STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE W. EAGER and CALUSA CAMP )

RESORT, INC., a Florida )

Corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6276F

) FLORIDA KEYS AQUEDUCT AUTHORITY, )

an agency of the State of Florida, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came to be heard by telephone conference call on the "Application for an Award of Attorney's Fees Pursuant to Florida Statutes Chapter 57.111" filed by Petitioners on September 30, 1991, on "Respondent's Motion to Dismiss and Response to Application for an Award of Attorney's Fees" filed October 14, 1991, on Petitioners' "Motion for Leave to File Amended Application for An Award of Attorney's Fees" filed November 6, 1991, on "Petitioners' Response to Respondent's Motion to Dismiss Application for an Award of Attorney's Fees" filed November 5, 1991, on the "Amended Application for Award of Attorney's Fees Pursuant to Florida Statutes Chapter 57.111" filed November 6, 1991, and on Respondent's statement as to its position pertaining to the amended application, which is reflected in Respondent's letter to the undersigned filed November 14, 1991 (this letter was filed after the undersigned entered a verbal ruling that the Petitioners' motion to amend its application for attorney's fees would be granted without prejudice to Respondent's assertion that the application had not been timely filed). Also considered was the copy of the Mandate issued by the Third District Court of Appeal on July 29, 1991, in the case of George W. Eager, et al. vs. Florida Keys Aqueduct Authority, etc., Case No. 89-5620.

Respondent's motion to dismiss raises the following grounds for dismissal of the application for attorney's fees:

1. The application was not timely filed.

2. The Petition does not comply with the requirements of Rule 22I-6.035.

3. DOAH has no jurisdiction to award appellate attorney's fees.

4. Petitioners are not small business parties.

5. Respondent's actions were substantially justified.

6. Circumstances exist which would make the award of fees and costs unjust.

7. The provisions of Section 57.111, Florida Statutes, are inapplicable to this proceeding.

The motion to dismiss also asserts that the late-filed application has no substantial justification in law or fact and that sanctions in the form of costs and attorneys fees should be awarded to Respondent pursuant to Section 120.57(1)(a)5., Florida Statutes.

For the reasons that follow, the only issue to be considered in disposing of the motion to dismiss is whether the application was timely filed.

Disposition of the other grounds for dismissal raised by the motion to dismiss should not be made until after an evidentiary hearing to resolve any disputed issues of fact pertaining to those issues. Because it is concluded that the application was not timely filed and that the proceeding should be dismissed, the other issues raised by the motion are moot.

The facts pertinent to the timeliness issue are not in dispute. On August 17, 1990, the Florida Keys Aqueduct Authority (the agency) entered a Final Order (which was consistent with the Recommended Order entered by the undersigned Hearing Officer on July 30, 1990) which was adverse to the interests of the George W. Eager and Calusa Camp Resort, Inc. (petitioners). Petitioners appealed this matter to the Third District Court of Appeal which reversed the agency's Final Order. In their initial application for fees and costs, petitioners contend that they became prevailing parties when the Third District Court of Appeal issued its mandate on July 29, 1991. The initial "Application for an Award of Attorney's Fees Pursuant to Florida Statutes Chapter 57.111" was filed September 30, 1991.

Section 57.111(4)(b), Florida Statutes, provides, in pertinent part:

1. To apply for an award under this section, the attorney for the prevailing small business party must submit an itemized affidavit to the ... Division of Administrative Hearings ....

2. The application for an award of attorney's fees must be made within 60 days after the date that the small business party becomes a prevailing small business party.

Rule 22I-6.035(1), Florida Administrative Code, provides, in pertinent part, as follows:

(1) Any small business party asserting entitlement to attorney's fees and costs under The Florida Equal Assess to Justice Act shall file a petition for costs and fees with the Division of Administrative Hearings within sixty

(60) days after becoming a prevailing small business party within the meaning of the Act. ... (emphasis added)

Rule 22I-6.003(1), Florida Administrative Code, provides as follows:

(1) In construing these rules or any order of a Hearing Officer, filing shall mean received by the Office of the Clerk during normal business hours or by the Hearing Officer during the course of a hearing.

