STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARK, ROUMELIS & ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4532F

) STATE OF FLORIDA, DEPARTMENT OF ) COMMUNITY AFFAIRS, )

)

Respondent. )

)

FINAL ORDER

This case concerns Petitioner's claim for attorney's fees and costs pursuant to Section 57.111, Florida Statutes. The case proceeded without hearing in accordance with Rule 60Q-2.035, Florida Administrative Code, in that the parties did not seek an evidentiary hearing to consider the claim for attorney's fees and costs. Consequently the case is being decided on the basis of the pleadings and supporting documents in the files and records of the Division of Administrative Hearings.

FINDINGS OF FACT

1. Petitioner is a Florida corporation for profit located at 1933 Commonwealth Lane, Tallahassee, Leon County, Florida.

   
   

2. At all times pertinent to this case Petitioner has operated a business in Florida.

   
   

3. Respondent is a Florida state agency. Its duties include the administration of Community Development Block Grants in Florida, (hereinafter referred to as CDBG).

   
   

4. Petitioner requested Respondent to reimburse money related to administrative services which Petitioner provided to Okaloosa County, Florida related to a CDBG. The petition for those monies was filed in February, 1993. The request for reimbursement was in the amount of $43,274.92. Respondent denied that request. In turn, by opportunity provided by Respondent, Petitioner sought an administrative hearing pursuant to Section 120.57(1), Florida Statutes, to challenge Respondent's preliminary agency decision denying the request for reimbursement. The case was forwarded to the Division of Administrative Hearings to assign a hearing officer to conduct a formal hearing to resolve the dispute between Petitioner and Respondent.

   
   

5. The administrative proceeding concerning the reimbursement claim was considered in the case Clark, Roumelis & Associates, Inc., v. State of Florida, Department of Community Affairs, Respondent, DOAH Case No. 93-1306.

   
   

6. At the time Petitioner initiated the action to seek reimbursement and was afforded the point of entry to contest the preliminary action denying the

   reimbursement request, Petitioner employed no more than twenty-five (25) full- time employees and had a net worth of not more than $2 million dollars.

   
   

7. Following a formal hearing a recommended order was entered by the undersigned which recommended that Petitioner be paid $43,274.92. The recommended order was entered on September 29, 1993.

   
   

8. In turn, Respondent's final order dated December 28, 1993 denied the petition for reimbursement.

   
   

9. Petitioner took an appeal to the First District Court of Appeal, State of Florida, Case No. 94-0151. In an Opinion filed February 16, 1995, the First District Court of Appeal decided in favor of Petitioner by reversing Respondent's final order and remanding the case. Respondent sought rehearing and rehearing on en banc which was denied on March 24, 1995 by the First District Court of Appeal. Respondent sought further review before the Florida Supreme Court, Case No. 85,581, which denied that review by not accepting jurisdiction. That decision by the Florida Supreme Court was made on September 6, 1995.

   
   

10. On September 13, 1995, Petitioner filed a petition with the Division of Administrative Hearings pursuant to Section 57.111, Florida Statutes. Through that action Petitioner sought the reimbursement of attorney's fees and costs associated with DOAH Case No. 93-1306 and the appeals that followed the December 28, 1993 final order denying the reimbursement.

    
    

11. Contrary to the requirements set forth in Section 60Q-2.035(5)(a), Florida Administrative Code, Respondent did not file a response to the petition within twenty (20) days of the filing of the petition seeking reimbursement attorney's fees and costs.

    
    

12. Neither party has sought an evidentiary hearing for the Division of Administrative Hearings to consider Petitioner's request for reimbursement of attorney's fees and costs.

    
    

13. Therefore this case has proceeded without an evidentiary hearing.

    Rule 60Q-2.035(7), Florida Administrative Code. In that setting Respondent is deemed to have waived its opportunity to contest whether the attorney's fees and costs claimed are unreasonable; whether Petitioner is not a prevailing small business party in DOAH Case No. 93-1306; whether Respondent's actions in denying Petitioner's claim for monetary reimbursement related to administrative services provided to Okaloosa County, Florida in the CDBG was a decision which was substantially justified in law and fact; whether circumstances exist which would make the award of attorney's fees and costs unjust and to present the defense that the Respondent was only a nominal party in DOAH Case No. 93-1306. See Rule 60Q-2.035(5)(a), Florida Administrative Code.

    
    

14. Consistent with Rule 60Q-2.035(7), Florida Administrative Code the following additional facts are found for or against the award of attorney's fees and costs, based upon the pleadings and supporting documents in the files and records in the Division of Administrative Hearings:

    
    

    1. Petitioner is a small business party and a prevailing small business party in the matters considered in DOAH Case No. 93-1306 and the court appeals that followed.

    2. Petitioner's attorney has submitted an affidavit claiming, "In the administrative proceedings of this action, 140.8 hours were expended to the date of Respondent's Final Order of December 28, 1993. Total Fees: $21,120.00."

