10-003325FC Todd P. Boetzel And Boetzel Landscaping, Inc. vs. Department Of Business And Professional Regulation Status: Closed DOAH Final Order on Thursday, February 10, 2011.

Summary: Department had insufficient information to find probable cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TODD P. BOETZEL AND BOETZEL )

LANDSCAPING, INC. , )

)

Petitioners , )

)

vs. ) Case No. 10 - 3325FC

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Respondent . )

)

FINAL ORDER

Pursuant to stipulation, this cause came on for final

disposition by Susan B. Harrell, a designated Administrative Law

Judge of the Division of Administrative Hearings (DOAH), upon a

stipulated evidentiary record and P ropose d F inal O rders by the

parties.

A PPEARANCES

For Petitioner s : Gregory Turner Elliott, Esquire

Elliott - Berger, P.A.

10225 Ulmerton Road, Suite 4A

Largo, Florida 33771

For Respondent: Maura M. Bolivar, Esqu ire

Department of Business and

Professional Regulation

1940 North Monroe Street Suite 42

Tallahassee, Florida 32399 - 2202

STATEMET OF THE ISSUE

The issue is whether Petitioners are entitled to an award

of attorney's fees and costs pursuant to section 57.111, Florida

Statutes (200 7 ). 1/

PRELIMINARY STATEMENT

On December 22, 2008, Respondent, Department of Business

and Professional Regulation (Department), issued a Final Order,

BPR - 2008 - 09207, finding that Petitioners, Todd Boetzel and

Boetzel Landscaping, Inc. (collectively referred to as Boetzel),

were not guilty of the unlicensed practice of electrical

contracting and landscape architecture and adopting the

Rec ommended Order of Administrative Law Judge Daniel Manry in

DOAH Case No. 08 - 1603.

On December 17, 2008, Boetzel filed a motion , seeking

attorney's fees and costs pursuant to section 57.011 in DOAH

Case No. 08 - 1603. The case relating to the request for

att orney's fees and costs was assigned DOAH Case No. 08 - 5778.

In its response to the Initial Order in DOAH Case No. 08 -

5778, the Department did not dispute that the fees and costs

submitted by Boetzel were reasonable ; that Boetzel was the

prevailing party in the underlying proceeding; that the

Department was not a nominal party; and that there were no

circumstances or facts that would make an award of attorney's

fees and cost unjust. The Department maintained that it was

substantially justified in bringing t he underlying action.

Boetzel requested an evidentiary hearing. The

A dministrative L aw J udge entered a Final Order , denying the

motion for attorney's fees and costs without giving Boetzel an

evidentiary hearing. Boetzel appealed the Final Order. The

Sec ond District Court of Appeal reversed the Final Order and

remanded the case to DOAH for further proceedings in accordance

with the court's opinion.

The case on remand was assigned DOAH Case No. 10 - 3325FC. A

pre - hearing conference was held by telephonic co nference call on

October 21, 2010. The parties agreed that an evidentiary

hearing would not be necessary and that the parties would submit

a stipulated evidentiary record.

On November 1, 2010, a stipulated record consisting of

Volumes I through IV was fil ed. On November 1, 2010, an Agreed

Motion to Supplement the Record was filed. The motion is hereby

granted, and Volume V is deemed to be part of the stipulated

record.

Both parties have filed P roposed F inal O rders, which have

been considered in the pr epa ration of this Final Order.

FINDINGS OF FACT

1. On February 4, 2008, the Department filed a two - count

Administrative Complaint against Boetzel , alleging that Boetzel

violated sections 481.323(1) and 489.531(1), Florida Statutes

(2006) , in that Boetzel engaged in the unlicensed practice of

landscape architecture and electrical contracting.

2. The following pertinent facts were alleged in the

Administrative Complaint:

At no time material hereto were

Respondents the holders of valid licenses to

engage in the practice of landscape

architecture pursuant to Chapter 481,

Part II, Florida Statutes.

