STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORT HILLMAN, ROSA DURANDO, ) and BARRY SILVER, )

)

Petitioners, )

)

vs. ) Case No. 98-0202GM

)

PALM BEACH COUNTY and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents, )

)

and )

)

RICHARD SIEMENS, )

)

Intervenor. )

)

SUPPLEMENTAL RECOMMENDED ORDER

A formal hearing was held in this case before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on February 10 through 11, 1998, in West Palm Beach, Florida.

APPEARANCES

For Petitioners, Mort Hillman and Rosa Durando:

Richard Grosso, Esquire Robert Lyerly, CLI

Jo Anne Brandenburg, CLI Environmental and Land Use Law Center Shepard Broad Law Center

Nova Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33314

For Petitioner, Barry M. Silver:

Barry M. Silver, Esquire Corporate Center, Suite 308 7777 Glades Road

Boca Raton, Florida 33434-4194

For Respondent, Department of Community Affairs: Shaw Stiller

Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Respondent, Palm Beach County:

Barbara Alterman, Esquire Robert P. Banks, Esquire Assistant County Attorneys Post Office Box 1989

West Palm Beach, Florida 33401

For Intervenor, Richard Siemens:

C. Gary Williams, Esquire Stephen C. Emmanuel, Esquire Ausley and McMullen

Post Office Box 391 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether attorneys' fees and costs should be awarded to Respondent, Palm Beach County, and Intervenor, Richard Siemens, pursuant to Section 120.595, Florida Statutes (1997).

PRELIMINARY STATEMENT

When filed, this case involved a challenge to a determination of the Department of Community Affairs that an amendment to the Palm Beach County comprehensive plan was "in

compliance." A formal hearing was held in the case on February 10 through 11, 1998.

Subsequent to the conclusion of the formal hearing in this case, but prior to the entry of a Recommended Order, Respondent, Palm Beach County, and Intervenor, Richard Siemens, filed Palm Beach County and Siemens' Joint Motion for Attorneys' Fees (hereinafter referred to as the "County/Siemens' Motion for Fees"). Palm Beach County and Mr. Siemens requested an award from Petitioners of attorneys' fees and costs pursuant to Sections 120.569(2), 120.595(1)(b), and (c), and 163.3184(12),

Florida Statutes, in the County/Siemens' Motion for Fees.

A series of motions and responses were filed following the filing of the County/Siemens' Motion for Fees:

1. Petitioners' Response in Opposition to Respondents' [sic] and Intervenor's Joint Motion for Attorney's Fees, Motion to Strike and Motion for Attorney's Fees;

   
   

2. Amended Motion to Strike Palm Beach County and Intervenor Richard Siemens' Joint Motion for Attorney's Fees;

   
   

3. Palm Beach County and Richard Siemens' Joint Response to Petitioners Hillman and Durando's Motion to Strike and Motion for Attorneys' Fees and to Petitioner Silver's Amended Motion to Strike;

   
   

4. Petitioners' Reply to Joint Response Regarding Attorney's Fees;

   
   

5. Amendment to Petitioners' Reply to Joint Response Regarding Attorney Fees;

   
   

6. Petitioner Barry Silver's Motion for Protective Order and Response to Palm Beach

   County and Richard Siemens' Joint Response to Silver's Amended Motion to Strike;

   
   

7. Palm Beach County and Siemens' Joint Response to Petitioner Barry Silver's Motion for Protective Order and Notice of Legislative Stay; and

   
   

8. Department of Community Affairs' Motion for Leave to File Response in Opposition to Joint Motion for Attorneys' Fees.

On April 17, 1998, a Recommended Order was entered in this case. It was recommended that the Department of Community Affairs enter a Final Order finding the plan amendment at issue in this case to be "in compliance." Jurisdiction over the County/Siemens' Motion for Fees and the other outstanding motions was reserved.