       
       

    3. Petitioner's attorney has submitted an affidavit claiming, "In the administrative proceedings of this action, $2,141.78 in costs were incurred to the date of Respondent's Final Order of December 28, 1993."

       
       

    4. Petitioner's attorney has submitted an affidavit claiming, "In the appellate proceedings in this action (First District Court of Appeal Case No.

       94-0151 in Florida Supreme Court, Case No. 85,581), 79.0 hours were expended and

       $310.66 in costs were incurred to the date of the Supreme Court's denial of September 6, 1995. Total Fees: $13,258.00. Total Costs: $310.66."

       
       

    5. The affidavits submitted by Petitioner concerning the claim for attorney's fees and costs incurred to the date of Respondent's final order of December 28, 1993, failed to adequately " . . . reveal the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions, [and] hearings . . . in the proceeding" by "itemizing" the claim. Section 57.111(4)(b)1, Florida Statutes.

       
       

    6. By contrast, the attorney's affidavit filed for attorney's fees and costs in the appellate proceedings was adequate to identify services rendered by the attorney and costs incurred related to appeals in the proceeding. Section 57.111(4)(b)1, Florida Statutes.

       
       

    7. The amount of attorney's fees and costs for appellate proceedings is within the $15,000.00 cap for recovery of attorney's fees and costs as set forth in Section 57.111(4)(d)2., Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 57.111 and 120.57(1), Florida Statutes.

    
    

16. In DOAH Case No. 93-1306 Respondent provided Petitioner with a clear point of entry in accordance with law to contest the preliminary decision denying Petitioner's claim for monetary reimbursement related to administrative services provided to Okaloosa County for CDBG. Section 57.111(3)(a)3, Florida Statutes.

    
    

17. Petitioner meets the definition of "small business party" set forth at Section 57.111(3)(d), Florida Statutes in that it is a Florida corporation which has its principal office in the State of Florida and at the time that the decision was made to afford Petitioner a point of entry to contest Respondent's preliminary decision denying the reimbursement for services to Okaloosa County, it had not more than twenty-five (25) full-time employees and a net worth of not more than $2 million dollars.

    
    

18. Following the appeal concerning the final order denying the claim for reimbursement related to the administrative services provided to Okaloosa County, Petitioner became a "prevailing small business party" as defined in Section 57.111(3)(c), Florida Statutes.

    
    

19. Respondent failed to offer a response to the petition seeking attorney's fees and costs as required by Rule 60Q-2.035(5)(a), Florida

    Administrative Code. See also, Section 57.111(4)(c), Florida Statutes. Therefore Respondent was precluded from opposing the application for the award of attorney's fees and costs. Respondent waived its opportunity to question whether Petitioner was a prevailing small business party. Respondent by not responding to the petition waived the opportunity to prove that its actions were substantially justified or that special circumstances existed which would make the award of attorney's fees and costs unjust. Section 57.111(4)(a), Florida Statutes. Finally, by not responding to the petition Respondent waived its opportunity to argue that it was only a nominal party in DOAH Case No. 93-1306. Section 57.111(4)(d)1, Florida Statutes.

    
    

20. Petitioner timely sought an award of attorney's fees and costs, in that it filed a petition within sixty (60) days from the Supreme Court decision denying jurisdiction. Section 57.111(4)(b)2, Florida Statutes.

    
    

21. The attorney's affidavit for fees and costs related to administrative proceedings incurred to the date of Respondent's final order on December 28, 1993 did not adequately reveal the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions and hearings, by itemizing the nature and extent of the services rendered. Those requirements were adequately attended in the affidavit associated with the request for attorney's fees and costs in appellate proceedings. Section 57.111(4)(b)1, Florida Statutes and Rule 60Q-2.035(3), Florida Administrative Code.

    
    

22. Therefore, Petitioner's claim for an award of attorney's fees and costs incurred to the date of Respondent's final order dated December 28, 1993 in the amount of $21,120.00 and $2,148.78, respectively, may not be applied against the $15,000.00 cap for attorney's fees and costs in the action. Section 57.111(4)(d)2, Florida Statutes.

    
    

23. Petitioner is entitled to attorney's fees in the amount of $13,250.00 and costs in the amount of $310.66 for work done and expenses related to the appellate proceedings.

ORDERED

It is therefore ordered that Respondent shall pay Petitioner attorney's fees in the amount of $13,250.00 and costs in the amount of $310.66. All other claims for attorney's fees and costs are denied.

DONE and ORDERED this 13th day of October, 1995, 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 13th day of October, 1995.

COPIES FURNISHED:

Stephen Marc Slepin, Esquire 1114 East Park Avenue Tallahassee, FL 32301

Alfred Bragg, III, Esquire Department of Community Affairs Rhyne Building, Room 138

2740 Centerview Drive

Tallahassee, FL 32399-2100

James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Dan Stengle, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

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: 95-004532F

Orders for Case No: 95-004532F