At no material time hereto were

Respondents the holders of valid licenses to

engage in the practice of electrical

contracting pursuant to Ch apter 489,

Part II, Florida Statutes.

At all times material hereto, Respondent

TODD P. BOETZEL was the Registered Agent and

Officer/Director/President of Respondent

BOETZEL LANDSCAPING, INC.

Respondents' last known address is 2534

22 nd Avenue North, St. Petersburg, Florida

33713.

On or about June 5, 2007 Respondents

submitted an invoice to Southern Cross

Construction for site preparation, including

grading, placement of plantings, and

installation of an irrigation system at a

construction site in R eddington [sic] Beach,

Florida.

The aforementioned invoice also included

electrical contracting work.

On or about June 19, 2007 Respondent

Todd P. Boetzel signed a sworn Claim of Lien

indicating that he provided "Landscaping,

Sod, and Irrigation" for the aforementioned

project.

Respondent was paid a deposit of $8,000.00

by che ck number 1274 on May 25, 2007.

3. Boetzel requested an administrative hearing, and the

case was referred to DOAH. A final hearing was held, and the

A dministrative L aw J udg e entered a Recommended Order ,

recommending that a final order be entered finding that Boetzel

did not engage in the unlicensed practice of landscape

architectu re and electrical contracting.

4. On October 28, 2008, the Department filed a Final

Order, whic h adopted the Findings of Fact and Conclusions of Law

in the Recommended Order and found that Boetzel was not guilty

of engaging in the unlicensed practice of landscape architecture

and electrical contracting.

5. On November 17, 2008, Boetzel filed a Veri fied Petition

and Affidavit for Attorney's Fees and Costs under Florida

Statutes § 57.111 (2006). The petition included an Affidavit

for Attorney's Fees executed by the attorney for Boetzel ,

stating that 102.2 hours of attorney time had been rendered in

t he case and that the usual rate was $300.00 per hour. The

total amount claimed for attorney's fees is $30,660.00. The

petition also included a Bill of Costs executed by Todd P.

Boetzel, which included costs for services of process and

transcripts. The t otal amount claimed for costs is $1,327.30.

6. On December 8, 2008, the Department filed Respondent's

Answer to Initial Order. The answer stated:

The Department does not dispute the

reasonableness of the fees and costs

submitted by Petitioner.

The Department does not dispute that

Petitioner [sic] were a prevailing party in

the underlying proceeding.

The Department does not dispute that

Petitioner [sic] are a small business party.

The Department does not dispute that it

was non - nominal party at the underlying

proceeding.

The Department knows of no circumstances

or facts that would make an award of

attorney's fees to Petitioner unjust in the

present case.

* * *

The Department alleges that its actions in

prosecuting this matter were substantially

justified, thereby negating Petitioners'

entitlement to attorneys' fees.

The only disputed issue in the instant case is whether the

Department was substantially justified in issuing the

Administrative Complaint.

7. In February 2008, Laura P. Gaffney (Ms. Gaffney) was

the chief attorney in the unlicensed activity section of the

Department. Her primary responsibility was to review incoming

cases and determine whether the case s should be closed out,

whether additional investigation was needed, or whether charges

should be filed in the form of an administrative complaint.

Ms. Gaffney had been delegated the authority by the Secretary of

the Department to make probable cause findi ngs on cases dealing

with unlicensed activity. 2/

8. In making her determination of whether there was

probable cause to file an administrative complaint, Ms. Gaffney

considered the investigative report dated December 29, 2007, and

a supplemental report dat ed January 19, 2008.

9. The investigative file included a complaint filed by

Steve Petrozak (Mr. Petrozak) , a licensed general contractor and

manager of Southern Cross Construction, alleging that Boetzel

had engaged in the unlicensed practice of landscape

architecture. The complaint described the work performed by

Boetzel as "landscaping, lawn irrigation, sod."

