vs. ) CASE NO. 95-0940F
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 15, 1995, in Miami, Florida.
For Petitioner: Nicholas W. Mulick, Esquire
Beckmeyer & Mulick, P.A. 88539 Overseas Highway
For Respondent: Sherry A. Spiers, Esquire
Whether Petitioner, Fred Snowman, is entitled to an award of attorney's fees and costs against Respondent pursuant to Section 57.111, Florida Statutes.
Petitioner timely applied for an award of attorney's fees pursuant to Section 57.111, Florida Statutes, predicated on its status as a prevailing party in DOAH Case Number 93-7165DRI. In the underlying action, the Department appealed to the Florida Land and Water Adjudicatory Commission (FLWAC) a building permit that had been issued to Mr. Snowman by Monroe County, Florida.
The Department's position in the underlying action was that the building permit did not comply with the setback requirement enacted to protect sea turtles and their nests. The matter was referred to the Division of Administrative Hearings and assigned DOAH Case Number 93-7165DRI. Following a formal hearing in the underlying action, a Recommended Order was entered which recommended that the appeal be dismissed. Thereafter, the Department voluntarily dismissed its
appeal. Petitioner timely filed his Petition for Attorney's Fees and Costs pursuant to Section 57.111, Florida Statutes, thereby initiating the instant proceeding.
The parties stipulated that the only issues remaining to be resolved are whether Mr. Snowman meets the definition of a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, and whether the Department's appeal of the building permit in the underlying proceeding was substantially justified at the time the appeal was taken. The parties stipulated that Mr. Snowman was the prevailing party in the underlying proceeding, that the proceeding was initiated by a state agency, that the state agency was not a nominal party, and that there were no special circumstances which would make an award of attorney's fees unjust. The parties further stipulated that attorney's fees in the amount of $11,550.00 and costs in the amount of $1,496.62, as itemized by the affidavit filed by Petitioner's counsel, are reasonable fees and costs.
At the formal hearing in the instant proceeding, Petitioner testified on his own behalf and Kenneth Brian Metcalf testified on behalf of the Respondent. At the request of the Respondent, official recognition was taken of the pleadings, exhibits, and transcript in the underlying case, DOAH Case Number 93- 7165DRI. Neither party offered any exhibit in the instant proceeding.
A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the proposed findings of fact submitted by the parties may be found in the appendix to this Final Order.
Respondent, Department of Community Affairs, is the state land planning agency charged with the responsibility of administering the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. The Department has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern pursuant to Sections 380.031(18), 380.032, and 380.07, Florida Statutes.
At all times pertinent to this proceeding and to DOAH Case Number 93- 7165DRI, Petitioner, Fred Snowman, owned the real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida (the subject property). A building permit issued by Monroe County, described below, for this property was the subject of DOAH Case Number 93- 7165DRI (the underlying proceeding.) The lot is approximately 100 feet wide and, at different points, between 200 and 225 feet deep. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean in an area known as Matecumbe Beach. Matecumbe Beach is a known resting and nesting habitat for marine turtles.
This building permit constituted a development order on property within the Florida Keys Area of Critical State Concern.
On September 30, 1993, Monroe County issued to Mr. Snowman, as the owner and general contractor, building permit number 9330008850, which authorized the construction on the subject property of a single-family residence
containing 2,472 square feet of heated and cooled area, 1,568 square feet of porches, 1,435 square feet of storage enclosure below base flood elevation, and a swimming pool. The authorized construction was to be consistent with the building site plan, which was also approved by Monroe County.
On November 18, 1993, the Department timely appealed the subject building permit to the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. FLWAC referred the matter to the Division of Administrative Hearings where it was assigned DOAH Case Number 93- 7165DRI. A formal hearing was conducted in DOAH Case Number 93-7165DRI in Key West, Florida, on June 30, 1994. Following the formal hearing, the parties were afforded the opportunity to file post-hearing submittals. Thereafter, a recommended order was entered which recommended that FLWAC enter a final order that dismisses the Department's appeal. After the entry of the recommended order, the Department voluntarily dismissed its appeal. FLWAC subsequently entered a final order of dismissal. Petitioner, Fred Snowman, was the prevailing party in DOAH Case Number 93-7165DRI.
SMALL BUSINESS PARTY
The issue as to whether Petitioner is a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, was disputed by the Department in this proceeding. The parties stipulated that Mr. Snowman meets the remaining criteria contained in Section 57.111, Florida Statutes, for an award of attorney's fees and costs.
The following testimony elicited by Petitioner's counsel of the Petitioner was the sole evidence pertaining to the number of employees of the Petitioner:
Could you tell us a little bit about your business? What's the nature of your business?
Primarily I'm a speculation - spec builder and general contractor in the Florida Keys, and have been since 1973.
Q. How many employees do you maintain on a regular basis?
A. I mainly have subcontractors. Occasionally when I have a job, I hire for that particular job. But I'm the sole proprietor and I'm the employee.
