STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7073F

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and )

S. A. WILLIAMS CORPORATION, )

)

Respondents. )

)

FINAL ORDER

A formal hearing was held pursuant to notice in the above- styled cause before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on May 10, 1995, in Brooksville, Florida.

APPEARANCES

For Petitioner: Robert Bruce Snow, Esquire

20 North Main Street, Room 462 Brooksville, Florida 34601

For S. A. Joseph G. Thresher, Esquire

Williams Corp.: 501 East Kennedy Boulevard, Suite 725 Tampa, Florida 33602

For Southwest Mark F. Lapp, Esquire Florida Water James A. Robinson, Esquire

Management Southwest Florida Water Management District District: 2379 Broad Street

Brooksville, Florida 34609-6899 STATEMENT OF THE ISSUE

The general issue is whether S. A. Williams should be awarded attorney's fees and expenses in the above styled cause pursuant to Section 120.57(1)(b)5. or Section 57.111(4)(b)2., Florida Statutes, and, if so, in what amount?

PRELIMINARY STATEMENT

This case arose from a motion for attorney's fees made by S.

1. Williams Corporation in Case Number 93-4212 of the Division of Administrative Hearings. The style of the former case was retained for this case because it is a collateral proceeding; however, the movant, S. A. Williams Corporation, has the burden to go forward and the burden of proof on the issues presented.

   
   

   At the formal hearing in Case Number 93-4212, S. A. Williams Corporation (hereafter Williams) moved to dismiss the petition filed by Hernando County for lack of standing on the basis that the County was not substantially affected by the Water Management District's decision to issue a surface water drainage permit to Williams. After hearing the argument of counsel and being fully advised in the premises, the undersigned hearing officer recommended that the County's petition be dismissed. The Water Management District adopted the recommendation in its Final Order dated December 20, 1993, which was appealed by the County, and affirmed per curiam without opinion in Hernando County v.

   Southwest Florida Water Management District, 647 So. 2d 124, (Fla. 5th DCA 1994).

   
   

   At the formal hearing, Williams moved for the award of attorney's fees and expenses from the County after argument on the motion to dismiss the County's petition. Thereafter, Williams filed a written motion for the award of attorney fees and expenses, and jurisdiction was retained to consider that motion on its merits when the recommended order was entered.

   This case was established to consider Williams' motion which is treated as a collateral fact finding proceeding. Consideration of the motion was abated pending resolution of the appeal of the Water Management District's Final Order.

   
   

   In January, 1993, Williams amended its motion for attorney's fees to include consideration pursuant to both Section 120.57(1)(b)5. and Section 57.111(4)(b)2., Florida Statutes.

   Thereafter, the case was set for hearing on May 10, 1995. The parties agreed to the submission of affidavits regarding the reasonableness of the attorney's fees, but testimony was presented on the issue of whether the County's original petition was improper or frivolous. The record in this case includes the record in Case Number 93-4212, the record on appeal, and those exhibits introduced at hearing.

   
   

   Both Williams and the County filed proposed orders which were read and considered. The Appendix to this order states which of their findings were adopted, and which were rejected and why.

   FINDINGS OF FACT

   
   

   1. S. A. Williams Corporation (Williams) is a Florida corporation which has its principal place of business in Florida, has a net worth of less than two million dollars, has fewer than

      25 employees, and was the prevailing party in the initial proceedings.

      
      

   2. Williams has operated a construction and demolition landfill in Hernando County since prior to the adoption of zoning ordinances by the county, and its use of the land for this purpose was grandfathered. Subsequently, William sought to comply with certain conditions established by the County for expanding the landfill site. These improvements necessitated construction of a basin to retain surface water. On April 6, 1993, William applied for a surface water drainage permit from the Southwest Water Management District. On June 16, 1993, the District gave notice of its intent to issue the surface water drainage permit to Williams.

      
      

   3. On May 26, 1993, while Williams' application was pending with the Water Management District, the County revoked the zoning of Williams to operate a construction and demolition landfill site. Williams sought and obtained an injunction against the County to prevent it from revoking its zoning, and the County appealed the Circuit Court's order enjoining the revocation of the zoning.