10. The complaint filed by Mr. Petrozak included an

invoice from Boetzel for the work performed. The invoice was

for the planting of various pla nts, site preparation,

irrigation, installation of pine bark , and lighting. The site

preparation was described in the invoice as follows: "Sodcut

areas to be planted, remove unwanted vegetation and haul away,

prepare areas for planting, stump grind. Gra de entire property

and create swale down left side." The lighting work was

described in the invoice as follows: "Install Low Voltage

Halogen Lights, uplight 3 foxtail palms, 1 adonidia palm

and 2 lights on mailbox, with one automatic transformer.

Addit ional transformer."

11. The investigative file also included a letter dated

November 7, 2007, from Gregory Elliott, an attorney representing

Boetzel. Mr. Elliott stated that Boetzel was not in the

business of landscape architecture, but was in the busine ss of

selling and installing landscape materials for residential or

commercial use. Mr. Elliott described Boetzel as a laborer or

materialman working under the general contractor.

12. Ms. Gaffney felt that the "single most important part

of this investig ative report" was the sworn claim of lien filed

by Boetzel , which stated that Boetzel had furnished "labor,

services and material consisting of Landscaping, Sod, and

Irrigation" at the property situated at 511 161st Avenue,

Red ington Beach, Florida.

13. M s. Gaffney assumed that because the work performed by

Boetzel included grading the property and creating a swale that

Boe t zel had set the grades for the grading and had designed the

swale. The investigative report does not contain sufficient

information t o make that determination. Such information could

easily have been obtained from Mr. Petrozak, but the

investigator did not get the information nor did Ms. Gaffney

request the information.

14. Ms. Gaffney assumed that because transformers were

being pro vided and that halogen lights were being installed that

Boet z el hardwired the installation of the lights and

transformers. She assumed that because lights were being placed

near a mailbox that the work would entail more than plugging in

the lights. The i nformation contained in the investigation file

is insufficient to supports such assumptions. The investigator

could have obtained the necessary information from Mr. Petrozak,

but did not do so nor did Ms. Gaffney request the information.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 57.011 and 120.57, Florida

Statutes (2010).

16. Section 57.011(4)(a) provides:

Unless otherwise provided b y 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 substanti ally justified or

special circumstances exist which would make

the award unjust.

17. The Department has conceded that Boetzel is a

prevailing small business party, that the fees and costs sought

are reasonable, and that there are no special circumstances

which would make the award of fees and costs unjust. Thus, the

remaining issue is whether the Department's filing of the

Administrative Complaint was justified. The Department has the

burden to show that its actions initiating the proceeding were

justif ied. Helmy v. Dep't of Bus. & Prof'l Regulation , 707 So.

2d 366, 368 (Fla. 1st DCA 1998); Gentele v. Dep't of Bus. &

Prof'l Regulation , 513 So. 2d 672 (Fla. 1st DCA 1987).

18. A proceeding is deemed substantially justified if

there was a reasonable basis in fact and law at the time the

proceeding was initiated by a state agency. In Dep ' t of Health

v. Cralle , 852 So. 2d 930, 932 (Fla. 1st DCA 2003) (citing Fish

v. Dep't of Health, Bd. of Dentistry , 825 So. 2d 421 (Fla. 4th

DCA 2002)), a temporal limitation was established on the

analysis of whether an agency's action was substantially

justified:

In resolving whether there was a substantial

justification or a reasonable basis in law

and fact for filing an administrative

complaint, "one need only ex amine the

information before the probable cause panel

at the time it found probable cause and

directed the filing of an administrative

complaint."

See also Ag . for Health Care Admin. v. Gonzalez , 657 So. 2d 56

(Fla. 1st DCA 1995) (proper inquiry is whethe r evidence before

the probable cause panel was sufficient for institution of

disciplinary action).

19. A finding of probable cause will be sustained when

there is some evidence considered by the finder of probable

cause that would "reasonably indicate th at the violations

alleged had indeed occurred." Kibler v. Dep't of Prof'l

Regulation , 418 So. 2d 1081, 1084 (Fla. 4th DCA 1982). In other

words, agency action is substantially justified in cases where

the finder of probable cause had evidence before it t hat would

constitute prima facie proof of a violation if credited at the

final hearing.