An Order of Abeyance Before the Division of Administrative Hearings was entered simultaneously with the Recommended Order. The abeyance was entered when Petitioner Barry Silver, a member of the Florida Legislature, requested that the matter be held in abeyance until 15 days after the 1998 legislative session ended. The requested abeyance was made, and granted, pursuant to Section 11.111, Florida Statutes. The abeyance was lifted by an Order entered July 7, 1998.

On August 5, 1998, an Order on Motion for Attorney's Fees and Other Motions was entered. In the August 5, 1998, Order, it was concluded that, despite the lifting of the abeyance, a ruling should not be entered on the County/Siemens' Motion for Fees until a Final Order was entered by the Department. It was

concluded that a ruling should be withheld until after a Final Order was entered so that it could be determined who the prevailing and non-prevailing parties are, a determination which is necessary to determine whether fees should be awarded pursuant to Section 120.595, Florida Statutes.

The parties were also informed in the Order of August 5, 1998, that even after the Final Order was entered it might be necessary for the parties to be given an opportunity to be heard on the issue of attorneys' fees and costs sought by Palm Beach County and Mr. Siemens before a ruling on the motion was entered.

In the August 5, 1998, Order the parties were given until August 24, 1998, to be heard on the procedures which should be followed in disposing of the County/Siemens' Motion for Fees once the Final Order was entered. It was suggested that the parties might desire an opportunity to file additional argument and/or a proposed recommended order addressing the issue of fees. The parties were also informed that an evidentiary hearing would be conducted if requested by the parties.

All other outstanding motions concerning attorneys' fees and costs were disposed of in the August 5, 1998, Order.

On August 13, 1998, Palm Beach County and Mr. Siemens filed Respondent Palm Beach County and Intervenor Richard Siemens' Joint Response to Order on Motion for Attorneys' Fees and Other Motions. Included with the response was a copy of the Final Order entered in this case. The Final Order, which had been

entered May 20, 1998, but had not been filed with the undersigned, accepted the recommendation in the Recommended Order to find the plan amendment at issue in this case to be "in compliance." It was suggested in this pleading that there was no need for an evidentiary hearing on the issues raised in the County/Siemens' Motion for Fees. If fees were awarded, however, it was suggested that an evidentiary hearing on the amount of the award should be held.

On August 24, 1998, the Department of Community Affairs filed Department of Community Affairs' Response to Order on Motion for Attorney's Fees and Other Motions. Although it was suggested that an evidentiary hearing on the question of the requested award should be conducted, it was also suggested that it was up to Petitioners to elect such a hearing and that the Department of Community Affairs would "abide by that election." The Department of Community Affairs also suggested that the parties be given an opportunity to submit proposed orders on the outstanding fees issues.

No response to the August 5, 1998, Order was filed by Petitioners.

After consideration of the pleadings and the conclusion that the County/Siemens' Motion for Fees should be denied, it has been determined that no evidentiary hearing is necessary for a disposition of the County/Siemens' Motion for Fees. It has also been concluded that it is not necessary for Petitioners or the

Department of Community Affairs to file additional argument on this matter in light of the undersigned's decision on the motion and the additional costs and efforts such responses would require.

This Supplemental Recommended Order disposes of the County/Siemens' Motion for Fees to the extent an award was requested pursuant to Sections 120.595, Florida Statutes (1997). An order ruling on the motion to the extent an award has been sought pursuant to Section 120.569(2)(c) and 163.3184(12), Florida Statutes (1997), is being entered simultaneously with this Supplemental Recommended Order.

FINDINGS OF FACT

Beach County (hereinafter referred to as the "Board"), is a political subdivision of the State of Florida and the governing body of the County.

1. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to

   Part II, Chapter 163, Florida Statutes (1997)(hereinafter referred to as the "Act").