(Transcript, page 9, lines 12-22.)
While the foregoing testimony establishes that as of May 15, 1995, Petitioner was the sole proprietor and sole employee of his business, it does not establish that Petitioner had fewer than 25 employees in 1993 when the Department initiated its actions against him. 1/
The following testimony elicited by Petitioner's counsel of the Petitioner pertains to his net worth:
Q. What is your net worth? Let me ask you this. Does your net worth exceed a million dollars?
A. No.
Q. Less than a million dollars?
A. Yes.
(Transcript, page 9, line 23 through page 10, line 3)
The following testimony elicited by Respondent's counsel of the Petitioner on cross examination also pertains to his net worth:
Q. When you're identifying your net worth, what exactly are you considering?
A. Well, net worth is all my assets minus my liabilities.
Q. All of your personal assets?
A. Which are far and few between (sic) today.
Q. Do you have business assets?
A. No.
Q. Do you own any property?
A. Lot 75.
Q. Any property other than Lot 75?
A. I own three lots, small lots in Plantation Key.
Q. Are they developed or undeveloped?
A. No, they're undeveloped.
Q. Do you know how much they're worth?
A. They're valued at fifteen thousand per lot.
Q. They're not on the water?
A. Not on the water.
Q. Lot 75, do you know what that property's worth?
A. That property is worth about a hundred and seventy-five thousand.
Q. Without the house on it?
A. Without the improvements, yes.
Q. How about in its improved condition?
A. I would say, in the improved condition, with this home, it would be about five hundred thousand.
Q. Okay. Other than the real estate, do you have
any personal or business investments, stocks or --
A. No.
Q. No?
A. Just my condo.
(Transcript, page 10, line 8 through page 11, line 13.)
There was no other evidence presented as to Petitioner's net worth. While the foregoing testimony establishes that as of May 15, 1995, Petitioner had a net worth of less than two million dollars, it does not establish that his net worth was below that figure in 1993 when the Department initiated its actions against him.
SUBSTANTIAL JUSTIFICATION
The Department's appeal initially raised several issues. All issues in the underlying proceeding but one were voluntarily dismissed by the Department either prior to the hearing or at the hearing. The only issue litigated at the formal hearing in DOAH Case Number 93-7165DRI was the appropriate setback from the portion of the beach-berm complex located on the subject property known to serve as an active nesting or resting area of marine turtles. Pertinent to this proceeding, Section 9.5-345(3)(f), Monroe County Code, provides:
f. No structure shall be located within fifty
(50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds;
There was no dispute in Case 93-7165DRI that the turtle nesting setback applied to Mr. Snowman's property. The dispute was how to apply the setback. There was a bona fide factual dispute as to the extent of the beach berm complex on the subject property that should be considered to be "beach berm complex which is known to serve as an active nesting or resting area of marine turtles" within the meaning of the setback ordinance.
The Department established that it followed its standard procedures in deciding to appeal the subject development order. The Department maintains a field staff in the Florida Keys that routinely reviews development orders issued by Monroe County for consistency with the land development regulations, the Monroe County comprehensive plan, and Chapters 163 and 380, Florida Statutes. The permit package typically reviewed, and reviewed in this case, includes the permit, a permit conditions sheet, surveys, and site plans. The Department staff usually reviews a biological survey or habitat evaluation index, reviews the County's entire file, reviews aerial photographs and conducts a field assessment. In this case, the Department also looked at records of the Department of Natural Resources and of the Save A Turtle volunteer environmental group.
In this case, the Department conducted a field assessment of Mr. Snowman's lot and measured the point it considered to be the landward extent of the turtle nesting setback line. Kate Edgerton, an experienced biologist employed by the Department, measured the point the Department asserted was the landward extent of the turtle nesting setback line. Ms. Edgerton made a good faith assessment of the beach berm complex and considered the property to contain one beach berm complex. (Transcript, DOAH Case 93-7165DRI, page 166, line 17.) Ms. Edgerton testified in the underlying proceeding that she considered herself bound by the definitions in the Monroe County land use regulations and that she believed herself to be applying the pertinent definition when she measured the setback line. (Transcript, DOAH Case 93- 7165DRI, page 163, lines 20-23.)
Following field staff review, a report is prepared and forwarded to Tallahassee for review by additonal staff, including the Department's administrator of the critical state concern program. Department staff in Tallahassee review the field staff report and participate in formulating a recommendation as to whether to appeal the permit. The appeal decision is then made either by the Department Division Director or by the agency head.
Each material step in the Department's customary practice of reviewing permits was followed in reviewing the subject permit.
Section 9.5-4(B-3), Monroe County Code, contains the following definition of the term "beach berm" that was found to be pertinent to the underlying proceeding:
(B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated
sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested,
coastal ridges and may be colonized by hammock vegetation.
