06-001078F Hernandez Enterprises vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed DOAH Final Order on Monday, September 11, 2006.

Summary: Respondent must pay Petitioner`s attorney fees, as Petitioner is a prevailing small business party. Respondent`s actions were not substantially justified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDEZ ENTERPRISES , INC. , )

)

Petitioner , )

)

vs. ) Cas e No. 06 - 1078F

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS' )

COMPENSATION , )

)

Respondent . )

)

FINAL ORDER

This cause came on for f inal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on July 18 , 2006, in Jacksonville ,

Florida.

APPEARANCES

For Petitioner: H. Leon Holbrook , Esquire

Tara B. Van Rooy , Esquire

Holbrook, Akel, Cold,

Stiefel & Ray, P.A.

One Independent Drive, Suite 2301

Jacksonville, Florida 32202 - 5059

For Respondent: Colin M. Roopnarine, Esquire

Douglas Dolan, Esquire

Department of Finan cial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

STATEMENT OF THE ISSUE

The issue is whether Respondent should reimburse Petitioner

for the attorney s' fees and costs Petitioner expended in its

suc cessful defense of Respondent's Stop - Work Order.

PRELIMINARY STATEMENT

Petitioner Hernandez Enterprises, Inc. (Hernandez , Inc. )

filed a Petition for Award of Attorneys ' Fees and Costs on

March 23, 2006, with an acc ompanying Affidavit of Attorney s '

Fees a nd Costs . Earlier, Hernandez, Inc., had contested the

Department of Financial Services, Division of Workers'

Compensation's (Division) Stop - Work Order (SWO) in Division of

Administrative Hearings Case N o. 04 - 1174 .

That case resulted in a Recommended Ord er finding that the

SWO issued against Hernandez, Inc., was improvidently issued.

The Department of Financial Services adopted the Recommended

Order in pertinent part in a Final Order filed January 25, 2006.

That Final Order made Hernandez, Inc., a preva iling party and

the Petition was an outgrowth of that action. The Affidavit

itemized the services rendered to Hernandez, Inc., and the costs

expended, as required by Section 57.111, Florida Statutes. On

April 17, 2006, the Di vision of Workers' Compensati on filed a

response.

The case was set for July 18, 2006, in Jacksonville,

Florida , and was heard as scheduled.

Petitioner's principal, Jorge Hernandez testified .

Petitioner also presented the testimony of Harold Beckner

Bachner, a certified public accou ntant. The Division presented

the testimony of Division employees Katina Johnson and

Robert Lambert .

A Transcript was filed on August 31, 2006 . After the

hearing, Petitioner and Respondent filed their Proposed Final

Order s on August 31, 2006 , the date f or filing agreed upon by

the parties at the conclusion of the hearing.

References to statutes are to Florida Statutes (200 3 )

unless otherwise noted.

FINDINGS OF FACT

1. Hernandez, Inc., was a contractor based in the

Jacksonville, Florida area, and wa s in the business of

installing dry wall, among other construction - related

activities. Its principal owner, Jorge Hernandez, founded the

company in 1981.

2. The Department of Financial Services is the state

agency responsible for enforcing the Workers' Compensation Law.

This duty is delegated to t he Division of Workers' Compensation.

The Division is a state agency. It is not a nominal party.

3. On February 5, 2004, Hernandez, Inc., was engaged in

installing drywall in the Bennett Federal Building in

Jacksonville, Florida, using its own personnel , who were leased

from Matrix, Inc., an employee leasing company, and two

subcontractors, GIO & Sons (GIO), of Norfolk, Virginia, and U&M

Contractors, Inc., (U&M), of Charlotte, North Carolina. The

leased emp loyees were properly covered by workers' compensation

insurance provided by the lessor.

4. Prior to contracting with GIO and U&M, Hernandez, Inc.,

asked for and received ACORD certificates of insurance, which on

their face indicated that the subcontracto rs had both liability

coverage and workers' compensation coverage. It is the practice

of Hernandez, Inc., to ensure that certificates of insurance are

provided by subcontractors . The office staff of Hernandez,

Inc., at all times prior to going out of bus iness, track ed the

certificates and ensured that they were kept current.

Hernandez , Inc. had relied on hundreds of these ACORD

certificates in the past.

5. During times pertinent, neither GIO or U&M maintained

workers' compensation insurance on their em ployees that complied

with the requirements of Section 440.38(7) , Florida Statutes .

