STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOOKER CREEK PRESERVATION, INC., ) and MANASOTA 88, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 87-3007F

) AGRICO CHEMICAL COMPANY and ) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

FINAL ORDER

A hearing was held on November 30, 1987 in Tallahassee, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, to consider Motions to Dismiss filed herein by Agrico Chemical Company (Agrico) and the Department of Environmental Regulation (Department), as well as the Response to the Motions to Dismiss filed by Booker Creek Preservation, Inc. and Manasota 88, Inc. (Petitioners).

The parties were represented by:

Petitioners: Peter Belmont, Esquire

511 31st Avenue North

St. Petersburg, Florida 33704

Respondents: Joseph Landers, Jr., Esquire (Agrico) Richard Lotspeich, Esquire

Post Office Box 271 Tallahassee, Florida 32302

(Department) Richard T. Donelan, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

In this case Petitioners are seeking attorneys fees and costs under Section 57.111, Florida Statutes, as a result of final agency action taken in the DOAH Case Number 86-3618, an earlier case involving these same parties. Official recognition was taken of DOAH Case Number 86-3618, and final agency action resulting therefrom.

FINDINGS OF FACT

For purposes of the Motions to Dismiss filed by Agrico and the Department, the following findings of fact are based upon the pleadings in this case, matters to which the parties have stipulated, and DOAH Case Number 86-3618, as well as final agency action resulting therefrom:

1. On or about August 26, 1986, Petitioners filed with the Department a petition for formal administrative proceeding which challenged the dredge and fill permit that the Department intended to issue to Agrico. The Department transmitted this matter to the Division of Administrative Hearings for hearing, and it was assigned to the undersigned Hearing Officer as DOAH Case Number 86- 3618.

   
   

2. Petitioners relied upon Sections 120.57(1) and 403.412(5), Florida Statutes, to "initiate" DOAH Case Number 86-3618 as is clearly set forth in paragraph 20 of their Petition filed in that case. In their Motion for Fees and Costs at paragraph 3, Petitioners further allege, and thereby concede, that they "initiated the above styled proceeding (DOAH Case Number 86-3618)."

   
   

3. A final hearing was scheduled to begin on April 28, 1987 in DOAH Case Number 86-3618. However by letter to the Department dated March 2, 1987, Agrico voluntarily withdrew its application for a dredge and fill permit which was the subject of that case. Thereafter, a telephone conference call was held on March 17, 1987, following which an Order Closing File was filed in DOAH Case Number

   86-3618 on that same date, and jurisdiction was relinquished to the Department.

   
   

4. The Final Order in Case Number 86-3618 was entered by the Department on May 18, 1987 which states:

   
   

   Upon consideration, it is ORDERED that

   the withdrawal of permit application number 53-1093999 is GRANTED with prejudice to further Department consideration of the application, but without prejudice to the future submission of another dredge and fill application covering the same tract of land covered by application number

   53-1093999.

   The withdrawal of permit application

   number 53-1093999 divests the Department of jurisdiction to proceed with consideration of (Booker Creek and Manasota's) petition. Humana of Florida, Inc., v. Department of Health and Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986).

   Accordingly, the above-captioned case (DOAH Case Number 86-3618) is DISMISSED as moot.

   
   

5. On July 16, 1987, Petitioners timely filed their Motion for Fees and Costs which was assigned to the undersigned Hearing Officer and given DOAH Case Number 87-3007F.

   
   

6. Petitioners are each incorporated as not-for-profit corporations within the State of Florida, with principal off ices in Florida, and each having less than twenty-five full time employees, as well as a net worth of not more than two million dollars.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings as jurisdiction over the award of attorney's fees and costs for matters arising from Chapter 120, Florida Statutes, proceedings under the Florida Equal Access to Justice Act. Section 57.111(4)(b), Florida Statutes.

   
   

8. Section 57.111(4)(a), Florida Statutes, provides in part that, ". an

   award of attorneys fees and costs shall be made to a prevailing small business party in any...administrative proceeding pursuant to chapter 120 initiated by a state agency..." Relevant statutory definitions are provided in Section 57.111(3), as follows:

   
   

   (3)(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.

      
      

      (3)(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.

      
      

9. Petitioners concede in their pleadings that they initiated Case Number 86-3618 under Sections 120.57(1) and 403.412(5), Florida Statutes. It was Petitioners, and not the Department, that filed the request for an administrative hearing in Case Number 86-3618, and therefore this prior action was clearly not initiated by a state agency under the terms of Section 57.111(3)(b)2.