      
      

   4. The Hernando County Commission was advised by their attorney on May 10, 1993, that the County might desire to challenge the issuance of permits by the Water Management District or the Department of Environmental Regulation to Williams to prevent Williams from proceeding with its operation during the appeal of the injunction.

      
      

   5. At a meeting on June 24, 1993, before the County challenged issuance of the permit, the Water Management District staff advised the County Attorney and a member of the County Commission, who were attending the presentation in their official capacity, that there would be no adverse drainage impacts to any property owned by the County, its rights-of-way, or any property of any citizen of the county because the drainage would be retained on Williams' property by a close basin system large enough to retain surface water drainage on the property during a

      100 year storm.

      
      

   6. Subsequent to this meeting and prior to filing its petition challenging issuance of the permit, the County did not bring to the attention of the Water Management District any concerns to be resolved between the District, Williams, and the

County over adverse drainage impacts to County property or rights-of-way.

7 On June 30, 1993, Hernando County filed a petition in the original proceeding challenging the issuance by Southwest Water Management District to Williams of a surface water drainage permit.

1. That petition alleged two grounds for standing: (1) that the County was substantially affected because of adverse impacts to county property and the rights-of-way to county roads, and (2) that the County had standing to challenge the issuance of the permit under its general police powers.

   
   

2. The County Engineer was not asked by the County Attorney to review the drainage impacts of the surface water drainage permit prior to filing the challenge, and did not review the District's file until after his first deposition on October 22, 1993. After reviewing the information, to include a new survey of the berm contours, furnished to the Water Management District by Williams, the County Engineer determined that there were no adverse drainage impacts off site. The County Engineer's opinion that there were no adverse impacts to County property was known by the County Attorney prior to the formal hearing in Case Number 93-4212 on November 16, 1993.

   
   

3. At the formal hearing on November 16, 1993, in Case Number 93-4212, Williams moved to dismiss the petition filed by Hernando County for lack of standing on the basis that the County was not substantially effected by the Water Management District's decision to issue a surface water drainage permit to Williams. The County receded from its allegation of damage to County property and rights-of-way at the commencement of the hearing, but asserted standing on the basis of its general police powers.

   
   

4. The County specifically denied at the formal hearing acting in a representative capacity in the manner of an association in behalf of the county's citizens.

   
   

5. After hearing the argument of counsel and being fully advised in the premises, the undersigned hearing officer recommended that the County's petition be dismissed.

   
   

6. At the conclusion of the hearing, Williams moved for the award of attorney's fees and expenses from the County after argument on the motion to dismiss the County's petition. Thereafter, Williams filed a written motion for the award of attorney fees and expenses. The Hearing Officer retained jurisdiction to consider the Motion for Attorney Fees and Expenses when the recommended order was entered.

7. The Water Management District adopted the Recommended Order in its Final Order dated December 20, 1993, and the County appealed the District's Final Order which was affirmed per curiam without opinion in Hernando County v. Southwest Florida Water Management District, 647 So. 2d 124, (Fla. 5th DCA 1994).

   
   

8. The instant case was established to consider William's motion which is treated as a collateral fact finding proceeding. The style of the original case was retained to prevent confusion. An evidentiary hearing on the motion for attorney's fees was held on May 10, 1995 which revealed the following facts.

   
   

9. During the work-up period prior to notice of intent to issue the permit, the county's engineer and environmental specialist did not raise issues regarding drainage, contours, wetlands, and wildlife. (Tx-220).

   
   

10. Although the County Attorney and one of its commissioners had been advised by the District that there would be no impact to County property or rights-of-way, the County Engineer was not asked to investigate whether the drainage from the proposed project would remain on the site as stated in the application and as concluded by the staff of the Water Management District prior to the County challenging the issuance of the permit. (Tx-198,199) The County Engineer looked at the Water Management District's file on the issuance of the permit only after the County had filed its challenge. (Tx-209). The County Engineer had expressed concerns to the District staff about suspected changes in the topography on the site. (Tx-208).