6 . On February 5, 2004, Katina Johnson, an investigator

with the Division 's Jacksonville office , made a routine visit to

the Bennett Federal Building with another investi gator. She

observed personnel from Hernandez, Inc., and its subcontractors

GIO and U&M , installing dry wall. She also determined that

Hernandez, Inc., had a contract to install dry wall as a

subcontractor participating in the construction of the Mayport

Naval Station BEQ. U&M worked at both the Bennett Federal

Building site and the Mayport BEQ site as a subcontractor of

Hernandez, Inc. Ms. Johnson discovered that neither U&M nor GIO

had workers' compensation coverage for its employers.

7 . Ms. Johnson a sked for and receive d the certificates of

insurance that Hernandez, Inc., had obtained from GIO and U&M,

which facially suggested that Hernandez, Inc. , had determined

that its subcontractors had appropriate coverage. Nevertheless,

she issued a SWO on Febr uary 26, 2004, to Hernandez, Inc. , as

well as GIO, and U&M. By the SWO , Hernandez, Inc., was charged

with failure to ensure that workers' compensation meeting the

requirements of Chapter 440, Florida Statutes, and the Florida

Insurance Code, was in place for GIO and U&M. She also issued

a n Order of Penalty Assessment that eventually became an Amended

Order of Penalty Assessment dated March 19, 2004.

8 . The SWO stated , in bold print, that Hernandez, Inc. ,

was , "Ordered to Stop Work and Cease All Business Operations in

the State." Hernandez, Inc., was, at the time, also engaged in

construction at the new Jacksonville Library and at the

Carlington Apartments, both of which were located in Florida.

B y the terms of the SWO , Hernandez was required to stop wor k in

those sites also . The Division had no evidence that might cause

it to believe that Hernandez, Inc. , was operating in violation

of the law at those sites.

9 . The SWO contained with it a Notice of Rights advising

that a formal or informal administra tive hearing might be had

and required that a petition for a hearing be filed within 21

days of receipt of the SWO , if a hearing was desired .

Hernandez, Inc., was not informed that it had the right to an

immediate hearing.

10 . Hernandez, Inc. , timely f iled a petition demanding a

formal hearing. In an effort to get back to work, Hernandez,

Inc. , entered into an agreement with the Division , whereby it

paid a partial penalty of $ 46,694.03, but admitted no liability.

The formal hearing did not take place until August 16, 200 5 .

1 1 . Ms. Johnson had the power to issue a stop - work order.

She did not have to get approval from a neutral magistrate or

from the Division. Because she was a recent employee of the

Division, she conferred with her supervisor Robert Lambert

before taking action , and he approved her action in writing .

1 2 . In February 2004, it was the policy of the Division to

issue SWO's for all work sites even though it concluded that a

violation had occurred in only the site or sites visited. The

Division policy did not require an investigation into all

worksites as a prerequisite to shutting down all worksites. Th e

policy requiring a contractor to cease work at all worksites was

not adopted as a rule.

1 3 . In February 2004, the Division asserted that

compliance with Section 440.10(1)(c) , Florida Statutes, required

a general contractor to look beyond an ACORD certificate of

insurance to determine if subcontractors had complied with the

requirement to maintain the required workers' compensation

cove rage ". . . under a Florida endorsement using Florida rates

and rules pursuant to payroll reporting that accurately reflects

the work performed in this state by such employees." This

policy was not adopted as a rule and was subsequently abandoned .

1 4 . Th e Division, in implementing this policy, asserted

that a general contractor must actually review the policy of a

subcontractor presenting an ACORD certificate and determine if

it was in effect and if it complied with Florida law. This

policy was not adopt ed as a rule and the policy was subsequently

abandoned .

1 5 . The Division further asserted that the employees of

the subcontractor of a general contractor were to be viewed as

if they were employees of the general contractor, when

contemplating workers' co mpensation coverage. This policy was

not adopted as a rule.

1 6 . Ms. Johnson acted in conformance with the Division's

policies in effect at the time the SWO was issued .

17. The net worth of Hernandez , Inc., was a negative

$1, 821 , 599 , on December 31, 2003 . Hernandez, Inc. , was

struggling financially in February 2004 , but was on the way to

recovery until the SWO was issued. On November 30, 2004, the

net worth of Hernandez, Inc., was a negative $1,161,865, and

this figure included the sum of $978,000 that Mr. Hernandez put

into the business. Accordingly, Herna n dez, Inc., was a small

business party for purposes of Subsection 57.111( 4)(a) , Florida

Statutes , during times pertinent.

18. The SWO , which terminated work at all Hernandez work

sites, torpedoed any chance the company had to continue in

business. Mr. Hernandez mortgaged his house, which he

subsequently lost to creditors, in an effort to keep Hernandez,

Inc., in business. All of his efforts failed. The failure was

a direct result of the actions of the Division . The Division's

interpretations of the law that precipitated their policies , and

thus the failure of the business, were both wrong and

unreasonable .

