07-000427F Julian B. Irby, P.E., And Irby Engineering And Construction, Inc. vs. Florida Engineers Management Corporation Status: Closed DOAH Final Order on Wednesday, April 18, 2007.

Summary: Petitioners are not entitled to an award of attorney`s fees and costs because Respondent was substantially justified in initiating the disciplinary proceedings against Petitioners.

Case No. 07-0427F

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIAN B. IRBY, P.E., AND ) ) ) ) ) ) ) ) ) ) ) ) )

IRBY ENGINEERING AND

CONSTRUCTION, INC., FINAL ORDER

Petitioners,

vs.

FLORIDA ENGINEERS

MANAGEMENT CORPORATION,

Respondent.

On March 27, 2007, a hearing was held in Tallahassee,

Florida, pursuant to the authority granted in Sections 120.56,

120.569 and 120.57(1), Florida Statutes. The case was considered

by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioners: A. G. Condon, Jr., Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32502

For Respondent: John J. Rimes III, Esquire

Florida Engineers Management Corporation

2507 Calloway Road, Suite 200

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Petitioners are entitled to attorneys' fees and

costs pursuant to Section 57.111, Florida Statutes?

PRELIMINARY STATEMENT

On December 14, 2006, the Florida Engineers Management

Corporation (FEMC) issued a Final Order dismissing disciplinary

charges filed against Petitioners with respect to a house

relocation project. The underlying facts forming the basis of

the Final Order are described in DOAH Case No. 06-1871. On

January 22, 2007, Petitioners filed a Motion to Tax Attorneys'

Fees, Legal Assistant Fees and Costs with Interest and

Incorporated Memorandum of Law, seeking attorneys fees and costs

pursuant to Section 57.111, Florida Statutes. The Motion was

treated as a Petition for Attorneys' Fees and Costs and assigned

as DOAH Case No. 07-0427F.

Respondent filed a Motion for Summary Final Order, which was

denied by Order March 20, 2007. The case proceeded to hearing

March 27, 2007, as originally noticed. No witnesses were

presented by either party. However, Petitioners' Exhibits

numbered 1 and 2 were admitted into evidence, as was Respondent's

Composite Exhibit numbered 1. Prior to hearing, the parties

stipulated that Petitioners are prevailing small business parties

in the underlying case; that the amount of fees claimed is

reasonable and not unjust; and that Respondent is not a nominal

party as defined by Section 57.111, Florida Statutes.

The parties were given until April 6, 2007, to file their

proposed final orders. Both submissions were timely filed and

have been carefully considered in the preparation of this Final

Order.

FINDINGS OF FACT

1. On September 29, 2004, Respondent notified Petitioners

that a complaint against them was received regarding an

engineering project and that an investigation was to be

undertaken.

2. Between September 29, 2004, and March 16, 2006,

Petitioners submitted numerous informal responses to Respondent

either via e-mail or regular United States mail.

3. On March 16, 2006, the probable cause panel of the Board

of Professional Engineers found probable cause to charge

Petitioners with violating Section 471.033(1)(g), Florida

Statutes, by being negligent in the practice of engineering.

4. At the time it found probable cause, the probable cause

panel reviewed the materials that are attached to the Affidavit

of Teresa Bake, Custodian of Records of FEMC (Respondent's

Composite Exhibit numbered 1). These materials include the

Investigative Report compiled by the investigator for FEMC; a

copy of the plans for the relocation project, and letters dated

October 22, 2005, and February 5, 2006, from Roland Holt, P.E.,

FEMC's engineering consultant. Mr. Holt's reports contained the

opinion that Petitioners' plans for the relocation project were

deficient.

5. An Administrative Complaint reflecting the March 16,

2006, findings of the probable cause panel was issued April 20,

2006, and was subsequently served on Petitioners.

The allegations in the Administrative Complaint are consistent

with the purported deficiencies noted in Mr. Holt's letters.

6. Petitioners requested a Section 120.57(1) hearing, which

was held July 31, 2006. On August 29, 2006, a Recommended Order

was filed recommending that all charges against Petitioners be

dismissed.

7. On December 12, 2006, the Board of Professional

Engineers entered a Final Order that adopted the findings of fact

and conclusions of law recommended by the administrative law

judge and dismissed the charges against Petitioners.

8. The amount of attorneys' fees claimed is $26,298.00,

which is reasonable and not unjust. The parties have stipulated

to recoverable costs of $793.00, which represents that portion of

the costs that conform to the Statewide Guidelines for Taxation

of Costs in Civil Actions, effective January 1, 2006.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties to this action in

accordance with Sections 120.569 and 120.57(1), Florida Statutes.

