10-001187F Wright And Young Funeral Home, Inc. vs. Department Of Financial Services, Board Of Funeral, Cemetery, And Consumer Services Status: Closed DOAH Final Order on Friday, June 11, 2010.

Summary: Small business did not prevail based on an order closing file upon petition to relinquish jurisdiction with leave to re-file while agency conducted discovery and amended administrative complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WRIGHT AND YOUNG FUNERAL HOME, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 10-1187F

)

DEPARTMENT OF FINANCIAL SERVICES, BOARD OF FUNERAL, )

CEMETERY, AND CONSUMER )

SERVICES, )

)

)

Respondent. )

) )

KIMBERLY WHITE, )

)

Petitioner, )

)

vs. ) Case No. 10-1188F

)

DEPARTMENT OF FINANCIAL )

SERVICES, BOARD OF FUNERAL, )

CEMETERY, AND CONSUMER )

SERVICES, )

)

Respondent. )

FINAL ORDER

Administrative Law Judge Eleanor M. Hunter held a hearing

in this case on April 20, 2010, at the Division of

Administrative Hearings (DOAH) in Tallahassee, Florida.

APPEARANCES

For Petitioner: Danielle A. Cohen, Esquire

Christopher Chestnut, Esquire

The Chestnut Law Firm

1000 5th Street, Suite 200

Miami Beach, Florida 33139

For Respondent: James A. Bossart, Esquire

Mary K. Surles, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue is whether Petitioners are entitled to costs and

attorney's fees pursuant to Sections 57.111 and 57.041, Florida

Statutes (2009).

PRELIMINARY STATEMENT

Petitioners in these cases were the Respondents in

consolidated DOAH Case Nos. 09-4918PL and 09-4919PL. On

March 5, 2010, they filed a Motion for Attorney's fees and costs

in the underlying cases that resulted in the opening of

DOAH Case Nos. 10-1187F and 10-1188F.

On March 17, 2010, Respondent in the instant cases

(Petitioner in the underlying cases) filed a Response [in

opposition] to the Motion for Attorney's Fees and Costs.

The cases were consolidated and set for an evidentiary

hearing that was held on April 20, 2010. The Transcript of the

proceedings was filed on May 14, 2010. Proposed Recommended

Final Orders were filed on behalf of Respondent on May 14, 2010,

and on behalf of Petitioners on May 17, 2010. Unless otherwise

indicated, references to Florida Statutes are to the 2009

edition.

FINDINGS OF FACT

Administrative Proceedings

1. On September 10, 2009, Respondent, Department of

Financial Services, Board of Funeral, Cemetary, and Consumer

Services ("Respondent" or "the Department") referred

Administrative Complaints against Petitioners, Wright and Young

Funeral Home, Inc., and Kimberly White, to DOAH to conduct a

hearing. The cases were consolidated and set for hearing on

December 2, 2009.

2. On October 30, 2009, the parties filed a Joint Motion

for Continuance and the case was continued and rescheduled for

January 6, 2010.

3. On December 23, 2009, the Department filed a Motion for

Continuance asserting, in part, the need to raise additional

issues with a probable cause panel that could have led to a

motion for leave to amend the Administrative Complaint.

Petitioners opposed the motion, which was, nevertheless, granted

after a motion hearing was held. The case was rescheduled for

March 10 and 12, 2010.

4. On January 22, 2010, the Department filed another

Motion for Continuance noting that the probable cause panel

would meet on January 25, 2010, to consider proposed amendments

to the administrative complaints and that, if approved, a motion

for leave to amend would be filed that same day. Counsel for

the Department, also gave notice that she would be unavailable

to conduct discovery or proceed to hearing in February and March

due to medical reasons. Because the case had been pending at

DOAH for more than four months, counsel for the Department was

asked to consider transferring the case to another attorney in

the Department who could be available for a hearing in March.

5. On January 25, 2010, the Department filed a Motion for

Enlargement of Time to File a Motion for Leave to Amend

Administrative Complaint citing the need for two extra days to

get approval within the Department to file the proposed

amendments to the Administrative Complaint. Petitioners filed

their Opposition to Third Motion for Continuance, Opposition to

Enlargement to file Motion for Leave to Amend Complaints, and

Motion to Transfer Case to Another Attorney. The Department was

granted, on January 26, 2010, a two-day extension to January 28,

2010, to file its Motion for Leave to File Second Amended

Complaint. That Motion was filed on January 27, 2010.

6. During a pre-hearing status conference on February 15,

2010, counsel for the Department reported that she had been

unable to transfer the case to any other Department attorneys

due to their workloads. She agreed to file, and did file, an

Unopposed Motion to Relinquish Jurisdiction that same day. The

Motion was granted and the DOAH files were closed on

February 16, 2010.

Probable Cause Panel

7. The probable cause panel that approved the filing of

the initial Administrative Complaint met on June 10, 2009. The

Administrative Complaint was filed in the Department on June 26,

2009.

