Administrative Hearing Commission

Richard Maseles, Esquire

Private investigator who successfully challenged disciplinary action before AHC entitled to attorney fee award, but only for AHC action, and only at statutory rate. Board of Private Investigation Examiners v. Gurley, No. 12AC-CC00555 (12th Cir. Ct., Cole County, January 13, 2013), Betem, J.

The AHC awarded Gurley $30,907 in attorney’s fees and $1,262.50 in costs as a prevailing party in his action against the Board. The Board contested the award.

The AHC’s award was affirmed in part and denied in part. The court held that the Board’s position in bringing its action against Gurley was not substantially justified merely because the rule under which it brought such action was duly promulgated and had never been previously challenged. But the court also held that it was erroneous to award fees for any proceedings other than those before the AHC, and there was nothing in the record to support an attorney fee rate more than the $75/hour statutory cap of § 536.085(4). Therefore, the attorney fee award was reduced to $3,307.50.

Residential cooperative and utility provider entitled to refund of sales tax for utilities provided to common area of cooperative. 801 Skinker Blvd. Corp. v. Director of Revenue, No. SC 92401 (Mo. Sup. Ct., January 8, 2013), Fischer, J.

Electric and natural gas utilities supplied those utilities to 801 Skinker, a residential cooperative in St. Louis. 801 Skinker and the utilities petitioned the Director for a refund of sales tax paid for those utilities supplied to the common area, which was denied. The AHC denied the refund, and the cooperative and the utilities appealed.

Held: Reversed. The AHC’s decision was reversed. The Court held that under a plain reading of § 144.030.2(23), the legislature intended for utilities supplied to common areas to be exempt from sales tax.