2. Intervenor, Richard Siemens, resides in the County.

   
   

   1. The Subject Amendment.

      
      

3. On September 22, 1997, the Board adopted an amendment to the its comprehensive plan by Ordinance Number 97-28 (hereinafter referred to as the "Subject Amendment"). The Subject Amendment modified the Traffic Circulation Element of the Palm Beach County Comprehensive Plan.

4. Following a review of the Subject Amendment, the Department issued a Notice of Intent finding the Subject Amendment to be "in compliance," as defined in Section 163.3184(1), Florida Statutes (1997).

   1. Initiation of the Challenge to the Subject Amendment.

      
      

5. On December 24, 1997, Mort Hillman, Rosa Durando, and Barry Silver, filed a Petition for Formal Administrative Hearing with the Department requesting a formal hearing pursuant to Section 163.3184(9), Florida Statutes (1997). The petition was filed by Richard Grosso, Esquire, and Mr. Silver, who is a member of The Florida Bar, as co-counsel on behalf of all Petitioners.

6. On January 12, 1998, the petition was filed by the Department with the Division of Administrative Hearings. The Department requested that the petition be assigned to an Administrative Law Judge pursuant to Section 163.3184(9), Florida

   Statutes (1997). The petition was designated Case No. 98-0202GM and was assigned to the undersigned.

7. On January 12, 1998, a Petition to Intervene in this case was filed on behalf of Richard Siemens.

   1. Scheduling of the Final Hearing.

      
      

8. On January 15, 1998, before the Petition to Intervene was ruled on, Mr. Siemens filed a Notice Demanding Expeditious Resolution of Proceeding pursuant to Section 163.3189(3), Florida Statutes (1997).

9. Section 163.3189(3), Florida Statutes (1997), requires that proceedings initiated pursuant to Section 163.3184, Florida Statutes (1997), be scheduled for final hearing "no more than 30 days after receipt" of a demand for expeditious resolution from any party to the proceeding. At the time Mr. Siemens filed the demand for expeditious resolution, he had not yet been granted leave to intervene in this matter.

10. On January 21, 1998, a motion hearing was conducted by telephone. Immediately before the commencement of the motion hearing, Petitioners filed a Response to Petition to Intervene and Motion for Expedited Hearing. Petitioners objected to conducting an expedited hearing but expressed no opposition in their response or during the motion hearing to Mr. Siemens' intervention in this proceeding. Therefore, Mr. Siemens was granted leave to intervene.

11. In light of the fact that Mr. Siemens did not become party to this proceeding until January 21, 1998, the demand for expedited hearing was treated as having been received on January 21, 1998. Pursuant to Section 163.3189(3), Florida

    Statutes (1997), the formal hearing of this case was, therefore, required to be scheduled on or before February 20, 1998.

12. In Petitioners' response to the notice of demand,

    
    

    Mr. Silver objected to the demand for expedited hearing of this matter and asserted that the case should be continued pursuant to Section 11.111, Florida Statutes (1997). Section 11.111, Florida Statutes (1997), provides for a continuance of any administrative hearing in which a member of the Florida Legislature is either an attorney representing the litigants, a party, or a witness. The continuance applies to any period of time during which committee work is required, plus one day prior and one day subsequent to the committee work, and during the fifteen days prior and subsequent to any session of the Legislature.

13. It was pointed out in Petitioners' response to the demand for expedited hearing that Mr. Silver, who appeared as counsel for his co-Petitioners and as a Petitioner, was a member of the Florida House of Representatives.

14. It was represented during the motion hearing that Mr. Silver was required to attend to committee work during the weeks of February 2, 1998, and February 15, 1998. It was also represented that the 1998 Legislative Session was scheduled to

    commence March 3, 1998. Therefore, pursuant to Section 11.111, Florida Statutes (1997), it was argued that no hearing should be scheduled during the weeks of February 2, 1998, and February 15, 1998, during the fifteen days prior to March 3, 1998, and for fifteen days after the end of the Legislative Session.

