STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER DENYING ATTORNEYS' FEES

The Amended Petition for an Administrative Hearing (Amended Petition) in this case challenged a maintenance-dredging exemption granted by the Department of Environmental Protection (DEP) to Gulf Harbors Woodlands Association (the Association).

The final hearing was held in New Port Richey on December 16-17, 2009. After presentation of the evidence, the Association made an ore tenus motion to dismiss for lack of standing (renewing part of the Motion to Dismiss and/or Strike

Petition for Lack of Standing previously filed and denied). DEP took no position, and Petitioner argued in opposition. Further proceedings (transcript and proposed recommended orders) were abated pending a ruling.

Since a motion to dismiss a petition is properly directed to the sufficiency of allegations in the petition, which already had been ruled sufficient, the ore tenus motion was treated as a motion to relinquish jurisdiction under Section 120.57(1)(i), Florida Statutes, and an Order Relinquishing Jurisdiction and Closing File was entered on December 21, 2009, because "a dispute of material fact no longer exist[ed]" as to standing.

On January 6, 2010, the Association filed a Renewed Demand and Motion for Attorneys' Fees. (A Demand for Attorneys' Fees was filed on November 2, 2009, but was denied because factual disputes remained and because the Demand for Attorneys' Fees was premature under Section 120.595, Florida Statutes.) While the

earlier Demand for Attorneys' Fees cited only Section 120.595, the Renewed Demand and Motion for Attorneys' Fees also cited Section 57.105(5), Florida Statutes, as authority for an award of attorney's fees.

On January 15, 2010, Petitioner filed a Response and Opposition to the Association's Renewed Demand and Motion for Attorneys' Fees. DEP did not file a response.

On January 22, 2010, an Order on Renewed Demand and Motion for Attorneys' Fees was entered, indicating that ruling was premature and would be made after DEP took final agency action.

DEP entered its Final Order on January 28, 2010. DEP adopted the Order Relinquishing Jurisdiction and Closing File entered on December 21, 2009, dismissed the Amended Petition with prejudice, and made the Association's exemption final and effective. The Association's Renewed Demand and Motion for Attorneys' Fees is now ripe for ruling.

As Petitioner points out in her Response and Opposition to the Association's Renewed Demand and Motion for Attorneys' Fees, the Association has not complied with the procedural requirements of Section 57.105(4), Florida Statutes, and cannot recover attorney's fees under that statute (even assuming there is jurisdiction over a claim not raised prior the Order Relinquishing Jurisdiction and Closing File). See Davidson v.

Ramires, 970 So. 2d 855 (Fla. 3d DCA 2007); Burgos v. Burgos, 948 So. 2d 918, 919 (Fla. 4th DCA 2007); O'Daniel v. Bd. of Commissioners of Monroe County, 916 So. 2d 40, 41 (Fla. 3d DCA 2005).

As to Section 120.595(1), Florida Statutes, even if Petitioner clearly had no standing, she raised issues on the merits of the Association's request for a maintenance-dredging exemption that were not frivolous. Under that statute, attorney's fees and costs can be recovered only where a party's participation in a proceeding is for an "improper purpose."

§ 120.595(1)(e)1, Fla. Stat. An "improper purpose" is defined as participation in a proceeding "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing or securing the approval of an activity." Id. It is not enough for the Association to prove that there was no basis for Petitioner's allegation of standing; rather, the Association has to prove that Petitioner presented no justiciable controversy.

See Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d

42, 49-51 (Fla. 1st DCA 2000)(utilizing an objective standard under a statute to determine whether "a justiciable controversy existed under the pertinent statutes and regulations"). In contrast, it is not necessary to prove a complete absence of any justiciable controversy of law or fact under Section 57.105, Florida Statutes. See, e.g., Albritton v. Ferrera, 913 So. 2d 5, 8 (Fla. 1st DCA 2005); Wendy's v. Vandergriff, 865 So. 2d 520, 523 (Fla. 1st DCA 2003). The Association cannot prove that Petitioner's case was entirely frivolous.

For these reasons, the Association's Renewed Demand and Motion for Attorneys' Fees is denied.

DONE AND ORDERED this 2nd day of February, 2010, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2010.

COPIES FURNISHED:

Robert E. Johnson, Esquire Gray Robinson, P.A.

201 North Franklin Street, Suite 2200 Post Office Box 3324

Tampa, Florida 33601

Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Mary Zimmerman 5617 Decatur Drive

New Port Richey, Florida 34652

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 agency 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: 09-005550

Orders for Case No: 09-005550