The mandate was issued by the Third District Court of Appeal on July 29, 1991. To have been filed with DOAH within sixty days of becoming prevailing parties as required by Section 57.111(4)(b), Florida Statutes, the application would have had to have been filed before the close of business on Friday, September 27, 1991. The application was not filed until Monday, September 30, 1991.

In their initial response to the motion to dismiss, Petitioners correctly argue that they became prevailing parties when the mandate issued and cite Thibodeau v. Sarasota Memorial Hospital, 449 So.2d 297 (Fla. 1st DCA 1984), Tierney v. Tierney, 290 So.2d 136 (Fla. 2nd DCA 1974), and State, ex rel. Price

v. McCord, 380 So.2d 1037 (Fla. 1980) in support of their contention. In Thibodeau, supra at 298, the Court stated:

It is well settled that the judgment of an appellate court, where it issues a mandate, is a final judgment. ...

Further, the fact that claimant may attempt to secure discretionary review by the Florida Supreme Court should not avoid the finality of an appellate court's judgment in the absence of a stay ordered by the appellate court. (Emphasis in the original, citations omitted)

In their subsequent arguments, Petitioners raise four points that must be resolved.

First, Petitioners argue that they are entitled to additional time because the mandate was served on them by mail. This position should be rejected because the time constraints are established by statute, and neither the Florida Rules of Civil Procedure, the Florida Rules of Appellate Procedure, nor the rules of DOAH extend that time period.

Second, Petitioners argue that the 60 day time period does not begin to run until their receipt of the mandate. This contention is rejected because the very cases cited by Petitioners in their initial response establish that Petitioners became prevailing parties on the date the mandate was issued. The time runs from the date the Petitioners became prevailing parties, not on the date Petitioners received their copy of the mandate.

Third, Petitioners argue that Respondent's unsuccessful efforts to invoke the jurisdiction of the Florida Supreme Court to review the decision of the Third District Court of Appeal should act to toll the running of the sixty day period. There was no stay of proceedings issued in this matter and there is no automatic stay when a party seeks to invoke the discretionary jurisdiction of

the Florida Supreme Court. Consequently, the third issue must be resolved against petitioners.

Fourth, Petitioners argue that the agency has not issued a revised final order as required by the mandate and that they will not be prevailing parties until it does so. The opinion of the Third District Court of Appeal reverses the action taken by the agency in its final order. No further action is required by the agency. Consequently, the fourth argument should also be rejected.

That the principle of equitable tolling may be applied in administrative proceeding to toll limitation periods set by agency rule has been established by Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988), and by Stewart v. Department of Corrections, 561 So.2d 15 (Fla. 4th DCA 1990). See also, State Department of Environmental Regulation v. Puckett Oil, 577 So.2d 988 (Fla. 1st DCA 1991) and General Motors Corp. v. Gus Machado Buick and DHSMV, 16 FLW 1574 (Fla. 1st DCA 1991).

Although these cases clearly establish a trend toward the application of the principle of equitable tolling in cases involving filings that narrowly miss the deadlines established by rules of an agency or deadlines that are not clearly established by statute, these cases have not extended the application of the doctrine to a limitation period as clearly established as that found in Section 57.111(4)(b), Florida Statutes. It is concluded that it would be inappropriate for a Hearing Officer of the Division of Administrative Hearings to extend the application of the principle of equitable tolling to permit the request for attorney's fees to be filed more than sixty days from the date that Petitioners became prevailing parties.

Based on the foregoing, it is concluded that the application for fees and costs must be dismissed because the application was not filed within the time required by statute. It is also concluded that costs and fees should not be awarded to Respondent pursuant to Section 120.57(1) (a)5, Florida Statutes, because the issues raised by Petitioners are not devoid of merit. The premises considered, it is

ORDERED THAT the application for attorney's fees filed by Petitioners be DISMISSED on the grounds that the initial application was not timely and Respondent's request for fees and costs pursuant to Section 120.57(1)(a)5, Florida Statutes, is DENIED.

DONE AND ORDERED this 6th day of January, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 6th day of January, 1992.

