Thompson v. Department of Health and Rehabilitative Services, 88-482

• Decision Date: 19 October 1988
• Docket Number: No. 88-482,88-482
• Parties: 13 Fla. L. Weekly 2355 Ira W. THOMPSON, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 840

533 So.2d 840

13 Fla. L. Weekly 2355

Ira W. THOMPSON, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 88-482.

District Court of Appeal of Florida,

First District.

Oct. 19, 1988.

Harry L. Witte of Patterson and Traynham, Tallahassee, for appellant.

John R. Perry, Asst. Dist. Legal Counsel, Tallahassee, for appellee.

ZEHMER, Judge.

Ira W. Thompson appeals a final order of the Division of Administrative Hearings denying his petition for attorney's fees filed pursuant to § 57.111, Florida Statutes (1987), the Florida Equal Access to Justice Act. We reject Thompson's contention that a state employee involved in a regulatory proceeding to determine his eligibility for continued employment is entitled to the protection of this act, and affirm.

This action originated in December 1986, when officials of Florida State Hospital determined that, by reason of the proscriptions in section 394.457(6), Florida Statutes (1987), Thompson was ineligible for continued employment in the position of Unit Treatment and Rehabilitation Director of Unit 27 of the Florida State Hospital because of his 1974 conviction for possession of cocaine. A formal hearing was held, at which time Thompson presented evidence of his rehabilitation and full pardon for this conviction. It was determined that Thompson's position of director was not a "caretaker" position within the meaning of section 393.0655, so the Department of Health and Rehabilitative Services was ordered to reinstate Thompson.

Thompson then filed a petition for attorney's fees pursuant to section 57.111. Thompson alleged that he became "a 'prevailing small business party' in [DOAH Case No. 87-0290C] on November 24, 1987, when HRS entered a final order [sustaining his] position." Thompson contended he was a sole proprietor of an unincorporated business within the meaning of the act "because the action initiated against him by the Agency involved his livelihood, and involved the Agency's determination, in its regulatory capacity pursuant to Chapter 393, Florida Statutes, that the Respondent did not meet the requirements necessary to engage in his profession." Thompson also contended that the Agency's actions were "substantially unjustified in law and in fact, and [that] no circumstances exist[ed] that would make the requested award unjust." The hearing officer denied the petition for attorney's fees, finding that Thompson did not meet the criteria outlined in § 57.111(3)(d) to be considered a "small business party."

Section 57.111, Fla.Stat. (1987), provides for an award of attorney's fees from the state to a "small business party" under certain circumstances in order to "diminish the deterrent effect of seeking review of, or defending against, governmental action." This section states in part:

(3)(d) The term "small business party" means:

1.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in...