8. On January 25, 2010, counsel for the Department

reported to the panel that based on the facts gathered,

presumably through further investigations and discovery,

Petitioner, Kimberly White, as the responsible funeral director

in charge, had not violated Subsections 497.385(2)(f),

497.152(9)(b), and 497.152(9)(e), Florida Statutes, but that

probable cause existed to believe that she had violated

Subsection 497.152(9)(f), Florida Statutes.

9. With regard to the previous charges against Petitioner

Wright and Young Funeral Home, Inc., counsel for the Department

reported that based on the facts gathered, it had not violated

that probable cause existed to believe that it had violated

10. The panel found probable cause to amend the

Administrative Complaints as requested by counsel for the

Department.

11. The information that served as the basis for the

remaining charges, as amended, was received from Broward County

Circuit Judge Mark A. Speiser. Judge Speiser wrote the

Department, on April 3, 2009, after presiding in a guardianship

proceeding for a six and one-half-year-old minor child, over a

hearing on an Emergency Petition to Pay Funeral Expenses of the

ward's deceased mother. During the proceeding, Judge Speiser

determined that Terry Wright, who identified himself as the CEO

of Wright and Young Funeral Home, Inc., falsely represented that

an expense associated with the mother's funeral services were

$7,450, but that the actual cost was $350.

12. Judge Speiser's letter to the Department concluded as

follows:

The absolute lie and false statement to this

Court in a legal proceeding is intolerable

and should not go unpunished. As the State

Agency charged with oversight of this

industry, I urge you to extend this matter

your utmost and immediate attention. To

allow financial exploitation of the

decedent's legacy to her surviving 6 and

one-half-year-old child by a business that

supposedly is in existence to reasonably and

fairly serve individuals and families in

their time of grief and sorrow is utterly

impermissible and shameful.

13. The Department's investigator interviewed witnesses,

reviewed invoices, and received affidavits that supported the

allegations made by Judge Speiser. While Petitioners questioned

whether any violation occurred for marking up fees, that is an

issue for consideration when, and if, there is a final

evidentiary hearing on the pending charges.

Small Business

14. The parties did not contest the status of Petitioners

as a small business and its funeral director in charge.

Attorney's Fees and Cost

15. The Department did not question the reasonableness and

accuracy of Petitioners' affidavit in support of the Motion that

shows attorney's fees in the amount of $17,220 and costs in the

amount of $1,079 expended in defense of the complaint against

Petitioners, except to the extent that fees and costs for

maintaining this action should not have been included.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this action in accordance

with Sections 120.569 and 120.57(1), Florida Statutes (2009).

17. In this case, Petitioners seek an award of attorney's

fees and costs pursuant to Sections 57.111 and 57.041(1),

Florida Statutes (2009). Section 57.111, Florida Statutes,

provides as follows:

(1) This section may be cited as the

"Florida Equal Access to Justice Act."

(2) The Legislature finds that certain

persons may be deterred from seeking review

of, or defending against, unreasonable

governmental action 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 against, governmental

action by providing in certain situations an

award of attorney's fees and costs against

the state.

(3) As used in this Section:

(a) The term "attorney's 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

that the state agency:

1. Filed the first pleading in any

state or federal 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 clear

point of entry after some recognizable event

in the investigatory or other free-form

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 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.

(Emphasis added)

18. Similarly, Subsection 57.041(1), Florida Statutes,

provides for the recovery of costs as follows:

(1) The party recovering judgment shall

recover all his or her legal costs and

charges which shall be included in the

judgment; but this section does not apply to

executors or administrators in actions when

they are not liable for costs.

19. The burden of proof in these proceedings is a shifting

one. The general rule is that the party asserting the

affirmative of an issue bears the burden as to that issue.

Florida Department of Transportation v. J.W.C. Company , 396 So.

2d 778 (Fla. 1st DCA 1981). Each Petitioner is required to show

that it is a small business, as defined by Section 57.111; that

it is the prevailing party; and that the underlying adjudicatory

process was initiated by the state agency. Once this threshold

is met, the burden is then shifted to the agency to show that

its action in initiating the agency proceeding was

"substantially justified." Helmy v. Department of Business and

Professional Regulation , 707 So. 2d 366, (Fla. 1st DCA 1998);

Gentele v. Department of Business and Professional Regulation ,

513 So. 2d 672 (Fla. 1st DCA 1987.

20. Petitioners are small business parties within the

meaning of Section 57.111(3)(d).

21. There is no question that a state agency, the

Department, initiated the administrative proceeding pursuant to

Chapter 120, Florida Statutes.

22. Petitioners must prove that they have prevailed as

defined in Section 57.111(3)(c). To do so, in the absence of

any evidence of a settlement, Petitioners must demonstrate

either one of the following: (1) that a final judgment or order

has been entered in their favor and that such judgment or order

has not been reversed on appeal or the time for seeking judicial

review of the judgment or order has expired; or (2) that the

agency has sought a voluntary dismissal of its complaint.

23. Petitioners contend that the Order Closing File in

this case is a final order. That view is not supported by the

description of a final order in Hill v. Division of Retirement ,

687 So. 2d 1376 (Fla. 1st DCA 1997), which is as follows:

The final order in a proceeding which

affects substantial interests must be in

writing and include findings of fact, if

any, and conclusions of law separately

stated." § 120.569(2)(j), Fla. Stat. (Supp.