COPIES FURNISHED:

Gus H. Crowell, Esquire GUS H. CROWELL, P.A.

P. O. Box 777

Tavernier, Florida 33070

Robert T. Feldman, Esquire Florida Keys Aqueduct Authority

P. O. Box 1239

Key West, Florida 33040

Lynne Hankins-Fielder, Esquire BROWNING, GULLER & ASSOCIATES, P.A.

402 Appelrough Lane

Key West, Florida 33040

Paul Ezatoff, Esquire

KATZ, KUTTER, HAIGLER, ALDERMAN, DAVIS, MARKS & RUTLEDGE, P.A.

P. O. Box 1877

Tallahassee, Florida 32302-1877

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 FAILING 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 RENDITIONS OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

=================================================================

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

GEORGE W. EAGER and CALUSA CAMP RESORT,

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1992

Appellants,

vs. CASE NO. 92-222

DOAH CASE NO. 91-6276F

FLORIDA KEYS AQUEDUCT AUTHORITY,

Appellee.

/ Opinion filed August 11, 1992.

An Appeal from a final administrative order. Gus H. Crowell, for appellants.

Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge and Paul R. Ezatoff, for appellee.

Before NESBITT, FERGUSON, and GODERICH, JJ.

PER CURIAM.

George W. Eager and Calusa Camp Resort appeal the entry of a final order dismissing their application for attorney's fees as untimely. We reverse the order under review upon our finding that the application was timely filed.

Florida Keys Aqueduct Authority sought system development fees from appellants, George W. Eager and Calusa Camp Resort. Following an administrative hearing, an order was issued in the Authority's favor. This court reversed that decision and filed an opinion, July 29, 1991, finding no system development fees could be collected. Eager v. Florida Keys Aqueduct Auth., 580 So.2d 771 (Fla.

3d DCA), review denied, 591 So.2d 181 (Fla. 1991). Appellants claim the mandate making them the prevailing parties was received by counsel July 30, 1991, and their application for attorney's fees as the prevailing parties filed September 26, 1991 was therefore timely. The Florida Division of Administrative Hearings acknowledged receipt of the application September 30, 1991. The Division treated the application as a new case and assigned a new case number.

Thereafter, the Authority requested dismissal of the application for attorney's fees as untimely. Subsequently, a hearing officer entered a final order, dismissing the application for attorney's fees.

Both section 57.111(4)(b)(2), Florida Statutes, 1991 1/ and Rule 22I-

1. 2/ require a petition for fees to be made within 60 days of a small business becoming a prevailing party. 3/ Further, Florida Administrative Code Rule 22I-6.002 4/ provides for five additional days when service is by mail. The motion for fees was made to the agency within sixty-three days after the issuance of this court's mandate. Considering the additional five days permitted by the Code's own rule, the fees request should not have been dismissed as untimely.

   
   

   Accordingly, the order under review is reversed and the cause remanded.

   ENDNOTES

   
   

   1/ Section 57.111(4)(b)(2), Florida Statutes (1991) provides:

   The application for an award of attorney's fees must be made within 60 days after the date that the small business party becomes a prevailing small business party.

   
   

   2/ Rule 22I-6.035(1) of the Florida Administrative Code provides:

   1. Any small business party asserting entitlement to attorney's fees and costs under The Florida Equal Access to Justice Act shall file a petition for costs and fees with the Division of Administrative Hearings within sixty (60) days after becoming a pre- vailing small business party within the meaning of the Act.

3/ Section 57.111(3) provides, in pertinent part:

1. A small business party is a "prevailing small business party" when:

   1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired[.]

4/ Florida Administrative Code Rule 22I-6.002, provides: Computation of Time. In computing any period of time prescribed or allowed by these rules, by order of a Hearing Officer, or by an applicable statute, the date of the act from which the designated period of time begins to run shall not be included. . . . Five days may be added to prescribed time limits when service is made by mail.

================================================================= DISTRICT COURT REMAND

=================================================================

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1992 SEPTEMBER 4, 1992

GEORGE W. EAGER, et al.,

Appellant(s), CASE NO. 92-00222

LOWER

vs. TRIBUNAL NO. 91-6276F

FLORIDA KEYS AQUEDUCT AUTHORITY, etc.