15. Although the amount of time available to schedule an expedited hearing of this case was severely limited by

    Mr. Silver's schedule, it was determined that Section 11.111, Florida Statutes (1997), did not require a continuance of the hearing during the week of February 9, 1998. Therefore, in an effort to accommodate the provisions of Sections 11.111 and Section 163.3189(3), Florida Statutes (1997), the final hearing was scheduled for the week of

    February 9, 1998.

    
    

16. The afternoon of February 9, 1998, was reserved to hear argument on several motions.

17. The final hearing was scheduled to commence the morning of February 10, 1998, only a little more than a month after the petition initiating this matter was filed with the Department.

18. The final hearing was scheduled for the week of February 9, 1998, over objections of Petitioners and counsel for Petitioners, Mr. Grosso, who was scheduled to appear at another administrative hearing also scheduled for the week of

    February 10, 1998.

    1. Preparation of the Petitioner and for the Final Hearing.

       
       

19. Petitioners have no training in land use planning. Mr. Hillman is a retired musician. Ms. Durando is also retired, having formally managed race horses. Mr. Silver is a sole practitioner and State legislator. None of Petitioners are particularly knowledgeable about the Act or the terms "in compliance."

20. While Petitioners did not conduct an extensive investigation prior to filing their petition in this case, they retained legal counsel and relied upon counsel to prepare their petition. After the petition was filed, there was little time for investigation by Petitioners or counsel.

21. In light of the fact that the parties were not put on notice until January 21, 1998, that the final hearing was to commence on February 10, 1998, the parties had only 12 working days to prepare for the final hearing. Mr. Silver was involved with legislative committee meetings for 5 of those days.

    Mr. Grosso was involved in preparation for other litigation before the Division of Administrative Hearings schedule for the same week. During the time prior to the commencement of the final hearing, there were numerous discovery requests which had to be responded to on an expedited basis, several motions had to be responded to, and a prehearing stipulation had to be prepared.

22. Based upon the lack of time between the scheduling of the final hearing and the commencement of the final hearing,

    Petitioners did not have an adequate amount of time to prepare their case for final hearing.

23. Because of the short period of preparation time, little discovery was conducted by the parties. To the extent that limited discovery was inadequate to prepare the parties for the final resolution of this matter, there simply was insufficient time for further discovery.

24. On February 2 and 3, 1998, only a week before the commencement of the final hearing, the depositions of Petitioners and Lance deHaven-Smith were taken by Intervenors.

25. Mr. deHaven-Smith was designated by Petitioners as an expert witness on planning issues. Mr. deHaven-Smith's deposition consists of almost 160 pages of testimony. Among other things, Mr. deHaven-Smith was asked the following question by counsel for Mr. Siemens and gave the following response:

    Q . . . .

    
    

    Is it your opinion that this issue of whether the County should or should not apply the CRALLS with respect to this 2.3 mile section of Clint Moore Road, in consideration of these issues that you and I have talked about relating to schools, and traffic and those kinds of things, is it your position that it is not even fairly debatable as to whether that decision is consistent with the policies and goals of the Comprehensive Plan of Palm Beach County relating to the agricultural reserve area?

    
    

    A I don't think it is fairly debatable. I can understand if you are looking at the trade-off between the developments, and the 900, versus

    500. And you could see how somebody could easily get sucked in to wanting to make those trade- offs. But you have got a plan that is committing

    you to not only the agriculture reserve area, but the effort to keep traffic down off of that particular road. And I have not understood it.

    
    

    Now, maybe there is a reason that you could apply this sort of temporary concurrency exception beyond three years, but my understanding of the law is that you are limited to three years.

    
    

    Page 65, lines 19 to 25 and page 66, lines 1-22.

    
    

26. Despite the foregoing opinion, Mr. deHaven-Smith also testified extensively about his concerns about the Subject Amendment.

