08-001827F Sheryl Lyn Braxton And Braxton Designers vs. Department Of Business And Professional Regulation Status: Closed DOAH Final Order on Monday, January 26, 2009.

Summary: Actions taken by probable cause panel were not substantially justified. Fees are awarded to Petitioner pursuant to to Florida Equal Access to Justice Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERYL LYN BRAXTON AND )

BRAXTON DESIGNERS, )

)

Petitioners, )

)

vs. ) Case No. 08-1827F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION )

)

Respondent. )

)

FINAL ORDER

A hearing was held pursuant to notice on October 24, 2008,

via video teleconference with locations in Tallahassee and

Jacksonville, Florida, before Barbara J. Staros, a duly-

appointed Administrative Law Judge.

APPEARANCES

For Petitioner: Christopher A. White, Esquire

Reziecsek, Frazer, Hastings,

White & Shafer

4230 Pablo Professional Court

Suite 200

Jacksonville, Florida 32224

For Respondent: David Minacci, Esquire

Smith, Thompson, Shaw

& Manausa, P.A.

3520 Thomasville Road

Tallahassee, Florida 32309-3469

STATEMENT OF THE ISSUE

Whether Petitioners are entitled to an award of attorney's

fees and costs pursuant to Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

On April 8, 2008, Petitioners, Sheryl Braxton and Braxton

Designers (hereinafter Braxton), 1/ filed a Supplemental Motion

for Attorney's Fees and costs, an Affidavit of Petitioners’

attorney regarding attorney’s fees, and supporting fee

statement. The Motion requests an award of fees incurred by

Braxton in litigating the underlying merits case (hereinafter

“merits case”) styled, Department of Business and Professional

Regulation v. Sheryl Lyn Braxton and Braxton Designers , DOAH

Case No. 07-4001 (Order Closing File entered on October 19,

2007; agency Closing Order issued November 5, 2007). 2/

On April 18, 2008, Respondent (Petitioner in the merits

case), Department of Business and Professional Regulation

(Department), filed a Response to Respondents’ Supplemental

Motion for Attorney's Fees and Costs (Response). In the

Response, the Department asserted that the Supplemental Motion

for Attorney’s Fees was untimely. The Department further

asserted that its actions in finding probable cause and issuing

an Administrative Complaint in the merits case were

substantially justified and, therefore, an award of attorney’s

fees would be unjust.

On June 3, 2008, the parties filed a Stipulated Motion for

Court to Rule on Issue of Timeliness of Request for Attorney

Fees. A telephonic hearing was conducted on the Stipulated

Motion on June 10, 2008.

On June 30, 2008, the undersigned entered an Order on Issue

of Timeliness, finding that Braxton’s Motion for Attorney’s Fees

and Costs, as supplemented, was timely filed. The case was

scheduled for final hearing on August 25, 2008. The Department

filed a Motion to Continue Hearing, which was granted. The

hearing was rescheduled for October 24, 2008, and was heard as

scheduled.

At the commencement of the hearing, the Department

stipulated that Braxton is the prevailing party from the merits

case and is a small business party for purposes of Section

57.111, Florida Statutes.

At hearing, Braxton presented the testimony of Sheryl Lyn

Braxton and the Department presented the testimony of Dwight

Chastain. Joint Exhibits numbered 1 through 24 were admitted

into evidence.

A Transcript consisting of one volume was filed on

November 10, 2008. Braxton filed an unopposed Motion for

Extension of Time in which to file proposed final orders. The

Motion was granted. The parties timely filed Proposed Final

Orders, which have been considered in preparation of this Final

Order.

Unless otherwise specified, all references are to the 2007

version of the Florida Statutes.

FINDINGS OF FACT

Stipulated Facts

1. On or about May 14, 2007, the Department filed an

Administrative Complaint alleging that Respondents in the merits

case held themselves out as interior designers.

2. On or about August 15, 2007, Braxton filed an Election

of Rights requesting a formal hearing.

3. On October 15, 2007, Braxton filed a Motion for

Attorney’s Fees and Costs.