Appellee(s).

/

Upon consideration of the motion for attorney's fees filed by counsel for the appellants, it is ordered that said motion is granted and remanded to the Division of Administrative Hearings for determination of the amount.

A True Copy ATTEST:

LOUIS J. SPALLONE

Clerk District Court of Appeal Third District

By: Deputy Clerk

cc: Gus H. Crowell Robert T. Feldman Lynne Hankins-Fielder Paul Ezatoff Kimberly Ghent

/NB

================================================================= DISTRICT COURT REMAND

=================================================================

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1992 OCTOBER 27, 1992

GEORGE W. EAGER, et al., ** CASE NO. 92-00222

Appellant(s), **

vs. **

FLORIDA KEYS AQUEDUCT ** LOWER

AUTHORITY, etc., TRIBUNAL NO. 91-6276

Appellee(s). **

Appellee's motion for rehearing is granted in part. The order of this court entered September 4, 1992 awarding attorney's fees is vacated. Upon consideration of appellants' motion for appellate counsel fees, it is ordered that said motion is granted and remanded to the Division of Administrative Hearings for determination on the condition that appellants ultimately prevail in the instant action. In all other respects, the appellee's motion for rehearing is denied.

It is so ordered.

A True Copy ATTEST:

LOUIS J. SPALLONE

Clerk District Court of Appeal, Third District

By:

Deputy Clerk

cc: Gus H. Crowell Robert T. Feldman Lynne Hankins-Fielder Paul Ezatoff Kimberly Ghent

/NB

================================================================= DISTRICT COURT MANDATE

=================================================================

MANDATE

DISTRICT C0URT 0F APPEAL THIRD DISTRICT

DCA# 92-222

GEORGE W. EAGER, et al.

vs.

FLORIDA KEYS AQUEDUCT AUTHORITY, etc.

This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.

Case No. 91-6276F

WITNESS, The Honorable ALAN R. SCHWARTZ

Chief Judge of said District Court and seal of said Court at Miami, this 12th day of NOVEMBER, 1992

Clerk District Court of Appeal of Florida, Third District

=================================================================

DIVISION FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE W. EAGER, and )

CALUSA CAMP RESORT, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 91-6276F

) FLORIDA KEYS AQUEDUCT AUTHORITY, )

)

Respondent. )

)

FINAL ORDER

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 April 14, 1993, in Key Largo, Florida.

APPEARANCES

For Petitioners: Gus H. Crowell, Esquire

Gus. H. Crowell, P.A. Post Office Box 777 Tavernier, Florida 33070

For Respondent: Paul R. Ezatoff, Esquire

Katz, Kutter, Haigler, Alderman Davis, Marks & Bryant, P.A.

106 East College Avenue, Suite 1200 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Petitioners are entitled to an award of attorney's fees under the provisions of Section 57.111, Florida Statutes, whether each Petitioner is entitled to a separate award, and whether Petitioners are entitled to an award of attorneys fees for an appeal.

PRELIMINARY STATEMENT

The Florida Keys Aqueduct Authority (FKAA) assessed certain system development fees against Petitioner George W. Eager for certain improvements Petitioners had made to certain campground property owned by Petitioner Eager and leased to Petitioner Calusa Camp Resort, Inc. Petitioners timely challenged the assessment and the matter was referred to the Division of Administrative Hearings and assigned Case No. 89-5620. Following formal hearing, a Recommended Order was entered which recommended that the system development fee be sustained. Thereafter, the FKAA entered a Final Order which sustained the system development fee. Petitioners appealed the Final Order entered by FKAA. In the case of Eager v. Florida Keys Aqueduct Authority, 580, So.2d 771 (Fla. 3d DCA 1991), rev. denied, 591 So.2d 181 (1991), the said final order was reversed.