    1. The Final Hearing.

       
       

27. On the afternoon of February 9, 1998, a hearing was conducted on outstanding motions.

28. The formal hearing commenced on February 10, 1998, and continued through February 11, 1999.

29. During the final hearing Petitioners presented the testimony of Frank Duke, Terry Hess, and George T. Webb. Petitioners offered eight exhibits.

30. Mr. Duke and Mr. Webb are employees of the County.

    
    

    Mr. Duke and Mr. Webb offered testimony concerning the impact of the Subject Amendment.

31. Mr. Hess is an employee of the Treasure Coast Regional Planning Council. Mr. Hess had previously recommended to the Treasure Coast Regional Planning Council that the Subject Amendment be found consistent with the regional plan. While Mr. Hess attempted to testify about concerns he had with the Subject Amendment during the Final Hearing, he ultimately

    testified that the Subject Amendment was, indeed, consistent with the regional plan.

32. Petitioners did not call Mr. deHaven-Smith or any other expert planner who specifically testified that the Subject Amendment is not "fairly debatable." There were, however, only 7 days following the taking of Mr. deHaven-Smith's deposition and the commencement of the final hearing, giving Petitioners little time to explore the possibility of finding another expert planner.

33. Ultimately there was no direct testimony that it was not fairly debatable that the Subject Amendment is "in compliance." While that issue was the ultimate issue to be decided in this case, nothing about this case required that such an opinion be given at the final hearing in order for Petitioners to have succeeded. Ultimately the resolution of this case turned less on the testimony at final hearing and more on a comparison of the language of the Subject Amendment with the relevant local, regional, and state plans and the Act. Had Petitioners' view of this case been correct, it could have been concluded that it was not fairly debatable that the Subject Amendment was in compliance without any witnesses rendering such an opinion.

34. When all the evidence in this case was weighed, it was apparent that Petitioners' arguments were without merit. It might even be concluded that Petitioners' arguments were frivolous but for two things: (a) the lack of time afforded by

    the Act to Petitioners to prepare for the final hearing; and (b) the somewhat unique factual circumstances of this case.

35. The unique factual circumstances of this case were that the success of Mr. Siemens' proposed development, which was the catalyst for the Subject Amendment, depended on a provision of the County's plan authorizing CRALLS designations, a designation that would likely not be found "in compliance" with the Act if subject to review today, and the fact that the proposed development was vested and, therefore, not subject to all of the clear prohibition of the County's plan against such developments in the agricultural area Mr. Siemens' property is located in.

    1. The Recommended and Final Orders.

       
       

36. On April 17, 1998, a Recommended Order was entered in this case after consideration of proposed orders filed by the parties.

37. It was determined that Petitioners had failed to meet their burden of proving that the determination that the Subject Amendment was "in compliance" was not "fairly debatable." It was, therefore, recommended that the Subject Amendment be found "in compliance" under the Act.

38. Petitioners filed "exceptions" to the Recommended Order with the Department.

39. On May 20, 1998, a Final Order was entered in this case. The Department accepted the recommendation of the

    Recommended Order to find the Subject Amendment to be "in compliance."

40. The Final Order of the Department was subsequently appealed.

41. As a result of the Final Order, the County and

    
    

    Mr. Siemens both are "prevailing parties" and Petitioners are "nonprevailing adverse parties" in this matter.

    1. The County/Siemens' Motion for Fees.

    
    

42. The County and Mr. Siemens filed the County/Siemens' Motion for Fees on March 16, 1998. The County and Mr. Siemens requested an award of attorneys' fees and costs from Petitioners pursuant to Sections 120.569(2), 120.595(1)(b) and (c), and 163.3184(12), Florida Statutes (1997).

43. The County/Siemens' Motion for Fees was filed after the final hearing in this case but before the Recommended Order was filed.

44. Subsequent to the taking of Mr. deHaven-Smith's deposition and prior to the commencement of the final hearing in this case, Mr. Siemens put Petitioners on notice that he intended to seek an award of attorneys' fees and costs from Petitioners.