4. On or about October 18, 2007, the Department filed a

Motion to Dismiss Formal Hearing based on the parties’ agreement

that the case would be resubmitted to the Probable Cause Panel

with the recommendation of dismissal.

5. On or about October 19, 2007, the Division of

Administrative Hearings entered an Order Closing File.

6. On or about November 5, 2007, the case was presented to

the Probable Cause Panel and a Closing Order was entered.

7. On or about December 18, 2007, a letter was sent to

Braxton’s attorney indicating the matter was closed and no

further action was required. However, the letter did not

enclose a copy of the Probable Cause Panel Closing Order.

8. On March 3, 2008, Braxton sent a letter to the

Department’s counsel asking for a copy of “any final action

taken by the Probable Cause Panel.”

9. On or about March 7, 2008, a copy of the closing order

was faxed to counsel for Braxton.

10. On or about April 7, 2008, Braxton filed a

Supplemental Motion of Attorney’s Fees and Costs.

Facts Based Upon the Evidence of Record

11. In the Motion and Supplemental Motion, Braxton seeks

relief under the Florida Equal Access to Justice Act, Section

57.111, Florida Statutes.

12. There is no dispute that Braxton is a small business

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

13. There is no dispute that Braxton is the prevailing

party in the underlying merits case.

14. There is no dispute that the fees and costs set forth

in the April 7, 2008, affidavit filed with the Supplemental

Motion for Attorney’s Fees and Costs are reasonable. The

undersigned has reviewed the Supplemental Affidavit as to

Attorney’s Fees and Costs filed on October 27, 2008, and the

Second Supplemental Affidavit as to Attorney’s Fees and Costs

filed on December 10, 2008, and finds the fees and costs

contained therein to be reasonable.

15. Dwight Chastain is an investigator for the Department

and, while employed by a private law firm, investigates

complaints concerning the Board of Architecture and Interior

Design. In December 2006, Mr. Chastain received a complaint

letter regarding Petitioner herein, Sheryl Lyn Braxton. The

complaint letter was addressed to the law firm for which

Mr. Chastain is employed. The letter alleged that Ms. Braxton

represented herself to the public as an interior designer, and

that the complainant could find no evidence that she held a

license “specifically that of an interior designer as

represented in attached CBS website, is held either by her

personally or her company “Braxton Designs.” Attached to the

complaint letter is a page purportedly from the website,

CBS.com, specifically a link from the television show, “Big

Brother 2.”

16. Additionally, the complaint letter alleged that

Ms. Braxton had verbally represented to "many individuals" that

she had performed interior design work for Ivana and Donald

Trump at the Plaza Hotel in Manhattan.

17. While the letter contains a signature, it is

impossible to decipher the writer’s last name, and Mr. Chastain

considered the signature to be illegible. Further, the letter

did not contain a return address or a telephone number. Because

the writer’s name is illegible and there was no contact

information in the letter, the complaint letter is essentially

anonymous.

18. The printed page attached to the complaint letter from

the CBS website identifies a participant on the show as

“Sheryl,” with no last name mentioned, from Ponte Vedre Beach,

Florida. Under the heading “personal profile,” her occupation

is listed as interior designer. The copyright date at the

bottom of the page is “MMIII,” which is 2003, although

Ms. Braxton participated in the Big Brother show in 2001.

19. The name “Braxton Interiors” does not appear on the

printout from the CBS website.

20. Also attached to the complaint letter is a page

purportedly from the myflorida.com website showing that Sheryl

Lyn Braxton held a current real estate license and was employed

by Florida Network LLC, a real estate corporation.

21. Mr. Chastain could not decipher the signature on the

letter and, therefore, did not attempt to contact the

complainant. He did a fictitious name search of and did not

find anything under the name of Braxton Designs, Braxton

Designers or Sheryl Lyn Braxton.

22. Mr. Chastain searched the Department's database and

found that Sheryl Lyn Braxton was not licensed by the Board of

Architecture and Interior Design.

23. Mr. Chastain also went to the CBS website and found

the page referencing “Sheryl” more fully described above in

paragraph 18.

24. There is nothing in the record to indicate that

Mr. Chastain called CBS to seek any information which

Ms. Braxton submitted to CBS about herself, i.e. , whether she

actually held herself out to be an interior designer to CBS.