Thereafter, the Petitioners filed the instant petition for attorney's fees pursuant to the provisions of Section 57.111, Florida Statutes. The FKAA moved to dismiss the Petition as being untimely, and a final order was entered which granted the motion to dismiss. Petitioners thereafter appealed the final order of dismissal to the Third District Court of Appeal which reversed the final order of dismissal, finding that the Petition was timely filed when mailing time is considered. Following this second decision from the Third District Court of Appeal, Petitioners filed a motion for attorney's fees and costs with the Third District Court of Appeal pertaining to the second appeal. The motion was conditionally granted by the Third District Court of Appeal, and the parties agreed that the issues pertaining to attorney's fees for the second appeal would be determined in this proceeding. This hearing followed.

At the formal hearing, the parties stipulated that the amount of attorney fees charged by Petitioners' counsel, as reflected by the affidavits that were filed, are reasonable. This stipulation was accepted by the undersigned. On appropriate motion, the undersigned took official recognition of the underlying proceeding in DOAH Case 89-5620, including the pleadings, the transcript, and the exhibits. The undersigned also took official recognition of the opinions and order of the Third District Court of Appeal discussed above. Petitioners presented the testimony of George W. Eager and presented five exhibits, each of which was accepted into evidence. Respondent presented the testimony of Acelia Plans and offered seven exhibits. Five of Respondent's exhibits were exhibits in the underlying proceeding. Because official recognition of those exhibits had been taken, it was unnecessary to accept those proffered exhibits as separate exhibits in this proceeding. The remaining exhibits offered by Respondent were accepted into evidence.

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 parties' proposed findings of fact may be found in the Appendix to this Final Order.

FINDINGS OF FACT

1. Respondent is a state agency whose primary purpose is to provide an adequate supply of potable water to the Florida Keys. Chapter 76-441, Laws of Florida, Respondent's enabling act, conferred upon Respondent the authority to impose the System Development Fee that was at issue in the underlying proceeding.

   
   

2. At the times pertinent to this proceeding and to the underlying proceeding, Petitioner George W. Eager was the owner of approximately 30 acres of real property located within the area served by Respondent. Mr. Eager leased this property to Petitioner, Calusa Camp Resort, Inc., (Calusa) a closely held Florida corporation whose stock was owned by Mr. Eager and his two children.

   The property has been zoned commercially at all times pertinent to this proceeding. There is a written lease of the premises which reflect that all improvements on the real property will become the exclusive property of Mr. Eager at the termination of the lease agreement.

   
   

3. Calusa operated a campground on this real property which accommodates every type of camping, ranging from camping in large recreational vehicles to camping in tents or sleeping bags. At the times pertinent hereto, the premises contained campsites with electrical and water hookups, a grocery store, a marina, laundry facilities, bathrooms and showers, a swimming pool, a sewage treatment plant, and a sewage pumping station. Calusa held two business licenses at the time of the formal hearing in the underlying proceeding, one license for the operation of the campground and the other one for the operation of a grocery store on the property.

   
   

4. In December 1974, Respondent enacted by rule a System Development Fee, which was an impact fee to be charged to new or existing customers who modify, add or construct facilities which impose a new potential demand on Respondent's water system. For single or multiple commercial units, the System Development Fee was imposed on a per "unit" basis. The term "unit" was defined by a rule adopted by Respondent. At issue in DOAH Case No. 89-5620 was whether Petitioners owed a system development fee for 97 campsites that were jointly added to the property after 1974 by Mr. Eager and Calusa. Both Petitioners paid part of the costs and performed part of the work that was necessary to add these additional campsites.

   
   

5. Respondent's Rule 48-3.002(1) expressed the purposes of the System Development Fee as follows:

   
   

   1. The System Development Fee is an impact fee charged to new and existing customers who modify, add or construct facilities which impose a potential increased demand on the water system. This fee is charged in order to equitably adjust the fiscal burden of a new pipeline and expanded or improved appurtenant facilities between existing customers and new water users. All system development fees are allocated to the direct and indirect costs of capital

      improvements made necessary by actual and expected increased demand on the water system.

      
      

6. Respondent's Rule 48-3.002(5)(b) provided for the assessment of the System Development Fee on a per unit basis, in pertinent part, as follows:

   
   

   5. (b) Where the premises served consists of single or multiple commercial units, the System Development Fee shall be assessed based on each individual unit. . . .

