87-001242F Barber`s Board vs. Felix Robaina Status: Closed DOAH Final Order on Thursday, July 9, 1987.

Summary: Fees awarded when adminISTRATIVE complaint alleged violations not illegal at the time in question.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FELIX ROBAINA, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1242F

)

DIVISION OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

___________________________)

FINAL ORDER

Petitioner, Felix Robaina, has requested attorney's fees and costs as the

prevailing party in an administrative proceeding involving discipline of his

barber's license.

APPEARANCES

The parties are represented in the instant proceeding by:

For Petitioner: Isidro Garcia, Esquire

Florida Rural Legal Services, Inc.

572 Southwest Second Street

Belle Glade, Florida 33430

For Respondent: Lisa M. Bassett, Esquire

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

The parties waived the right to an evidentiary hearing and agreed to submit

the case for disposition on the pleadings. The essential facts of the care are

uncontroverted, and the remaining issue for determination is whether the actions

of the Department of Professional Regulation in Department of Professional

Regulation vs. Felix Robaina, DOAH case number 85-3514,... were substantially

justified or special circumstances exist which would make the awards unjust."

Section 57.111(4)(a) F.S. The issue was defined by the parties in a pre-hearing

conference on April 14, 1987. See Order, dated April 14, 1987.

FINDINGS OF FACT

1. Felix Robaina is a "prevailing small business party", as provided in

section 57.111 F.S.. On March 12, 1987, the Barber's Board filed its Final

Order approving and adopting the Hearing Officer's Recommended Order that Felix

Robaina be found not guilty of the violations alleged and dismissing the

Administrative Complaint.

2. An application for award of attorney's fees and costs was timely filed

with the Division of Administrative Hearings on March 25, 1987.

3. The parties have stipulated that the time spent by Mr. Robaina's

attorney, Isidro Garcia, 19.25 hours, and hourly rate claimed, $100.00, are

reasonable.

4. Costs were expended in the amount of $67.35, reflecting the cost of a

copy of the transcript and expenses of mailing.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to subsection 57.111(3)(b) F.S. and subsection 120.57(1)

F.S..

6. Subsection 57.111(4)(a) F.S., 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

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.

Subsection 57.111(3)(e) provides,

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.

7. The Findings of Fact and Conclusions of Law adopted by the Barber's

Board in case number 85-3514 establish that the actions of the agency were not

"substantially justified."

8. Mr. Robaina was charged with operation of a barber shop without a shop

license. He had a barber's license and occupational licenses, but did not

understand that he was required to also have a shop license. He did not have a

shop license when visited by the DPR investigator, but as soon as she explained

the requirement, he applied for and obtained the necessary license. (See

Findings of Fact. number 4 through 7 in DOAH Case number 85-3514)

9. In order to prove the violation charged in the Administrative

Complaint, DPR had to prove that the violation was "willful or repeated", as

provided in subsection 476.194(2) F.S. (1983).

10. The violation by Felix Robaina was found neither willful nor repeated.

The investigator knew that Mr. Robaina could not speak English and that he was

unaware of the requirement for a separate shop license. Respondent argued that

every day the shop was operated without a license was a separate violation, and

therefore "repeated", but no authority was provided for this proposition. As a

penal statute, Section 476.194 F.S. was strictly construed. (See Finding of

Fact number 6, and Conclusion of Law number 4, DOAH Case number 85-3514)

11. Counsel for Respondent admits that no authority existed for the

argument that Robaina's violation was "repeated". However, she contends that

the novelty of the argument should be considered a "special circumstance"

defined in Federal case law as the good faith advancement of a novel but

creative extension and interpretation of the law. (Response to Motion for

Attorney's Fees and Costs, citing S & H Riggers and Erectors v. Occupational

Safety and Health Review Commission, 672 F. 2nd 426 (U.S. App. Ct. 5th Cir.

1982)). Respondent contends that the argument was justified because the law

governing regulation of barbers and barbershops "... demanded licensure of

barbershop establishments on the one hand, yet provided no language with which

to allege a prohibition." (Response, supra, P. 4) Chapter 476 F.S. was amended,

effective October 1, 1985, to make illegal, and provide penalties for, owning or

operating an unlicensed barbershop. See sections 476.194 and 476.204 F.S.

(1985). The conduct occurred and the complaint was filed prior to the effective

date of the amendment. The effect of the Respondent's "novel" argument is

retroactive application of the amendment. This is inappropriate. Hector v.

Department. of Professional Regulation, Florida Real Estate Commission, 504 So 2

469, (Fla. 1st DCA 1987).

12. Unlike section 57.105 F.S., the "Florida Equal Access to Justice Act",

section 57.111 F.S. does not require complete absence of a justifiable issue of

either law or fact raised by the losing party. It is reasonable, without

Florida case law to assist in interpretation, to place the "substantially

justified" standard somewhere between the section 57.105 F.S. standard and the

automatic award of fees to a prevailing party. William L. McCallister v.

Department of State, Division of Licensing, DOAH number 87-0724F (Final Order

issued June 15, 1987). 1/

13. The issues raised by DPR in the instant case may have been

"justifiable", but, given the version of the law in effect at the time, and the

investigator's clear perception that the alleged violation was unwitting, the

proceeding had no reasonable basis in law or fact at the time that it was

initiated by the state agency. Special circumstances making the award unjust do

not exist.

It is therefore,

ORDERED:

That the Department of Professional Regulation pay attorney's fees and

costs to Felix Robaina in the amount of $1,992.35.

DONE and ORDERED this 9th day of July, 1987 in Tallahassee, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of July, 1987.

ENDNOTE

1/ While Florida's law is too new for meaningful judicial guidance, the Federal

Courts have had several years to grapple with interpretation of a similar

Federal act. For an interesting history of the struggle, see Winold,

Institutionalizing An Experiment: The Extension of the Equal Access to Justice

Act Questions Resolved, Questions Remaining, 14 FLA. ST. U.L. REV. 925 (1987).

COPIES FURNISHED:

Myrtle Aase, Executive Director

Board of Barbers

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Van Poole, Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Isidro Garcia, Esquire

Florida Rural Legal Services, Inc.

572 S. W. Second Street

Belle Glade, Florida 33430

Lisa M. Bassett, Esquire

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

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 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 APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.