19 . Subsequent to the hearing and Recommended Order in

Department of Financial Services, Div ision of Workers'

Compensation v. Hernandez, Inc. , Case N o. 04 - 1174 (DOAH

October 3, 2005), the Chief Financial Officer entered a Final

Order styled, In the Matter of: Hernandez, Enterprises, Inc. ,

Case N o. 75492 - 05 - WC ( Florida Department of Financial Se rvices ,

January 25, 2006) .

20 . The Final Order noted that the contractor , Hernandez ,

Inc. , complied with the extant law when it, ". . . demanded and

received proof of insurance . . . . " The Final Order also noted

that there was no authority produced by the Division that would

permit the imposition of a fine on Hernandez , Inc.

2 1 . The Final Order further recited that there was no

statutory duty on the part of a contractor to ensure (emphasis

supplied) that its subcontractors ha d secured workers'

compen sation coverage for its employees. It noted that, ". . .

without some formal delineation of the specific obligations of a

contractor in ascertaining proof of insurance from a

subcontractor, the Department cannot impose a penalty upon the

facts presented i n the instant case."

22 . The Division was ordered to rescind the SWO issued

February 26, 2004, and the Amended Order of Penalty Assessment

dated March 19, 2004 , and was further ordered to repay the

amount of $46,694.03, which had been paid to persuade the

Division to abate the SWO .

23 . The action was initiated by the Division, which is a

state agency. At the time the SWO was initiated , there was no

reasonable basis in law and fact to do so. The actions of the

Division were not "substantially justified."

24. Hernandez, Inc., prevailed in the hearing because the

Chief Financial Officer entered a Final Order in its favor and

the O rder has not been reversed on appeal and the time for

seeking judicial review of the Final Order has expired.

Hernandez, Inc., is, therefore, a "prevailing small business

party."

2 5 . Hernandez , Inc. , paid its law firm, Holbrook, Akel,

Cold, Stiefel & Ray, P.A., $51,815.50 in attorney s' fees, and

paid $8,837.00 in costs , in its successful defense of the

Division's actions.

CONCLUS IONS OF LAW

2 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 57.111(4) and 120.57(1), Fla. Stat.

2 7 . Section 57.111 , Florida Statutes , is the Equal Access

to Justice Act ( Act) . Portions that pertain to this case

follow :

57.111. Civil actions and administrative

proceedings initiated by state agencies;

attorneys' fees and costs .

(1) This section may be cited as the

' Florida Equal Access to Justice Act. '

* * *

(3) As u sed in this section:

(a) The term ' attorneys ' fees and costs '

means the reasonable and necessary

attorney s ' fees and costs incurred for all

preparations, motions, hearings, trials, and

appeals in a proceeding.

(b) The term ' initiated by a state agency '

means that the state agency:

1. Filed the first pleading in any state or

fed eral court in this state;

2. Filed a request for an administrative

hearing pursuant to chapter 120; or

3. Was required by law or rule to advise a

small business party of a c lear point of

entry after some recognizable event in the

investigatory or other free - for m proceeding

of the agency.

(c) A small business party is a ' prevailing

small business party ' when:

1. A final judgment or order has been

entered in favor of the sm all 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;

* * *

(d) The term ' small business party ' means:

1.a. A sole proprietor of an unincorporated

bu siness, 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 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;

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;

or

* * *

(e) 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.

(f) The term ' state agency ' has the meaning

described in s. 120.52(1).

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

award of attorneys ' 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.

(b) 1. To apply for an award under this

section, the attorney for the pr evailing

small business party must submit an itemized

affidavit to the court which first conducted

the adversarial proceeding in the underlying

action, or to the Division of Administrative

Hearings which shall assign an

administrative law judge, in the cas e of a

proceeding pursuant to chapter 120, which

affidavit shall reveal the nature and extent

of the services rendered by the attorney as

well as the costs incurred in preparations,

motions, hearings, and appeals in the

proceeding.

2. The application for an award of

attorney s ' fees must be made within 60 days

after the date that the small business party

becomes a prevailing small business party.

(c) The state agency may oppose the

application for the award of attorney s ' fees

and costs by affidavit.

( d) The court, or the administrative law

judge in the case of a proceeding under

chapter 120, shall promptly conduct an

evidentiary hearing on the application for

an award of attorney s ' fees and shall issue

a judgment, or a final order in the case of

an ad ministrative law judge. The final

order of an administrative law judge is

reviewable in accordance with the provisions

of s. 120.68. If the court affirms the

award of attorney s ' fees and costs in whole

or in part, it may, in its discretion, award

additio nal attorney s ' fees and costs for the

appeal.