45. An award pursuant to Section 120.595(1)(b), Florida Statutes (1997), may be made in a final order entered by the Department only after an administrative law judge finds that the nonprevailing party in a case "participated" in the case for an "improper purpose."

    I. Petitioners did not Participate in this Proceeding for an Improper Purpose.

    
    

46. Pursuant to Section 163.3184, Florida Statutes, Petitioners had the burden of proving that it was not "fairly debatable" that the Subject Amendment was "in compliance." This burden of proof was a substantial one.

47. Looking at the proceeding as a whole, from the filing of the petition to the final hearing of this case, and taking into account the lack of time allowed Petitioners to prepare for the final hearing and the unique factual circumstances of this case, the evidence failed to prove that Petitioners participated in this matter for an "improper purpose."

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

48. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sections 120.57(1) and 163.3184, Florida Statutes (1997). Jurisdiction is limited, however, to resolving a motion filed pursuant to Section 120.569(2)(c), Florida Statutes (1997).

    1. Burden And Standard Of Proof.

       
       

49. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Fla. 5th DCA 1988); and

    Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

50. The County and Mr. Siemens are asserting the affirmative on the issue which remains in this matter. The County and Mr. Siemens, therefore, had the burden of proving by a preponderance of the evidence that Petitioners participated in this matter for an "improper purpose."

    1. Section 120.595, Florida Statutes (1997).

       
       

51. The County and Mr. Siemens have sought an award of costs and attorneys' fees from Petitioners pursuant to Section 120.595, Florida Statutes (1997).

52. Section 120.595(1)(b), Florida Statutes (1997), provides for such an award under the following circumstances:

    (b) The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.

    
    

53. Pursuant to Section 120.595(1)(b), Florida Statutes (1997), the Department has the authority in this case to make the award requested by the County and Mr. Siemens, as "prevailing parties," payable by Petitioners, as the "nonprevailing adverse parties."

54. An award pursuant to Section 120.595(1)(b), Florida Statutes (1997), may be made only by the Department. While an administrative law judge may make a similar award pursuant to

    Sections 120.569(2)(c) or 163.3184(12), Florida Statutes (1997), an Administrative Law Judge's role pursuant to Section 120.595(1)(b), Florida Statutes (1997), is limited.

55. The role of the Administrative Law Judge pursuant to Section 120.595(1)(b), Florida Statutes (1997), is limited to a determination of whether a "nonprevailing adverse party" participated in the proceeding for an "improper purpose":

    (c) In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection and s. 120.569(2)(c). . . .

    
    

    1. "Improper Purpose."

       
       

56. Section 120.595(1)(d), Florida Statutes (1997), defines an "improper purpose" as follows:

    1. "Improper purpose" means participation in a proceeding pursuant to s.120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.

       
       

57. Section 120.569(2)(c), Florida Statutes (1997), defines an "improper purposes" to include actions of a party "to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation."

    1. Petitioners' Participation Was Not For An Improper Purpose.

    
    

58. In support of its argument that Petitioners participated in this matter for an improper purpose, the County and Mr. Siemens have argued: (a) Petitioners failed to properly

    investigate this matter before filing their petition; (b) Petitioners should have known that they could not meet the "fairly debatable" standard of proof; (c) Petitioners' discovery was inadequate; and (d) there was absolutely "no" evidence that the Subject Amendment was not "in compliance."

59. The County and Mr. Siemens' argument concerning the lack of investigation by Petitioners prior to the filing of their petition is without merit. In order to find that Petitioners "participated" in the proceedings for an improper purpose the entire proceedings must be considered and not just the activities of Petitioners prior to the filing of their petition.

60. Unlike Section 163.3184(12), Florida Statutes (1997), Section 120.595, Florida Statutes (1997), does not specifically provide that a lack of "reasonable inquiry" prior to the filing of a pleading may constitute grounds for an award of attorneys' fees and costs. Section 120.595, Florida Statutes (1997), authorizes the imposition of attorney's fees and costs based upon a nonprevailing party's "participation" in the proceeding which, in turn, requires a consideration of the entire proceeding and not just the filing of a single pleading or document.