The term "berm" is identified in the Monroe County comprehensive plan
as
. . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm.
At the formal hearing in the underlying appeal, there was conflicting
evidence as to the extent of the beach berm complex on the subject property. The Recommended Order found that there were two distinct ridges located on the subject property. The issue of whether both ridges could be considered part of
the "beach berm complex" was one of first impression. Succinctly stated, it was the position of the Department in the underlying appeal that both ridges were in an area of potential habitat on a beach that is known habitat and it asserted the position that both ridges should be considered to be one beach berm complex. The Department asserted the position that the setback should be measured from the landward extent of the second ridge (the more landward of the two ridges).
Monroe County had measured the setback from the landward extent of the first ridge. Mr. Snowman agreed with the County's determination of the setback. Mr. Snowman presented evidence that the County had, for several years, applied the setback from the landward extent of the first ridge and argued that, based on the foregoing definitions each ridge should be considered to be a separate beach berm, but that only the first should be considered to be a beach berm. The Department presented evidence that the County had applied the setback provision in an inconsistent manner by measuring from the crest of berms in some cases and measuring from the landward extent of berms in other occasions.
The Recommended Order rejected the Department's position and concluded that the definition of "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, and the description of "berm" in the comprehensive plan were unambiguous. Although the Department argued that other provisions of the code and comprehensive plan supported their construction of the setback requirement, it was concluded that the issues should be resolved based on the unambiguous definition of "beach berm". It was also concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. It was observed that "[w]hile a greater setback may better serve the goals of the comprehensive plan, as argued by the Department, the imposition
of a greater setback requirement should come from a change in the Monroe County Code." This observation was made because the Department had found support for its interpretation of the setback requirement from other parts of the code and comprehensive plan.
This case involved bona fide disputed issues of material fact and legal issues that were of first impression. It is found that those issues, although resolved against the Department following the formal hearing, were of sufficient merit to substantially justified the Department's actions in initiating the underlying appeal.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding.
Section 57.111(2), Florida Statutes, states the purpose of the Florida Equal Access to Justice Act, in pertinent part, as follows:
This section may be cited as the "Florida Equal Access to Justice Act."
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.
Section 57.111(3)(d)1.a., Florida Statutes, provides the definition of the term "small business party" that is pertinent to this proceeding:
The term "small business party" means:
1.a. A sole proprietor of an unincorporated business . . . 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;
(Emphasis has been added.)
Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has the burden of making a prima facie showing of his entitlement to an award of attorney's fees and costs
pursuant to Section 57.111, Florida Statutes. The Petitioner did not make that prima facie showing and his petition for attorney's fees and costs must be denied.
Based on the foregoing, it is not necessary to determine whether the Department was substantially justified in initiating the underlying appeal. It is only after the prima facie showing of entitlement to an award is made that the burden shifts to the Department to establish that its actions in initiating the underlying proceeding were substantially justified. See, Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989). Because Petitioner did not make a prima facie showing of his entitlement, the burden did not shift to the Department in this proceeding to establish that its actions were substantially justified in initiating the underlying actions.
Even if the Petitioner had established a prima facie showing of his entitlement to an award of fees and costs pursuant to Section 57.111, Florida Statutes, the Department established that its actions were substantially justified in initiating the appeal of the development order in DOAH Case 93- 7165DRI.
Attorney's fees and costs are not to be awarded against a state agency if the actions of the agency in initiating the action were substantially justified. Section 57.1111(4)(a), Florida Statutes, provides:
(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.
Section 57.111(3)(e), Florida Statutes, defines when an action by a state agency is substantially justified:
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.
The reasonableness of government action was addressed in McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir. 1983) where the court defined "substantially justified" as meaning "the government must have a solid though not necessarily correct basis in fact and law for the position it took" in the action. Accord, Department of Health and Rehabilitative Services v. S. G., 613 So.2d 1380, 1386 (Fla. 1st DCA 1993), and Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982).
As found in the findings of fact, the Department had substantial justification for initiating the underlying appeal in November 1993.
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner's application for an award of attorney's fees and costs is DENIED.
DONE AND ORDERED this 10th day of August, 1995, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1995.
1/ An inference is a logical deduction of fact that the trier of fact may draw from the existence of another fact or group of facts. Whether it will find the inferred fact to exist is for the trier of fact to decide. See, Ehrhardt, Florida Evidence, Section 301.1., and Sections 90.301, and 120.58(1)(a), Florida Statutes. The undersigned declines to draw the inference that Petitioner had fewer than 25 employees when the Department appealed the building permit in 1993 based on his testimony quoted above since the level of his business activity could have been very different in 1993 than it was in 1995.
APPENDIX TO FINAL ORDER, CASE NO. 95-0940F
The following rulings are made as to the proposed findings of fact submitted by the Petitioner.
The following rulings are made as to the proposed findings of fact submitted by the Department.
Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive
Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive
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.