25. Mr. Chastain acknowledged at hearing that in his

he found nothing indicating that Ms. Braxton held herself out to

anyone as an interior designer. There is nothing in the record

to indicate that Mr. Chastain spoke to anyone who confirmed the

allegations in the complaint letter that Ms. Braxton verbally

held herself out to anyone that she was an interior designer.

26. On January 5, 2007, Mr. Chastain wrote a letter to

Ms. Braxton informing her that the Board of Architecture and

Interior Design had initiated a complaint investigation as to

allegations that she was using the title “interior designer," or

words to that effect, without a valid license. The letter also

informs her that “[y]ou have 20 days to respond in writing or

you may contact me at [phone]. My email address is

[e-mail] .”

27. Ms. Braxton called Mr. Chastain’s office and left two

voice mail messages for him, neither of which he received.

Regardless of the circumstances of Ms. Braxton’s response to the

letter, Mr. Chastain proceeded with the belief that she had not

responded to his letter. 3/

28. Mr. Chastain wrote an Investigative Report which was

provided to the Probable Cause Panel. The report read in

pertinent part:

Alleged Violation: FS481.223(1)(c) use of

the name or title “interior designer”, or

words to that effect, without a valid state

license.

Synopsis: This investigation was based on a

consumer complaint in which it is alleged

that subject appeared on the CBS television

show Big Brother Show link, identifies her

as an interior designer. Complainant

alleges subject does business under the name

Braxton Design and that she has verbally

represented herself to “many individuals”

that she has been involved in the interior

design of many high-profile residential and

commercial buildings. (Exhibit 1)

Subject is not licensed as an interior

designer in Florida, but is licensed as a

real estate sales associate. Braxton design

is not a registered corporation or

fictitious name with the Florida Secretary

of State. (Exhibit 2)

Subject was notified of this investigation

by letter dated January 5, 2007, but failed

to respond. The letter was not returned

undelivered. (Exhibit 3)

Meeting of Probable Cause Panel

29. The Probable Cause Panel met on May 14, 2007, during

which the Braxton case was considered. The packet of materials

which the panel members received regarding the Braxton case

consists of a memorandum to the panel members from the

prosecuting attorney regarding the case; another memorandum from

the prosecuting attorney to someone named Emory Johnson

regarding the case; a draft administrative complaint; a draft

Notice and Order to Cease and Desist; the investigative report

written by Mr. Chastain with three attachments: the complaint

letter with the page from the CBS website and printout showing

Ms. Braxton’s real estate licensure status; copies of licensing

and corporate registration information found by Mr. Chastain;

and the letter written by Mr. Chastain to Ms. Braxton notifying

her of the complaint.

30. The transcript of the Probable Cause Panel concerning

the Braxton case reads as follows:

MR. MINACCI: Tab A-6, Sheryl Lyn Braxton,

Case Number 2007-000968. The subject is

unlicensed and held herself out as an

interior designer on the CBS television show

“Big Brother.” The subject failed to

respond to the investigation.

Recommendation, notice of order to cease and

desist, one count Administrative Complaint

for using the title “interior designer”

without a license.

MR. WIRTZ: Motion to accept counsel’s

recommendation for one count.

THE CHAIR: Second. Discussion. Hearing

none, all those in favor of the motion,

signify by saying aye.

(so signified by aye.)

THE CHAIR: Opposed, like sign.

(No response.)

THE CHAIR: Hearing none, the motion carries

unanimously.

MR. WIRTZ: She’s a big star. She can

afford 5,000 for the count plus costs.

THE CHAIR: Second. Recommendation has been

made and seconded. Discussion? Hearing

none, all those in favor of the

recommendation, signify by saying aye.

(So signified by aye.)

THE CHAIR: Opposed, like sign.

(No response.)

THE CHAIR: Hearing none, the recommendation

carries.

MR. HALL: Shall we send a copy of the

complaint to CBS?

THE CHAIR: If you would like to.

THE [sic] HALL: We certainly can.

MR. Wirtz: I think we should.