61. Even if the filing of the petition alone could be considered improper "participation" in this proceeding under Section 120.595, Florida Statutes (1977), no award of fees and costs for the entire proceeding would be justified in this case. The County and Mr. Siemens' had a duty to challenge the petitions

    as soon as practical if it had reason to believe that the issues raised therein were frivolous. See Mercedes Lighting and Electric Supply, Inc. v. State, 560 So. 2d 272, 278 (Fla. 1st DCA 1990). The evidence in this case failed to prove that the City was not, or should not have been aware, of any shortcomings with the petitions filed in this matter sooner than the conclusion of the substantive hearing.

62. Taking into account the entire proceeding, the evidence concerning the filing of the petition is insufficient to conclude that Petitioners' participation in this matter was for an improper purpose.

63. The evidence also failed to prove that Petitioners participated in this matter for an improper purpose because of the high standard of proof imposed on Petitioners. If anything, that high standard mitigates against finding that Petitioners participated in the proceeding for an improper purpose. Because the "fairly debatable" standard is such a difficult standard to meet, it is not unusual for Petitioners to fail to prevail in these cases.

64. The evidence proved that Petitioners did not have an extensive understanding of the legal basis for the issues alleged in their petition. The evidence also proved that Petitioners' individual inquiry prior to filing their petition was not extensive. These facts, however, do not support a finding that Petitioners' entire case was without merit. Petitioners were

    represented and assisted by counsel at the hearing. A number of factual and legal issues were raised. It was not, therefore, necessary for Petitioners to have an extensive understanding of the legal issues, including the standard of proof.

65. Additionally, Chapter 163, Florida Statutes, and the rules promulgated in Chapter 9J-5, Florida Administrative Code, are, at best, difficult for anyone who first comes into contact with those provisions. They can even continue to be difficult for some of us who have been dealing with those provisions for some years. A lack of understanding of the legal issues in this matter, including the standard of proof, is not, therefore, sufficient to conclude that Petitioners participated in this matter for an improper purpose.

66. As for the discovery undertaken in this case, the fact is that none of the parties had sufficient time to prepare for the final hearing. It is not surprising that discovery was less than adequate.

67. Finally, the fact that no individual testified that the County's conclusion that the Subject Amendment was in compliance was not fairly debatable does not support a finding that Petitioners participated in this proceeding for an improper purposes. Again, there was inadequate time for Petitioners to search for an expert witness and, more importantly, no such testimony was required.

68. Based upon the foregoing, the evidence in this case failed to prove that Petitioners participation in this matter was for an "improper purpose" as those terms are defined in Section 120.595, Florida Statutes (1997).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Community Affairs enter a supplemental Final Order denying Palm Beach County and Siemens' Joint Motion for Attorneys' Fees and Costs pursuant to Section 120.595, Florida Statutes (1997).

DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.

COPIES FURNISHED:

Richard Grosso, Esquire Post Office Box 19630 Plantation, Florida 33318

Barry M. Silver, Esquire Corporate Centre, Suite 308 7777 Glades Road

Boca Raton, Florida 33434-4194

Barbara Alterman, Esquire Robert Banks, Esquire Assistant County Attorneys Post Office Box 1989

West Palm Beach, Florida 33401

Shaw Stiller, Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

C. Gary Williams, Esquire Stephen C. Emmanuel, Esquire Ausley and McMullen

Post Office Box 391 Tallahassee, Florida 32302

Steven M. Seibert, Secretary Department of Community Affairs Suite 100

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Jim Robinson, General Counsel Department of Community Affairs Suite 315

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. See Section 163.3184(9)(b), Florida Statutes (1997).

Docket for Case No: 98-000202GM

Orders for Case No: 98-000202GM