   
   

7. The term "unit", as used in Respondent's System Development Fee Rule is a technical term, that was defined by Respondent's Rule 48-2.001(19) as follows:

   
   

   (19) "Unit" A unit is a commercial or residential module consisting of one or more rooms with either appurtenant or common bathroom facilities and used for a single commercial purpose or single residential use.

   
   

8. The number of units existing in a multiple unit service operation were to be determined in accordance with Rule 48-2.007(1)(c), which provided, in pertinent part, as follows:

   
   

   . . . The number of units, whether residential or commercial, will normally be determined according to applicable city or county occupational licenses, building permits, or plans of the subject structure. In cases of discrepancy or inconsistency in definition, or interpretation, the following Florida Keys Aqueduct Authority definition will control:

   A unit is a commercial or residential module consisting of one or more rooms with either appurtenant or common bathroom facilities and used for a single commercial purpose or single residential purpose.

   
   

9. Mr. Eager opened the campground in 1969, at which time he entered into a contract for services with Respondent. Mr. Eager constructed a private water system as part of the improvements to his real property. This private water system was connected to the FKAA's water transmission system in 1969.

   
   

10. At all times pertinent to these proceedings, the contract for the provision of water to the subject property was between Mr. Eager and FKAA. Calusa has paid all water bills and other utilities since it first leased the property from Mr. Eager. All billings, including the billings for monthly service and the billing for the assessment that was at issue in the underlying proceeding, were in Mr. Eager's name. On April 26, 1989, the FKAA assessed Mr. Eager's account a System Development Fee in excess of $200,000 for the improvements to the campgrounds that Mr. Eager and Calusa had jointly made as part of Calusa's operations. It was the practice of the FKAA as of April 26, 1989, to only charge system development fees to customers with whom it had a contract, in this case, George Eager. FKAA has never billed Calusa for the system development fees which were the subject of the prior proceeding.

    
    

11. Respondent's Board of Directors upheld the assessment of the System Development Fee at a duly called meeting. Petitioners thereafter filed a timely request for formal hearing, and the matter was referred to the Division of

    Administrative Hearings and assigned Case No. 89-5620. The original Petition in the underlying action was filed on behalf of both Petitioners. No objection to either of the Petitioners being a party to the proceeding was made by Respondent. Paragraph 10 of Petitioners' Petition filed in Case No. 89-5620 alleged that each Petitioner had substantial interests affected by the Respondent's assessment of the system development fee. Those allegations were admitted in paragraph 10 of Respondent's Answer.

    
    

12. Following the formal hearing in DOAH Case No. 89-5620, a Recommended Order was entered which recommended that the subject assessment be sustained. Thereafter, Respondent entered a Final Order which adopted the recommendation contained in the said recommended order.

    
    

13. Petitioners appealed the Final Order entered by the FKAA. In the case of Eager v. FKAA, 580, So.2d 771 (Fla. 3d DCA 1991), rev. denied, 591 So.2d 181 (1991), the said final order was reversed with the court finding, in part, as follows at 772:

    
    

    We find no ambiguity in the Authority's definition of "units". Under the stated definition, no reclassification is justified for Calusa's campsites. Because we determine that any fee assessed against Calusa must be based on the express, unambiguous terms contained in the Authority's rules, we do not address the other issues raised on appeal. Accordingly, we reverse.

    
    

14. There was no evidence that a motion for attorney's fees and costs was filed with the appellate court for that first appeal.

    
    

15. Thereafter, Petitioners filed the instant proceeding with the Division of Administrative Hearings pursuant to Section 57.111, Florida Statutes. Respondent's motion to dismiss the proceeding was granted on the finding that the petition for fees and costs had not been timely filed. Thereafter, Petitioners successfully appealed the order of dismissal. Petitioners filed a motion for attorney's fees and costs with the Third District Court of Appeal in connection with this second appeal. In the second appeal (Case No. 92-00222) the Third District Court of Appeal entered an order on October 27, 1992, which provided, in pertinent part, as follows:

    
    

    . . . Upon consideration of appellants' [Petitioners] motion for appellate counsel fees, it is ordered that said motion is granted and remanded to the Division of Administrative Hearings for determination on the condition that appellants ultimately prevail in the instant action.