1996). An agency has not rendered a final

order until it is "filed with the agency

clerk." § 120.52(7), Fla. Stat. (Supp.

1996); Charter Medical-Southeast, Inc. v.

State, Dep't of Health and Rehabilitative

Servs. , 495 So. 2d 759 (Fla. 1st DCA 1986).

Rendition is similarly defined by Florida

Rule of Appellate Procedure 9.020(h). See

Franchi v. Florida Dep't of Commerce, Div.

of Employment Sec., Bd. of Review , 375 So.

2d 1154 (Fla. 4th DCA 1979). "The clerk

shall indicate the date of filing on the

order." § 120.52(7), Fla. Stat. (Supp.

1996).

Final agency action may take the form of an

order whether "affirmative, negative,

injunctive, or declaratory" in tenor.

§ 120.52(7), Fla. Stat. (Supp. 1996). A

final agency order may articulate

jurisdictional boundaries; require a party

to cease or desist; grant, suspend, or

revoke a license; impose an administrative

penalty; deny an evidentiary hearing; or

deny substantive relief of various kinds. A

final order may or may not dismiss a

petition for hearing or some other pleading.

Its finality depends on whether it has

brought the administrative adjudicative

process to a close. "The test to determine

whether an order is final or interlocutory

in nature is whether the case is disposed of

by the order . . . ." Prime Orlando

Properties, Inc., v. Department of Bus.

Regulation, Division of Land Sales ,

Condominiums, and Mobile Homes , 502 So. 2d

456, 459 (Fla. 1st DCA 1986). Accord

Middlebrooks v. St. Johns River Water

Management Dist. , 529 So. 2d 1167 (Fla. 5th

DCA 1988); Peterson v. State Dep't of Envtl.

Regulation , 350 So. 2d 544 (Fla. 1st DCA

1977).

24. Although jurisdiction has been relinquished, there is

no evidence that Respondent has entered a final order. On the

contrary, it appears that charges are still pending in an

amended administrative complaint.

25. Petitioners rely on the decision in Nicolitz v. Board

of Opticianry , 609 So. 2d 92 (Fla. 1st DCA 1992) to assert that

an order closing file upon consideration of a motion to

relinquish jurisdiction is tantamount to an order closing file

after a voluntary dismissal. In Nicolitz , however, the hearing

officer denied a motion to relinquish jurisdiction and was then

divested of jurisdiction by the subsequent filing of a voluntary

dismissal. Id. at 93.

26. Finally, while not necessary to the disposition of

this case but argued by the parties, it is worth noting that the

actions of the probable cause panel in response to concerns

raised by Judge Speiser and the subsequent investigation were

substantially justified. See Department of Health v. Thomas ,

890 So. 2d 400 (Fla. 1st DCA 2004) (Department was free to

believe the opinion of one expert despite the existence of two

expert opinions to the contrary because a decision to prosecute

that turns on a credibility assessment has a reasonable basis in

fact and law).

27. It is not essential for the state agency to adhere to

prosecuting every count in its initial administrative complaint

in order to demonstrate a substantial justification for the

prosecution and to defeat a motion for fees and costs. For

example, in Gentele v. Dep't of Prof'l Regulation, Bd. of

Optometry , 513 So. 2d 672, 673 (Fla. 1st DCA 1987), Count I of

the administrative complaint was ultimately sustained, Count II

was dismissed, and appellant's license was suspended as to the

violations alleged in Count I. The court, in Gentele ,

nevertheless held that:

DPR's determination to prosecute essentially

turned on a credibility assessment of the

investigator's testimony and, as such, had a

reasonable basis in law and fact. See Temp

Tech Industries, Inc. v. NLRB , 756 F.2d 586

(7th Cir. 1985) (decision to litigate an

issue that turned on a credibility

assessment was not itself unreasonable);

Natchez Coca-Cola Bottling Co. v. NLRB , 750

F.2d 1350 (5th Cir. 1985) (lack of

credibility of witness' testimony was not so

clear that no reasonable general counsel

would have prosecuted the claim).

28. In sum, Petitioners have demonstrated they are small

business parties, but have not demonstrated that they are

prevailing parties by virtue of having received a final judgment

or order in their favor, obtaining a settlement in their favor,

or by having the Department seek a voluntary dismissal of the

complaint against them.

CONCLUSION

Based on the foregoing, Petitioners' Petition for

Attorney's fees and costs is dismissed.

DONE AND ORDERED this 11th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of June, 2010.

COPIES FURNISHED :

Doug Shropshire, Director

Bureau of Funeral and Cemetery Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399-0361

Robert Beitler, General Counsel

Department of Financial Services

200 East Gaines Street, Suite 526

Tallahassee, Florida 32399-0350

James A. Bossart, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

Danielle A. Cohen, Esquire

The Chestnut Law Firm

1000 5th Street, Suite 200

Miami Beach, Florida 33139

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 Administrative 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 Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.