described in s.

20.04.

2. Authority, including a regional

water supply authority.

3. Board.

4. Commission, including the Commission

on Ethics and the Fish and Wildlife

Conservation Commission when acting

pursuant to statutory authority derived

from the Legislature.

5. Regional planning agency.

6. Multicounty special district with a

majority of the governing board comprised

of nonelected persons.

7. Educational units.

8. Entity described in chapters 16 3,

373, 380, and 582 and s. 186.504.

(c) Each other unit of government in the

state including counties and

municipalities, to the extent that they are

expressly made subject to this act by

general or special law or existing judicial

decisions.

This def inition does not include any legal

entity or agency created in whole or in

part pursuant to chapter 361, part II, an

expressway authority pursuant to chapter

348, any legal or administrative entity

created by an interlocal agreement pursuant

to s.163.01(7) , unless any party to such an

agreement is otherwise an agency as defined

in this subsection, or any multicounty

special district with a majority of its

governing board comprised of elected

persons; however this definition shall

include regional water supp ly authority.

The definition of "agency" in Section 120.52(1), Florida

Statutes, does not include municipalities unless they are made

subject to the Administrative Procedure Act by general or

special law or existing judicial decisions. There are no

gener al or special laws that make the City subject to the

Administrative Procedure Act. See City of Deerfield Beach ,

419 So. 2d 624 (Fla. 1982); Eckert v. Board of Commissioners

of North Broward Hospital District, 720 So. 2d 1151 (Fla. 4th

DCA 1998); Greene v. Carson , 515 So. 2d 1007 (Fla. 1st DCA

1987); Cherokee Crushed Stone, Inc. , 421 So. 2d 684 (Fla. 4th

DCA 1982).

Petitioner alleges in its Petition that the City is a

state agency as defined in Chapter 163, Florida Statutes. The

definition of agency in S ection 120.52(1), Florida Statutes,

includes an entity described in Chapter 163, Florida Statutes.

Entities described in Chapter 163, Florida Statutes, include

entities such as community redevelopment agencies, regional

transportation authorities, the Mia mi River Commission, and

councils of local public officials. The City of St.

Petersburg, Department of Community Affairs, Division of Human

Relations is not an entity described in Chapter 163, Florida

Statutes. Although the City and Pinellas County have entered

into an agreement by which the City will process human

relations complaints arising from a violation of the Pinellas

County Code, the existence of the agreement does not mean that

the City is considered a state agency for purposes of Section

57.111 , Florida Statutes. Even if the Division of Human

Relations were set up pursuant to the agreement to administer

the agreement, it should be noted that any administrative or

legal entity created pursuant to Section 163.01(7), Florida

Statutes, is not inclu ded in the definition of "agency."

It being determined that the City of St. Petersburg is

not a state agency for purposes of Section 57.111, Florida

Statutes, the Division of Administrative Hearings does not

have jurisdiction to consider the Petition.

Add itionally, even if the City were considered to be a

state agency for the purposes of Section 57.111, Florida

Statutes, the proceeding was not an administrative proceeding

pursuant to Chapter 120, Florida Statutes. Section

57.111(4)(a), Florida Statutes, p rovides the award of

attorney's fees and costs shall be made to the prevailing

small business party in a Chapter 120, Florida Statutes,

administrative proceeding.

The administrative hearing was not conducted pursuant to

Chapter 120, Florida Statutes, but arose from an alleged

violation of Chapter 70 of the Pinellas County Code, and was

processed using the Pinellas County Code and Chapter 15 of the

St. Petersburg Code. Thus, the Division of Administrative

Hearings does not have jurisdiction to determine a ttorney's

fees and costs pursuant to Section 57.111, Florida Statutes,

for proceedings which were not pursuant to Chapter 120,

Florida Statutes.

Based on the foregoing, it is

ORDERED that the Petition for Attorney's Fees and Costs

is DISMISSED for lack of jurisdiction.

DONE AND ORDERED this 28th day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judg e

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(904) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (904) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of August, 2002.

COPIES FURNISHED:

Clifford J. Hunt, Esquire

2401 West Bay Drive, Suite 414

Largo, Florida 33770 - 1941

Jeannine S. Williams, Esquire

Post Office Box 2842

St. Petersburg, Florida 33731

Stephanie N. Rugg

City of S t. Petersburg

175 5th Street, North

St. Petersburg, Florida 33701

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.