    
    

16. The parties agreed that the issue of attorney's fees and costs for the second appeal would be determined in this proceeding.

    
    

17. As of April 26, 1989, Mr. Eager was not a corporation or business organization, operated no business under his own name or a fictitious name, had no employees, had no office separate from Calusa, and had no business or professional licenses. Mr. Eager's claim to "small business party" status is based on his lease of real property to Calusa Camp Resort, Inc. and his management of other parcels of property he owned in his individual name. Mr. Eager maintained separate bank accounts and financial records from Calusa.

18. Mr. Eager had a net worth at all times pertinent hereto of less than two million dollars. Calusa had a net worth at all times pertinent hereto of less than two million dollars.

    
    

19. The bills from Petitioners' counsel were addressed only to Mr. Eager. Mr. Eager testified, without contradiction, that there was a verbal agreement between himself and his corporation that each would be responsible for one-half of the attorney's fees and costs incurred in challenging the assessment of the system development fees.

    
    

20. The amount of the fees incurred was stipulated to be reasonable and is as follows:

    
    

    1. $41,970.00 for the underlying proceeding;

    2. $8,697.50 for the Petition on Fees;

    3. $3,325.00 for the second appeal on the timeliness issue.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding.

    
    

22. Section 57.111, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. This section may be cited as the "Florida Equal Access to Justice Act."

    2. 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.

    3. As used in this section:

    1. The term "attorney's fees and costs" means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding.

    2. The term "initiated by a state agency" means that the agency:

       * * *

       2. Filed a request for an administrative hearing pursuant to chapter 120 ...

    3. A small business party is a "prevailing small business party" when:

       1. A final judgment or order has been entered in favor of the small business party . . .

          * * *

    4. The term "small business party" means:

       1. 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; or

       b. A partnership or corporation ... which has its principal office in this state and 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 . . .

    5. 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.

    (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.

    * * *

    (d)2. No award of attorney's fees and costs for an action initiated by a state agency shall exceed

    $15,000.

    
    

23. Respondent contends that Mr. Eager should not be construed to be a "small business party" because he is not the sole proprietor of an unincorporated business.

    
    

24. The definition of the term "business" contained in Black's Law Dictionary, Fifth Edition, includes the following

    
    

    Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. . . .

    Activity or enterprise for gain, benefit, advantage or livelihood. . . . Enterprise in which person engaged shows willingness to invest time and capital on future outcome. . . . That which habitually busies or occupies or engages the time, attention, labor, and efforts of persons as a principal serious concern or interest or for livelihood or profit. (Citations omitted.)

    
    

25. In comparison, the definition of the term "business" contained in Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, includes the following:

    
    

    . . . employment; occupation; profession; calling; vocation; means of livelihood; that which occupies the time, attention, and labor of men, for the purpose of profit or improvement . . .

26. In considering the foregoing definitions of the term "business," the remedial purpose of the Equal Access to Justice Act, and the convincing evidence as to Mr. Eager's activities as the owner and landlord of the subject premises, it is concluded that Mr. Eager is "the sole proprietor of an unincorporated business" within the meaning of the Act. Calusa is a corporation as that term is used in the Act. The evidence established that at all times pertinent to this proceeding, both Mr. Eager and Calusa have had their principal offices in Florida, employed fewer than 25 employees, and had a net worth of less than $2 million. It is concluded that both Mr. Eager and Calusa are small businesses within the meaning of the Act.

    
    

27. By virtue of the Third District Court's decision in Eager v. Florida Keys Aqueduct Authority, supra, both Petitioners became prevailing parties in the underlying proceeding.

    
    

28. Respondent asserts that it was substantially justified in imposing the assessment that was at issue in the underlying proceeding. The finding of the Court in that proceeding that the subject rules are not ambiguous and do not justify the imposition of the subject fees based on "the express, unambiguous terms contained in the Authority's rules" became the law of this case and precludes the conclusion that the agency was substantially justified in proceeding with the assessment.

