(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 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.

(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” means 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.

(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 this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments;

b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million; or

c. An individual whose net worth did not exceed $2 million at the time the action is initiated by a state agency when the action is brought against that individual’s license to engage in the practice or operation of a business, profession, or trade; or

2. Any small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action under s. 72.011 or in any administrative proceeding under that section to contest the legality of any assessment of tax imposed for the sale or use of services as provided in chapter 212, or interest thereon, or penalty therefor.

(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.

(f) The term “state agency” has the meaning described in s. 120.52(1).

(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.

(b)1. To apply for an award under this section, the attorney for the prevailing small business party must submit an itemized affidavit to the court which first conducted the adversarial proceeding in the underlying action, or by electronic means through the division’s website to the Division of Administrative Hearings which shall assign an administrative law judge, in the case of a proceeding pursuant to chapter 120, which affidavit shall reveal the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions, hearings, and appeals in the proceeding.

2. The application for an award of attorney’s fees must be made within 60 days after the date that the small business party becomes a prevailing small business party.

(c) The state agency may oppose the application for the award of attorney’s fees and costs by affidavit.

(d) The court, or the administrative law judge in the case of a proceeding under chapter 120, shall promptly conduct an evidentiary hearing on the application for an award of attorney’s fees and shall issue a judgment, or a final order in the case of an administrative law judge. The final order of an administrative law judge is reviewable in accordance with the provisions of s. 120.68. If the court affirms the award of attorney’s fees and costs in whole or in part, it may, in its discretion, award additional attorney’s fees and costs for the appeal.

1. No award of attorney’s fees and costs shall be made in any case in which the state agency was a nominal party.

2. No award of attorney’s fees and costs for an action initiated by a state agency shall exceed $50,000.

(5) If the state agency fails to tender payment of the award of attorney’s fees and costs within 30 days after the date that the order or judgment becomes final, the prevailing small business party may petition the circuit court where the subject matter of the underlying action arose for enforcement of the award by writ of mandamus, including additional attorney’s fees and costs incurred for issuance of the writ.

(6) This section does not apply to any proceeding involving the establishment of a rate or rule or to any action sounding in tort.

History.—ss. 1, 2, 3, 4, 5, 6, ch. 84-78; s. 43, ch. 87-6; s. 7, ch. 87-224; s. 21, ch. 92-315; s. 8, ch. 95-196; s. 6, ch. 96-410; s. 8, ch. 99-353; s. 6, ch. 2000-336; s. 10, ch. 2003-94; s. 2, ch. 2006-82; s. 9, ch. 2011-208.