31. An Administrative Complaint was filed against Sheryl

Lyn Braxton and Braxton Designers with the Department’s clerk on

May 21, 2007, which began the underlying merits case.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this

proceeding. §§ 57.111 and 120.57, Fla. Stat. (2008)

33. Attorney's fees have been sought by Petitioners in

this matter pursuant to Section 57.111, Florida Statutes, the

Equal Access to Justice Act.

34. The legislative intent for enacting the Equal Access

to Justice Act is provided in Subsection 57.111(2), Florida

Statutes, which provides the following:

(2) The Legislature finds that certain

persons may be deterred from seeking review

of, or defending against, unreasonable

governmental action because of the expense

of civil actions and administrative

proceedings. Because of the greater

resources of the state, the standard for an

award of attorney's fees and costs against

the state should be different from the

standard for an award against a private

litigant. The purpose of this section is to

diminish the deterrent effect of seeking

review of, or defending against,

governmental action by providing in certain

situations an award of attorney's fees and

costs against the state.

35. In pertinent part, Subsection 57.111(4)(a), Florida

Statutes, provides the following:

(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 . (emphasis supplied)

36. Subsection 57.111(3)(c), Florida Statutes, defines a

"prevailing small business party" as follows:

(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 small 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;

2. A settlement has been obtained by the

small business party which is favorable to

the small business party on the majority of

issues which such party raised during the

course of the proceeding; or

3. The state agency has sought a

voluntary dismissal of its complaint.

37. There is no dispute that Braxton prevailed in the

underlying proceeding and that Braxton is a small business party

for purposes of Subsection 57.111(3), Florida Statutes.

38. The term "substantially justified" is defined in

Subsection 57.111(3)(e), Florida Statutes, as follows:

(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.

39. 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 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 actions in

instituting the proceeding were substantially justified or that

special circumstances exist that would make an award of

attorney's fees and costs to Petitioner unjust. Helmy v.

Department of Business and Professional Regulation , 707 So. 2d

366, 368 (Fla. 1st DCA 1998).

40. As there is no dispute that Petitioner is a prevailing

small business party, the Department bears the burden of

establishing that its actions in initiating this proceeding were

substantially justified. “The ‘substantially justified’

standard falls somewhere between the no justiciable issue

standard of Section 57.105 . . . and an automatic award of fees

to a prevailing party." Id.

41. To be substantially justified, the government agency

must have a solid though not necessarily correct basis in fact

and law in its actions initiating the underlying case.

Department of Health & Rehabilitative Services v. S.G. ,

613 So. 2d 1380 (Fla. 1st DCA 1993).

42. The actions in question are the finding of probable

cause and the issuance of the Administrative Complaint.

43. In determining whether there was substantial

justification or a reasonable basis in law and fact, the

undersigned “need only examine the information before the

probable cause panel at the time it found probable cause and

directed the filing of an administrative complaint.” Department

of Health, Board of Physical Therapy Practice v. Cralle , 852 So.

2d 930, 932 (Fla. 1st DCA 2003).

44. In analyzing whether the Department had a solid basis

in law, it is appropriate to examine the law granting authority

to the Department to investigate complaints. Section 455.225,

Florida Statutes, provides the following in pertinent part:

(1)(a) The department, for the boards under

its jurisdiction, shall cause to be

investigated any complaint that is filed

before it if the complaint is in writing,

signed by the complainant, and legally

sufficient. . . . The department may

investigate an anonymous complaint if the

complaint is in writing and is legally

sufficient, if the alleged violation of law

is substantial, and if the department has

reason to believe, after preliminary

inquiry, that the violations alleged in the

complaint are true. (emphasis supplied)

45. While the complaint letter was in writing, the

signature was illegible, and did not contain a telephone number

or address of the complainant. With no way to identify or

contact the complainant, the complaint was anonymous.

46. The alleged violation of law is that Ms. Braxton

violated Section 481.223(1)(c), Florida Statutes, by holding

herself out as an interior designer when she was not licensed.

There is nothing in the record to indicate that the probable

cause panel believed that the allegations amounted to a

substantial violation of the law. No questions were asked of

the investigator or prosecuting attorney. The only comment of

substance concerned a panel member's perceived ability of

Braxton to pay a $5,000 fine and costs.