    
    

29. The maximum award that may be assessed against an agency under the Act is $15,000. See, Section 57.111(4)(d)2., Florida Statutes. While it is concluded that Mr. Eager and Calusa are each prevailing small business parties under the Act, the proceeding below was based on one indivisible assessment that was made against Mr. Eager, and no independent claim was made against Calusa. Both parties litigated a single, indivisible assessment using a single attorney. It is, therefor, concluded that the maximum fee that can be awarded against the agency for the action FKAA initiated by assessing the fee against Mr. Eager is the sum of $15,000. The Petitioners are not entitled to separate awards of

    $15,000.00 under the Act. See, Department of Insurance and Treasurer v. The Administrators Corporation, 603 So.2d 1359 (Fla. 1st DCA 1992). It is further concluded that Petitioners are not entitled under the Act to a separate award of attorney's fees and costs for the subsequent appeal of DOAH proceeding 89-5620 because the provisions of Section 57.111(3)(a), Florida Statutes, provide that term "attorney's fees and costs" as used in the Act means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding. The $15,000 maximum fee includes costs and fees that were incurred on appeal of the underlying proceeding.

    
    

30. Section 57.111(6)(a), Florida Statutes, provides that the Act does not apply to a proceeding involving the establishment of a rate. Respondent contention that the proceeding in DOAH Case No. 89-5620 should be construed to be a proceeding involving the establishment of a rate is without merit and should be rejected.

    
    

31. Petitioners are entitled to an award of attorney's fees and costs for the second appeal by virtue of the Order entered by the Third District Court of Appeal granting the motion for appellate fees. Because of the rulings made herein the Petitioners have prevailed in this fees proceeding and the condition precedent to the award of costs and fees contained in the Third District Court of Appeal's Order has been met. Consequently, it is concluded that Petitioners are entitled to an award of attorney's fees and costs in the amount of $3,325.00 (the amount to which the parties stipulated) for the second appeal.

32. Finally, Petitioners contend that they are entitled to an award of attorney's fees and costs for bringing this action under the Act. The instant proceeding was not "initiated by a state agency" as that term is defined in Section 57.111(3)(b), Florida Statutes, and used in Section 57.111(4)(a), Florida Statutes. Consequently, it is concluded that Petitioners are not entitled to an award of attorney's fees under the Act for bringing the instant action.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Respondent pay to Petitioners attorney's fees and costs in the

amount of $15,000.00 for DOAH Case No. 89-5620 and that Respondent pay to

Petitioners attorney's fees and costs in the amount of $3,325.00 pursuant to the order entered by the Third District Court of Appeal on October 27, 1992, in Case No. 92-00222.

DONE AND ORDERED this 30th day of July, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 30th day of July, 1993.

APPENDIX TO THE FINAL ORDER, CASE NO. 91-6276F

The following rulings are made on the proposed findings of fact submitted by Petitioners. The proposed findings are in paragraphs 6-20 of the proposed final order submitted by Petitioners.

1. The proposed findings of fact in paragraphs 6, 8, 10, 11, 12, 17, 19, and 20 are adopted in material part by the Final Order.

2. The proposed findings of fact in paragraphs 7, 9, and 13 are adopted in part by the Final Order or are being subordinate to the findings made.

3. The proposed findings of fact in paragraph 14 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraph 15 are subordinate to the findings made.

5. The proposed findings of fact in paragraphs 16 and 18 are adopted in part by the Final Order and are rejected in part as being speculative.

The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings are in paragraphs 6-20 of the proposed final order submitted by Petitioners.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, and 15 are adopted in material part by the Final Order.

2. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order or are subordinate to the findings made.

3. The proposed findings of fact in paragraph 14 are rejected as being contrary to the findings made.

COPIES FURNISHED:

Gustav H. Crowell, Esquire Tittle & Tittle

Post Office Box 535 Tavernier, Florida 33070

Paul R. Ezatoff, Esquire

106 East College Avenue Suite 1200

Tallahassee, Florida 32301

Robert T. Feldman, Esquire Florida Keys Aqueduct Authority Post Office Box 1239

Key West, Florida 33040-1239

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: 91-006276F

Orders for Case No: 91-006276F