STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE SHAHBLIN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3617F

)

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

Steve Shamblin, pursuant to Section 57.111, Florida Statutes, has petitioned for the payment of attorney's fees arising out of the defense of the action, State of Florida, Department of Transportation vs. Steve Shamblin, DOAH Case No. 89-5941.

1. In that action, Shamblin was charged with various violations through a Notice to Show Cause dated July 18, 1989. Those allegations were associated with claims by the Department that Shamblin had used unacceptable signs on his commercial property as spoken to in Section 479.11(8), Florida Statutes, and allowed unauthorized parking on the right-of-way of State Road 206 at that property located in St. Johns County, Florida, in violation of Section 337.406, Florida Statutes. Finally, Shamblin was charged with not having a drive permit for the connection of his property to State Road 206 as allegedly required by Chapter 335, Florida Statutes.

   
   

2. On February 8, 1990, a formal hearing was convened before the undersigned in Jacksonville, Florida, to consider the allegations in the Notice to Show Cause. Authority for the conduct of that hearing is set forth in Section 120.57(1), Florida Statutes. At the commencement of the hearing, Shamblin conceded the allegations concerning the signs in question and the unauthorized parking on the right-of-away.

   
   

3. Having considered the presentation, a recommendation was made which recognized the concessions by Shamblin related to those two items, calling for the removal of the offending signs, if still in existence, acknowledging the problem relating to parking on the right-of-way and absolving Shamblin of any necessity to obtain a driveway permit. The Recommended Order was dated March 9, 1990.

   
   

4. On April 20, 1990, Ben G. Watts, P.E., Secretary of the Department of Transportation, entered a Final Order calling for the removal of the offending signs, requiring Shamblin to designate with signs the appropriate parking areas away from the right-of-way for benefit of his customers and dismissing any accusations against Shamblin related to the requirement for a driveway connection permit.

5. Shamblin is a "small business party" within the definition set forth at Section 57.111(3)(d), Florida Statutes. On the subject of the necessity to have a drive permit, he is a prevailing "small business party", as defined within Section 57.111(3)(c), Florida Statutes. He did not prevail concerning the requirements to remove signs and to make appropriate responses to the parking problems at his business. Under the circumstances the Department was "substantially justified" in its initiation of state agency action to resolve the problems with the signs and parking. It was unjustified in its action in pursuing Shamblin for not having a permit based upon an analysis of the situation at the time the state agency action was initiated. This refers to Section 57.111(3)(e), Florida Statutes, describing what it means to have a substantially justified'' state action. These legal conclusions are reached based upon the facts found in the Recommended Order in DOAH Case No. 89-5941 and adopted in the Final Order.

   
   

6. On May 31, 1990, Shamblin made a timely request for attorneys' fees as contemplated by Section 57.111(4)1., Florida Statutes. That motion or petition attached a statement, which is considered to be an affidavit, calling for the payment of $800.00 in attorneys' fees. It explains the nature and extent of the services rendered by the attorney.

   
   

7. On June 18, 1990, the Department filed written notification of its opposition to the request for attorneys' fees. That response was timely. See Rule 221-6.035(5) (a), Florida Administrative Code. The Department has not requested an evidentiary hearing in accordance with that provision. Basically, its response opposes the payment of any fee in that the state feels that it was "substantially justified" in bringing the Notice to Show Cause and has prevailed in two of the three counts in question. That contention by the Department has been answered above. It has been answered without resort to an evidentiary hearing sua sponte as envisioned by Rule 221-6.035(7), Florida Administrative Code.

   
   

8. The supporting affidavit for attorneys' fees does not specify which portion of the attorney's time was devoted to the several issues in question related to signs, parking and permit requirements. With that in mind, it having been decided that the agency was "substantially justified" in two of the three claims and not in the third, it is determined that the Department owes Shamblin

$266.67 in attorneys' fees.

DONE and ORDERED this 12th day of July, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1990.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

Leo O. Myers, Esquire

403 Northeast Second Street Ocala, FL 32670

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER 15 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: 90-003617F

Orders for Case No: 90-003617F