STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. GREGORY RUCK,

   
   

   Petitioner,

   
   

   vs.

   
   

   BOARD OF PROFESSIONAL ENGINEERS,

   
   

   Respondent.

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   ) Case No. 05-2033RX

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   FINAL ORDER ON ATTORNEY'S FEES

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether Petitioner is entitled to attorney's fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.

   PRELIMINARY STATEMENT

   
   

   The undersigned entered a Final Order in the above-styled case on November 23, 2005. In that Final Order, the undersigned retained jurisdiction to determine Petitioner, D. Gregory Ruck's entitlement to attorney's fees and costs pursuant to Section 120.595(3), Florida Statutes.

   On December 13, 2005, Petitioner filed a Motion for Attorney's Fees pursuant to Section 120.595(3), Florida Statutes, and an Affidavit Regarding Reasonableness of Attorney's Fees and Costs Affidavit. Respondent did not file

   any response in opposition to the Motion for Attorney's Fees.1/ There being no opposition to the motion, this matter is determined on the pleadings.2/

   FINDINGS OF FACT

   
   

   1. Petitioner, D. Gregory Ruck, challenged Florida Administrative Code Rule 61G15-20.006(2), as a result of Respondent's denial of his application for licensure. By Final Order issued November 23, 2005, Petitioner was the prevailing party in the above-styled case.

   2. Petitioner made his first formal demand for attorney's fees and costs in his Petition for an Administrative Determination of the Invalidity of Rule 61G15- 20.006(2) which initiated this proceeding.

   3. On December 13, 2005, Petitioner filed a Motion for Attorney's Fees and filed an Affidavit Regarding Reasonableness of Attorney's Fees and Costs on December 13, 2005. Petitioner seeks to recover $13,145 in fees. The content of the Motion and the Affidavit address fees only and do not address costs.

   4. By way of filing the Affidavit, Petitioner presented competent evidence that the requested attorney's fees were reasonable based upon the hourly rate charged, in that the hourly rate charged is within the standard market rates for the experience level of the attorney involved, the complexity

      of the work involved, and the caliber of the services provided in this case.

   5. By way of the Affidavit, Petitioner presented competent evidence that the amount of time expended by Petitioner's counsel in the services performed on behalf of Petitioner in pursuing this rule challenge was reasonable.

   6. Respondent presented no evidence showing that its actions were substantially justified in that there was a reasonable basis in law or fact at the time the actions were taken by the agency. Respondent presented no evidence showing that special circumstances exist which would make the award unjust.

   7. Further, Respondent did not file any challenge or opposition to the reasonableness of the amount requested in the Motion for Attorney's Fees.

      CONCLUSIONS OF LAW

      
      

   8. Subsection 120.595(3), Florida Statutes, reads in pertinent part as follows:

      (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION 120.56(3).- If the court or administrative law judge declares a rule or portion of a rule invalid pursuant to s. 120.56(3), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency's actions are

      'substantially justified' if there was a reasonable basis in law and fact at the time the actions were taken by the agency....No award of attorney's fees as provided by this subsection shall exceed

      $15,000.

      
      

   9. Petitioner presented evidence that the requested attorney's fees were reasonable based upon the hourly rate charged and the amount of time expended.

   10. Respondent presented no evidence showing that its actions were substantially justified in that there was a reasonable basis in law or fact at the time the actions were taken by the agency.

   11. Respondent presented no evidence that special circumstances exist which would make the award unjust.

   12. Accordingly, Petitioner is entitled to recover

$13,145 in attorney's fees pursuant to Section 120.595(3), Florida Statutes.

ORDER

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

ORDERED:

The Motion for Attorney's Fees is granted, and Petitioner is awarded $13,145 in attorney's fees.

DONE AND ORDERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida.

S

___________________________________ BARBARA J. STAROS

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 25th day of January, 2006.

ENDNOTES

1/ Florida Administrative Code Rule 28-106.204 provides parties with an opportunity to file responses in opposition to motions.

2/ All references to the Florida Statutes will be to Florida Statutes 2005, unless otherwise indicated.

COPIES FURNISHED:

Edwin A. Bayo, Esquire Gray Robinson, P.A. Post Office Box 11189

Tallahassee, Florida 32302-3189

Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Josefina Tomayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Doug Sunshine, Esquire

Vice President for Legal Affairs

Florida Engineers Management Corporation 2507 Callaway Road

Tallahassee, Florida 32303-5267

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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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: 05-002033RX

Orders for Case No: 05-002033RX