47. Moreover, there was no preliminary inquiry made as

required by Section 455.225, Florida Statutes. The finding of

probable cause was based on allegations with no supporting

evidence to give any indication that the allegations contained

in the complaint letter were true. The printout from the CBS

website was not created by Ms. Braxton. It was created by a

third party, CBS. There is nothing in the record submitted to

the panel to indicate that CBS was contacted in at least an

attempt to verify that Ms. Braxton submitted anything to CBS

indicating that she was an interior designer. The

investigator’s limited research revealed nothing about a company

called Braxton Designs, which simply does not exist. Further,

there is nothing in the record submitted to the panel regarding

the “many persons” referenced in the complaint letter to

indicate that the violations alleged in the complaint are true.

Even if the complaint is not considered anonymous, "[t]o sustain

a probable cause determination there must be some evidence

considered by the panel that would reasonably indicate that the

violations alleged had indeed occurred." Kibler v. Department

of Professional Regulation , 418 So. 2d 1081 (Fla. 4th DCA 1982).

48. Subsection 57.111(4)(a), Florida Statutes, also

affords the Agency an opportunity to avoid attorney’s fees if

special circumstances exist which would make such an award

unjust. The Department bears the burden of showing that special

circumstances exist. The Department’s response to the Motion

for Attorney’s Fees and Costs did not specifically address the

"special circumstances" prong of Subsection 57.111(4), Florida

Statutes, but the Proposed Final Order did. However, the

Department's argument in this regard is primarily based on

Braxton's response to the Administrative Complaint and

subsequent events all of which took place after the finding or

probable cause.

49. The Department also argues that had Ms. Braxton

responded to the letter from Mr. Chastain, the case may have

been dismissed or resolved without the issuance of an

administrative complaint. However, the analysis herein was

based on whether the decision of the probable cause panel had a

reasonable basis in law and fact. Department of Health v.

Cralle , supra , 852 So. 2d 930, 932. This analysis took into

consideration that the probable cause panel believed that Ms.

Braxton had not responded to Mr. Chastain’s letter.

50. The undersigned finds that based upon the foregoing,

there was not substantial justification or a reasonable basis in

law and fact and no special circumstances existed for the filing

of the Administrative Complaint.

51. Accordingly, Sheryl Lyn Braxton is entitled to an

award of attorney’s fees and costs pursuant to Section 57.111,

Florida Statutes. The amount of fees and costs requested,

$13,201.56, is reasonable.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that Respondents' (Petitioners herein) Supplemental

Motion for Attorney’s Fees and Costs, as amended by the

Supplemental and Second Supplemental Affidavits, is granted.

The Department shall pay to Sheryl Lyn Braxton within 30 days of

the date of this Final Order the sum of $13,201.56 for

attorney’s fees and costs incurred by Petitioners herein

(Respondents in the underlying merits case) in DOAH Case

No. 07-4001.

DONE AND ORDERED this 26th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 26th day of January, 2009.

ENDNOTES

1/ While no business by the name of Braxton Designers exists,

the style of the case reflected Braxton Designers as a party as

it was a named party in the Administrative Complaint in the

underlying merits case.

2/ Braxton filed a Motion for Attorney’s Fees and Costs on

October 19, 2007, in the merits case, Case No. 07-4001.

Petitioners herein were the Respondents and Respondent herein

was designated as the Petitioner in Case No. 07-4001.

3/ There was considerable testimony as to whether Ms. Braxton

called the investigator after receiving his letter. However,

only those facts necessary to reflect what the probable cause

panel considered in its actions are recited here. See Department

of Health v. Cralle , supra , 852 So. 2d 930, 932.

COPIES FURNISHED :

Christopher A. White, Esquire

Reznicsek, Fraser, Hastings,

White & Shaffer, P.A.

4230 Pablo Professional Court, Suite 200

Jacksonville, Florida 32224

David K. Minacci, Esquire

Smith, Thompson, Shaw & Manausa, P.A.

3520 Thomasville Road, Fourth Floor

Tallahassee, Florida 32309

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Nancy S. Terrel, Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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 agency 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.