    
    

11. When the Water Management District was made aware of the County engineer's concerns, a new survey was conducted which resolved the County engineer's concerns about changes in topography on the site, and revealed that the tops of the berms were as high or higher than represented in the application. The results of this new survey was shared with County Engineer prior to the original hearing. (Tx-208,211-219).

    
    

12. The County's environmental specialist did not review the complete file on the Williams' permit application until within two weeks of the original formal hearing, well after the challenge was filed. (Tx-161). The environmental specialist had no basis to question the validity of the number of acres of wetlands stated in the second permit. (Tx-176). The environmental specialist did not have any personal knowledge regarding the flora or fauna on the site because she had never been on the site, and her information was based solely on material provided to her by individuals living in the vicinity of the site. (Tx-176,180-181). She did not have authority to enter

    on the site because the County had no enforcement authority over endangered species.

    
    

13. When the county's concerns about endangered species on the site were voiced, an on site inspection was conducted by the District. The District staff found no endangered species, or evidence of endangered species, or persons who had seen them on the site. The District staff's findings were shared with the County prior to the original hearing. (Tx-220.)

    
    

14. Williams incurred attorney fees and expenses responding to the challenge of the County to issuance of the surface water drainage permit. The expenses incurred by Williams were primarily in response to the County's allegations of adverse impacts to County property. However, it is impossible to reasonably separate the expenses incurred by Williams responding to the allegations of off-site impacts from those related to standing based upon general police power. The County's assertion of general regulatory authority was primarily a legal argument which was addressed by the District's staff. Williams sought no fees for the appeal which was litigated principally by the District and County.

    
    

15. By agreement of the parties the evidence on the amount of attorney fees and rate were submitted by affidavit without agreement regarding the facts asserted in the affidavits. The rate charged by counsel for Williams of $195/hour was a reasonable rate for the type of service provided in the geographic area in which it was provided considering the skill and experience of counsel. The number of hours billed through preparation of the post hearing briefs in the original formal hearing in this case, 160.25 hours, was not excessive given the number of depositions taken, the motions hearings which were held, and the legal and factual issues raised.

    
    

16. The Williams' affidavits of attorney's fees and expenses are as follows:

Attorney fees thru

original hearing: $31,248.75

Estimate of costs related to preparation

and service of Motion for

Attorneys Fees and Expenses: $ 1,560.00

Teleconference charges on

motion to compel: $ 127.73 Outside copying expense: $ 8.73

incurred by Williams in the hearing on attorney fees May 10, 1995 of $3,894.81 are reasonable. Williams incurred an expense of

$1,019.00 for publication of the transcript in the almost seven hour hearing.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57, 120.57(1)(b)5., and 57.111, Florida Statutes.

   
   

2. Williams pursues the award of attorney's fees and expenses under statutory provisions: Section 120.57(1)(b)5., and 57.111(3)(b)2, Florida Statutes. Although Williams proved that it is a prevailing small business party, Section 57.111, Florida Statutes, limits awards to claims made within 60 days after the date that the small business party prevailed. Williams' claim pursuant to Section 57.111, Florida Statutes, was not raised until January 17, 1995, well after the 60 days had expired.

   
   

3. Section 120.57(1)(b)5., Florida Statutes, provides as follows:

   
   

   All pleadings, motions, or other papers filed in the proceeding must be signed by a party, the party's attorney, or the party's qualified

   representative. The signature . . . constitutes a certificate that he has read the pleading, motion, or other paper and that, to the best

   of his knowledge, information and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass, or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other

   paper is signed in violation of these requirements, the hearing officer, upon motion or his own initiative, shall impose upon the person who

   signed it, a represented party, or both, an

   appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

   
   

4. This provision has been interpreted in the case of Mercedes Lighting v. Department of General Services, 560 So.2d

   272 (Fla. 1st DCA 1990), as being similar to Rule 11, Federal Rules of Civil Procedure; however, without that Federal Rule's requirements that the pleading be well grounded in fact and warranted by existing law. Therefore, the court concluded that "courts should not delve into any attorney's or party's subjective intent or into a good faith-bad faith analysis. Instead, if a reasonably clear legal justification can be shown for the filing of the paper in question, improper purpose cannot be found and sanctions are inappropriate."