   
   

10. Section 57.111(3)(b)3. does provide that when a law or rule requires an agency to advise a small business party of a clear point of entry, then under those circumstances any resulting action is "initiated by a state agency". However, nothing herein supports Petitioners assertion of the applicability of this provision. Neither Section 120.57, Florida Statutes, nor Rule 17-103.150, Florida Administrative Code, require the Department to provide a person or corporation which is not a permit applicant, such as Petitioners, with specific written notice of its intended action on a permit application. Rather, Rule 17- 103.150(2)(a) requires the permit applicant to publish notice of intended agency

    action for the information of the public at large. The fact that Petitioners availed themselves of the point of entry which is open to members of the public through Rule 17-103.155(1)(a) who claim that their substantial interests may be affected by agency action, does not thereby transform this action into one which has been "initiated by" the Department. Petitioners were entitled to no more specific notice of the Department's intended action than the public at large, and such notice was given, pursuant to the Department's rules, not by the Department, but by the permit applicant, Agrico. Thus, Petitioners have failed to show any basis upon which Section 57.111(3)(b)3. is applicable in this case since there is no statute or rule requiring the Department to give them specific notice of a clear point of entry which then lead to their initiation of Case Number 86-3618.

    
    

11. Even assuming, arguendo, that Case Number 86-3618 was initiated by the Department under Section 57.111(3)(b)3., Florida Statutes, Petitioners have failed to show any basis upon which they could be considered a "prevailing small business party," as defined in Section 57.111(3)(c). No judgment or order in favor of Petitioners was entered in Case Number 86-3618; Petitioners did not obtain a favorable settlement on any, let alone the majority, of the issues raised in that proceeding; and the Department did not voluntarily dismiss the prior case. Rather, Agrico simply withdrew its permit application, thereby making Case Number 86-3618 moot.

    
    

12. The withdrawal of the permit application terminated the Department's jurisdiction over the application, and therefore the Department had no option but to dismiss Case Number 86-3618 as moot. Humana of Florida, Inc. v. Department of Health and Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986). A "moral victory" does not make one a "prevailing small business party. Briggs v. Department of Professional Regulation, 9 FALR 795 (DOAH Case NO. 86- 0538F; Filed May 7, 1986).

    
    

13. Petitioners' reliance on the decision in 51 Island Way Condominium Association v. Williams, 458 So.2d 364 (Fla. 2nd DCA 1984) is not well-founded since the decision to award attorneys fees in that case did not involve Section 57.111, Florida Statutes, but rather construed a provision in the Florida Condominium Act, Section 718.303, Florida Statutes, under facts significantly different than those in this case. In 51 Island Way, the party against whom attorneys fees were sought took certain voluntary actions which resulted in the lower court's dismissing the action between the parties just prior to trial as moot. In this case, the Department did not take any action which resulted in the mootness of Case Number 86-3618. It was Agrico that voluntarily withdrew its application, and yet Petitioners seek to have the Department pay attorneys fees and costs. The case of 51 Island Way is distinguishable both on its facts and applicable law, and therefore does not support Petitioners claim of entitlement against the Department.

    
    

14. Based upon the foregoing, it is evident that Petitioners "initiated" Case Number 86-3618, and further were not a "prevailing small business party" therein. Therefore, they cannot qualify for an award of attorneys fees and costs against the Department under Section 57.111(3)(b), (c), Florida Statutes. Further, there is no basis under Section 57.111 to enter an award of attorneys fees and costs against a private party. At hearing, Petitioners did not oppose Agrico's Motion to Dismiss in recognition of the clear meaning and intent of Section 57.111, Florida Statutes, to authorize the award of attorneys fees and costs against state agencies, and not private parties.

Accordingly, it is:

ORDERED that the Motions to Dismiss filed herein are GRANTED.

DONE AND ORDERED this 16th day of December, 1987, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1987.

COPIES FURNISHED:

Peter Belmont, Esquire

511 31st Avenue North

St. Petersburg, Florida 33704

Joseph W. Landers, Jr., Esquire Richard Lotspeich, Esquire

Post Office Box 271 Tallahassee, Florida 32302

Richard T. Donelan, Jr., Esquire State of Florida Department of

Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Dale Twachtmann Secretary

State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

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 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.

Docket for Case No: 87-003007F

Orders for Case No: 87-003007F