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

(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 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.

11. 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.

12. It is the Respondent's burden to show that its

initiation of an administrative action was substantially

justified as envisioned by Section 57.111(4)(e). "It is the

agency which must affirmatively raise and prove the exception."

Helmy v. Department of Business and Professional Regulation , 707

So. 2d 366 (Fla. 1st DCA 1998).

13. When dealing with license disciplinary actions, in

order to determine whether there was substantial justification

for filing an Administrative Complaint against a licensee, the

focus is upon the information before the probable cause panel at

the time it found probable cause and directed the filing of an

Administrative Complaint. Fish v. Department of Health , 825

So. 2d 421, 423 (Fla. 4th DCA 2002); Department of Professional

Regulation v. Toledo Realty , 549 So. 2d 715, 716 (Fla. 1st DCA

1989); Kibler v. Department of Professional Regulation , 418

So. 2d 1081 (Fla. 4th DCA 1982).

14. The basis for proceeding at the time the Administrative

Complaint was authorized must be solid but not necessarily

correct.

To sustain a probable cause determination

there must be some evidence considered by the

panel that would reasonably indicate that the

violation had indeed occurred. The evidence,

however, need not be as compelling as

that which must be presented at formal

administrative hearing on the charges to

support a finding of guilt and the imposition

of sanctions.

Fish , 825 So. 2d 423 (citations omitted); Toledo Realty .

15. In this case, the probable cause panel of the Board of

Engineering had a reasonable basis in law and fact to direct the

charges in the Administrative Complaint. It had before it a copy

of the plans, the investigative report, and expert witness

reports indicating that in his view, there were several

deficiencies in the plans that were inconsistent with the

requirements of the Florida Building Code. Therefore, it had

"some evidence considered by the panel that would reasonably

indicate that the violation had indeed occurred." Fish , 825 So.

2d at 423.

16. Petitioners point to several deficiencies in Mr. Holt's

expert reports that they contend nullify the panel's

consideration of the reports. Further, they argue that the

evidence presented to the panel was virtually the same as that

presented at formal hearing, after which the undersigned

recommended dismissal of the charges.

17. The deficiencies to which they cite, however, go to the

weight and credibility to be attached to the opinion of the

expert at formal hearing. Compare Department of Health, Board of

Physical Therapy Practice v. Cralle , 852 So. 2d 930 (Fla. 1st DCA

2003); Department of Health, Board of Medicine v. Thomas , 890 So.

2d 400, 401 (Fla. 1st DCA 2004) ("The Department is free to

believe the opinion of one expert despite the existence of two

expert opinions to the contrary.").

18. For the undersigned to assess the quality of the expert

report is to assess the weight and credibility to be accorded the

expert's opinion, which is simply not the function of the

probable cause panel at the time it considers whether an

Administrative Complaint should be filed. Even assuming that the

evidence presented by FEMC to the panel is the same as that

presented at formal hearing, as Petitioners contend, the role of

the panel is simply different.

19. While a probable cause panel considers whether some

evidence exists to proceed, the burden at hearing is clear and

convincing evidence to support an alleged violation. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). The two cannot be

equated. That the evidence presented at hearing was not

sufficient to ultimately sustain the charges does not mean that

it was insufficient to initiate the proceedings.

20. Moreover, it cannot be said that the panel had all of

the same information presented at formal hearing. The

undersigned had the benefit of testimony by Petitioner's expert

as well as the testimony of Petitioner Julian Irby. Moreover,

all witnesses who testified at formal hearing were subjected to

cross-examination. The probable cause panel does not have the

opportunity or the responsibility to weigh the strengths and

weaknesses of each party's position, but rather simply to

determine if some evidence exists to support the conclusion that

a violation has occurred. Agency for Health Care Administration

v. Gonzalez , 657 So. 2d 56 (Fla. 1st DCA 1995); Gentele v.

Department of Professional Regulation, Board of Optometry , 513

So. 672 (Fla. 1st DCA 1987). Here, the panel performed that

function. The fact that charges were ultimately dismissed does

not form a basis for fees and costs pursuant to Section 57.111,

Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

Petitioners' request for attorney's fees and costs pursuant

to Section 57.111, Florida Statutes, is denied.

DONE AND ORDERED this 18th day of April, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 Clerk of the

Division of Administrative Hearings

this 18th day of April, 2007.

COPIES FURNISHED:

John J. Rimes, III, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

A. G. Condon, Jr., Esquire

Emmanuel, Sheppard & Condon

Post Office Drawer 1271

Pensacola, Florida 32596

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Paul J. Martin, Executive Director

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

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 the original

notice of appeal with the Clerk of the Division 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.