   
   

5. Under the principles in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981), rev. denied, 415 So. 2d 1359 (1982), the county would have had to show that it would suffer injury in fact which is of sufficient immediacy to entitle it to a section 120.57 hearing, and that its substantial injury is of a type or nature which the proceeding is designed to protect.

   
   

6. The County asserted in its Petition that (1) its (real) property and road rights-of-way were in danger of being damaged by the proposed project, and (2) it had a general right to protect the health and safety of its citizens.

   
   

7. Notwithstanding the language in Mercedes, supra., which would appear on the surface to indicate that there is no requirement that a pleading be well grounded in fact and in law, the provisions of Section 120.57(1)(b)5., supra., specifically require the pleading's signer to determine through reasonable inquiry that the pleading is not frivolous. In this case, the County Attorney personally knew that the Water Management Staff had concluded after a review of Williams' application that the drainage would remain on Williams' property. The County Attorney signed the petition with knowledge of the District staff's belief that there would be no off-site impact and without any information to the contrary. No effort was made to have the County Engineer check these facts at the time.

   
   

8. Webster's New Collegiate Dictionary defines "frivolous" as "of little weight or importance, lacking in seriousness, or irresponsibly self-indulgent." The County Attorney did not make a reasonable inquiry regarding the allegations of damage to County property after being advised by the District that it would

   not impact County property. This allegation was "lacking in seriousness."

   
   

9. It was the allegation of off-site impacts to County property which Williams spent the greatest effort to rebut. Regardless of the merits of the County's second theory of standing, Williams is entitled to recovery of its attorney's fees and expenses incurred while responding to the allegation of off- site damage to county property.

   
   

10. The County argues that its second theory of standing, general police power, was meritorious, and, therefore, Williams is precluded from being awarded attorney's fees. However, the award pursuant to Section 120.57(1)(b)5., Florida Statutes, relates not to whether the County presented some theory of standing which was less than frivolous, but whether it included allegations which were frivolous. The facts reveal that the allegations originally included of damage to County property were frivolous because the County Attorney had been told by the District staff that County property would not be impacted, had no information to the contrary, and did not ask the County Engineer to confirm the facts prior to filing the challenge.

    
    

11. Regarding the County's second theory of standing, although it was determined at the initial hearing that the Water Management District did not have a substantial interest to challenge the issuance of the surface water drainage permit under the concepts expressed in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981), rev. denied, 415 So. 2d 1359 (1982), this was a justiciable issue.

    
    

12. This allegation was confronted on legal grounds by both Williams and the Water Management District; however, it was the Water Management District which perceived this portion of the petition to be an infringement upon its jurisdiction and which filed the most exhaustive brief on the issue following the original hearing. This basis for standing was rejected in the Recommended Order, the Final Order, and affirmed per curiam by the appellate court. According to Williams, which seeks no expenses or attorney fees for the appeal of that order, it was the District which defended its final order.

    
    

13. Although the County's standing on general police power was justiciable, the applicant's efforts to rebut this issue reasonably cannot be separated from those efforts taken to rebut the frivolous allegations of damage to County property. Therefore, although the County's second issue was not frivolous, Williams is entitled to recover its attorney's fees and expenses for responding to the allegations of damage to county property even though the County abandoned this basis for standing at the

    formal hearing immediately prior to the hearing because by that time Williams had incurred the expense and because there was never a factual basis for the County's allegation.