20. As noted in Dep ' t of Prof essional Regulation, Div . of

Real Estate v. Toledo Realty, Inc. , 549 So. 2d 715, 719 (Fla.

1st DCA 1989), the investigative report may be the "most

substantial and relevant evidence necessary to assist the panel

in rendering a decision of whether probable cause exists for the

issuance of a formal complaint."

21. Section 481.303(6) provides:

( 6) "Landscape architecture" means

professional s ervices, including, but not

limited to, the following:

(a) Consultation, investigation, research,

planning, design, preparation of drawings,

specifications, contract documents and

reports, responsible construction

supervision, or landscape management in

connection with the planning and development

of land and incidental water areas,

including the use of Xeriscape as defined in

s. 373.185, where, and to the extent that,

the dominant purpose of such services or

creative works is the preservation,

conservati on, enhancement, or determination

of proper land uses, natural land features,

ground cover and plantings, or nat uralistic

and aesthetic values;

(b) The determination of settings, grounds,

and approaches for and the siting of

buildings and structures, out doo r areas, or

other improvements;

(c) The setting of grades, shaping and

contouring of land and water forms,

determination of drainage, and provision for

storm drainage and irrigation systems where

such systems are necessary to th e purposes

outlined her ein; and

(d) The design of such tangible objects and

features as are necessary to the purpose

outlined herein

22. Section 489.505(12) defines "electrical contractor" as

follows:

[A] person who conducts business in the

electrical trade field and who has the

experience, knowledge, and skill to install,

repair, alter, add to, or design, in

compliance with law, electrical wiring,

fixtures, appliances, apparatus, raceways,

conduit, or any part thereof, which

generates, transmits, transforms, or

utilizes elec trical energy in any form,

including the electrical installations and

systems within plants and substations, all

in compliance with applicable plans,

specifications, codes, laws, and

regulations. The term means any person,

firm, or corporation that engage s in the

business of electrical contracting under an

express or implied contract; or that

undertakes, offers to undertake, purports to

have the capacity to undertake, or submits a

bid to engage in the business of electrical

contracting; or that does itself or by or

through others engage in the business of

electrical contracting.

23. Using the definition of landscape architecture and

electrical contractor contained in sections 481.303(6) and

489.505(12), respectively, the information in the investigative

report was insufficient to make a determination that Boetzel was

practicing landscape architecture or performing electrical

contracting without a license. Therefore, the Department was

not substantially justified in filing the Administrative

Complaint.

O RDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED Todd P. Boetzel and Boetzel Landscaping,

Inc., be awarded $30,660.00 in attorney's fees and $1,327.30 in

costs.

DONE AND ORDERED this 10 th day of February , 2011 , in

Tallahas see, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10 th day of February , 2011 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 version.

2/ Section 455.225(4) provides that a determination of probable

cause may be made by the probable cause panel of a board or by

the Department as appropriate. The Board of Landscape

Architecture has authority to discipline registered landscape

architects, a nd the Electrical Contractor Licensing Board has

the authority to discipline applicants, contractors, or business

organizations for which the contractor is the primary qualifying

agent or secondary qualifying agent. §§ 481.325(3) and

489.533(2), Fla. Stat . The boards do not have authority to

discipline persons for unlicensed activity. The Department

disciplines persons for unlicensed activity and makes the

probable cause determination of whether an administrative

complaint should be filed. §§ 455.225(4) and 455.228, Fla.

Stat.

COPIES FURNISHED :

Gregory Turner Elliott, Esquire

Elliott - Berger, P.A.

10225 Ulmerton Road, Suite 4A

Largo, Florida 33771

Maura M. Bolivar, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Stree t Suite 42

Tallahassee, Florida 32399 - 2202

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Amy Toman, Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Charlie Liem, Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

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 Ap pellate 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 C ourt 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.