1. No award of attorney s ' fees and costs

shall be made in any case in which the state

agency was a nominal party.

2. No award of attorney s ' fees and costs

for an action initiated by a state agency

shall exc eed $ 50,000.

* * *

28. 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 t he evidence that

it prevailed in the underlying action and that it was a small

business party at the time the action was initiated. Once the

party requesting the award has met this burden, the burden

shifts to the agency to establish that its action in in stituting

the proceeding was substantially justified or that special

circumstances exist that would make an award of attorneys ' fees

and costs to Petitioner unjust. Helmy v. Department of Business

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

1998).

2 9 . In order for a party to obtain attorney s' fees from a

state agency, it must demonstrate compliance with all of the

dictates of Section 57.111 , Florida Statutes . In this case,

Hernandez, Inc., demonstrated by a preponderance of the evide nce

that it was a party to an administrative action initiated by a

state agency and that it was a prevailing small business party

under the Act .

30 . Hernandez, Inc., timely applied for an award under the

section and submitted the required itemized affi davit, which set

forth the nature and extent of the services rendered by its

attorney as well as the costs incurred in preparations, motions,

hearings, and appeals in the proceeding.

31 . The attorney s' fees and costs exceeded $50,000, so the

maximum amou nt that may be award ed is limited to that figure.

3 2 . The remaining question is whether the agency has a

defense in that its actions were substantially justified or that

special circumstances exist which would make the award unjust.

With regard to the l atter requirement, there are no special

circumstances which would make the award unjust. With regard to

the former, a further consideration of the laws invoked by the

Division in taking its action must be considered.

3 3 . In determining whether the Div ision's actions were

substantially justified, it is the information possessed by the

Division , and the Division's application of the law at the time

the SWO was issued, that is of paramount importance. Dep't of

Health, Bd. o f Physical Therapy Practice v. Cralle , 852 So. 2d

930 (Fla. 1 st DCA 2003).

34. The Act is modeled after the Equal Access to Justice

Act, 5 U.S.C. Section 504. When a Florida statute is patterned

after a federal law, on the same subject, ". . . it will take

the same construction in the Florida courts as its prototype has

been given in the federal courts insofar as such construction is

harmonious with the spirit and policy of Florida legislation on

the subject." Pasco County School Board v. Florida Public

Employees Relations Commission , 353 So. 2d 108 (Fla. 1 st DCA

1977).

35. In McDonald v. Schweiker , 726 F.2d 311 (7th Cir.

1983), the court held that "'substantially justified' does not

mean 'nonfrivolous'. . . . It means that the government must

have a solid though not necessarily corr ect basis in fact and

law for the position that it took in this action."

36. In this case, the facts adduced by Ms. Johnson in

February of 2004 were solid. The interpretation of the law

used, however, was n either solid nor legally correct, as will be

dis cussed below.

3 7 . Section 440.107 (7)(a) , Florida Statutes, which

provides for the issuance of SWO's, provides in part as follows:

(7)(a) Whenever the department determines

that an employer who is required to secure

the payment to his or her employees of the

compensation provided for by this chapter

has failed to secure the payment of workers'

compensation required by this chapter or to

produce the required business records under

subsection (5) within 5 business days after

receipt of the written request of the

department, such failure shall be deemed an

immediate serious danger to public health,

safety, or welfare sufficient to justify

service by the department of a stop - work

order on the employer, requiring the

cessation of all business operations. If

the department makes such a determination,

the department shall issue a stop - work order

within 72 hours. The order shall take

effect when served upon the employer or, for

a particular employer worksite, when served

at that worksite. In addition to serving a

stop - work order at a particular worksite

which shall be effective immediately, the

department shall immediately proceed with

service upon the employer which shall be

effective upon all employer worksites in the

state for which the employer is not in

compl iance. A stop - work order may be served

with regard to an employer's worksite by

posting a copy of the stop - work order in a

conspicuous location at the worksite. The

order shall remain in effect until the

department issues an order releasing the

stop - work order upon a finding that the

employer has come into compliance with the

coverage requirements of this chapter and

has paid any penalty assessed under this

section. The department may issue an order

of conditional release from a stop - work

order to an emp loyer upon a finding that the

employer has complied with coverage

requirements of this chapter and has agreed

to remit periodic payments of the penalty

pursuant to a payment agreement schedule

with the department. If an order of

conditional release is iss ued, failure by

the employer to meet any term or condition

of such penalty payment agreement shall

result in the immediate reinstatement of the

stop - work order and the entire unpaid

balance of the penalty shall become

immediately due. The department may r equire

an employer who is found to have failed to

comply with the coverage requirements of

s. 440.38 t o file with the department, as a

condition of release from a stop - work order,

periodic reports for a probationary period

that shall not exceed 2 years th at

demonstrate the employer's continued

compliance with this chapter. The

department shall by rule specify the reports

required and the time for filing under this

subsection.

* * *

3 8 . The Division, by ordering Hernandez, Inc., to stop

work at t wo sit es it had not even inspected, completely

disregarded the language in Section 440.107(7)(a), Florida

Statutes , providing that, "In addition to serving a stop - work

order at a particular worksite which shall be effective

immediately, the department shall imme diately proceed with

service upon the employer which shall be effective upon all

employer worksites in the state for which the employer is not in

compliance (emphasis added). This action was not substantially

justified.

3 9 . Section 440.10(1) (c) , Florida Statutes , provides that,

"A contractor shall require a subcontractor to provide evidence

of workers' compensation insurance. " Hernandez, Inc., provided

the Division with the ACORD certificates indicating the two

noncovered subcontractors were insured. T hese ACORD

certificates were evidence of workers' compensation insurance.

The Division's policy that general contractors like Hernandez,

Inc., must investigate the subcontractor's policies and make

determinations with regard to the detail s of the coverage , is

not found in any statute or rule. The action taken against

Hernandez, Inc., based on this policy, was not substantially

justified.

40 . The Division had, at the time the SWO was issued, a

policy , but no rule, that deemed the employees of the

subcont ractor to be the employees of the general contractor, and

acted against Hernandez, Inc., in conformance with this policy.

The Division referred to the subcontractors' employees as

"statutory employees," pursuant to Section 440.10(1)(b) , Florida

Statutes .

41 . T his policy , which was not adopted as a rule, ignored

the phrase in that statute that recited, ". . . except to

employees of a subcontractor who has secured such payment," and

the following subsection (c), recited above, which informed

general contra ctors that they must only require evidence that a

subcontractor who has secured such payment. This policy, and

the action taken against Hernandez, Inc. , pursuant to it, was

not substantially justified.

42 . The Final Order recognizes this in its statement that,

"In this case, the Petitioner (The Division) has not cited

authority in the Florida Administrative Code that would permit

the Petitioner, under the particular facts of this case, to

impose a fine on a contractor, where the contractor credibly

demand ed and received proof of insurance, that the subcontractor

had failed to secure coverage. . . ." It further recited that,

"Without some formal delineation of the specific obligations of

a contractor in ascertaining proof of insurance from a

subcontractor, the Department cannot impose a penalty under the

facts presented in the instant case."

43. The Division cannot claim to have been substantially

justified in issuing the SWO when the Department of Financial

Services admits it had no legal authority to do so. See Lagoon

Oaks, Inc. v. Department of Health and Rehabilitative Services ,

Case No. 96 - 4969F (DOAH July 2, 1997).

44. For the several reasons noted , the Division did not

have a "solid though not necessarily correct basis in law" upon

which it could g round its actions in February 2004. The

Division's interpretation of the law was well wide of the mark.

There was no reasonable basis in law at the time the Division

commenced its action against Hernandez, Inc. Accordingly, the

SWO issued by the Divisio n was not substantially justified.

45. Therefore, the dictates of Section 57.111 , Florida

Statutes, have been wholly satisfied and the Division should pay

Hernandez, Inc., the attorney s' fees and costs expended in

defense of the Division's action, up to t he $50,000 limit

provided by the statute.

DISPOSITION

Based upon the Findings of Fact and Conclusions of Law, it

is

ORDERED that Petitioner's Petition for Attorney s ' Fees and

Costs is granted. Respondent shall pay to Petitioner within 30

days of the dat e of this Final Order the sum of $50,000 for

attorneys ' fees and costs incurred by Petitioner in DOAH Case

No. 04 - 1174.

DONE AND ORDERED this 11th day of September , 2006, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 11th day of September , 2006 .

COPIES FURNISHED :

H. Leon Holbrook, III, Esquire

Tara B. Van Rooy, Esquire

Holbrook, Akel, Cold,

Stiefel & Ray, P.A.

One Independent Drive , Suite 2301

Jacksonville, Florida 32202 - 5059

Colin M. Roopnarine, Esquire

Douglas Dolan, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Carlos G. Mu ñ iz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Fl orida 32399 - 0307

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

e ntitled 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 the original Notice of Appeal with the agency clerk of

the Divi sion of Administrative Hearings and a 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.