    
    

14. The County further argues that it was not a "party" because the Hearing Officer found that it lacked standing and recommended its petition be dismissed, which was adopted by the Final Order, and therefore, it cannot be assessed attorney's fees and expenses pursuant to Section 120.57(1)(b)5., Florida Statutes. Section 120.52(12)(b), Florida Statutes, defines in pertinent part a "party" as:

    
    

    (b) Any other person who, as a matter of constitutional right, provision of

    statute, or provision of agency regulation, is entitled to participate

    in whole or in part in the proceeding, or whose substantial interest will be affected by proposed agency action,

    and who makes an appearance as a party.

    
    

15. Any person who files a petition in an administrative hearing is a "party" under the provision above. As the court indicates in Burleson v. Department of Administration, 410 So. 2d

    581 (Fla. 1st DCA 1982), "a party is entitled to a hearing to contest a finding of lack of jurisdiction when that determination is based upon disputed facts." Therefore, the County, having asserted a factual basis for invoking the forum and having appeared voluntarily as a party, is a party for purposes of Section 120.57(1)(b)5., Florida Statutes.

    
    

16. The County asserts that Williams is barred from requesting attorney's fees and expenses because it failed to plead for this relief under the case of Stockman v. Downs, 573 So. 2d 833 (Fla. 1991); however, under the case of Ganz v. HZJ, Inc., 605 So. 2d 871, in which the Supreme Court revisiting the requirement for pleading entitlement to attorney's fees to be specifically pled held that there is certainly no way for a litigant to know in advance whether the adverse party will raise nothing but frivolous issues in a civil case and, therefore, to plead in good faith its entitlement to attorney's fees under Section 57.105, Florida Statutes.

    
    

17. By analogy, the court's argument is equally applicable to the request for attorney's fees under Section 120.57(1)(b)5., Florida Statutes, in which Williams, as the applicant for a permit being challenged by a pleading filed by the County, is obliged to file no pleadings, but must prove the factual allegations challenged by the County's petition. Williams challenged the County's allegations as soon as it became aware

    that the County's engineer admitted the drainage would not impact County property, and it was only after it obtained a ruling on its motion that Williams could in good faith move for attorney's fees and expenses, as it did.

    
    

18. Regarding Williams' evidence presented by affidavit on attorney's fees, the estimate of eight (8) hours of time spent for preparation of affidavits, recruiting expert witnesses, etc. is rejected as being an estimate. The Movant's affidavits of attorney's fees and expenses are as follows:

    
    

    Attorney fees thru

    original hearing: $31,248.75

    
    

    Teleconference charges

    on motion to compel: $ 127.73 Outside copying expense: $ 8.73

    Expert Witness fee: $ 1,277.90

    Court Reporter fees for

    depositions & transcripts: $ 1,692.45

    
    

    Expert fees on Motion for

    Attorney Fee and expenses: $ 788.00

    
    

    Allowed Fees & Expenses: $35,143.92

    
    

19. Considering the factual findings and the legal arguments above, it is concluded that the litigation was undertaken for an improper purpose (to wit: preventing Williams from pursuing operation of the landfill during pendency of the appeal) because the "factual" allegations of off-site impacts to county property were known to be false. In addition to the conclusion above, the County's allegation of off-site impacts to county property were frivolous because the County Attorney was told by the District staff there would be no such impacts and made no reasonable inquiry to determine if they were meritorious prior to filing the challenge. Williams' costs were related to defending the allegation of damage to County property and rights- of-way cannot reasonably be separated from the costs of defending the County's other allegation.

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

ORDERED: That Williams be awarded attorney's fees and expenses in the amount requested of $35,143.92 for the original hearing and the proceedings on the Motion for Attorney's Fees and

Expenses to be assessed jointly and severally against Board of County Commissioner's of Hernando County and Robert Bruce Snow, as attorney of record for said County commission, and signatory of the petition challenging issuance of the surface water drainage permit.

DONE and ORDERED this 15th day of August, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 15th day of August, 1995.

APPENDIX TO FINAL ORDER

Both parties submitted proposed findings of fact which were read and considered. The following states which of those findings were adopted, and which were rejected and why:

Hernando County's Final Order Findings

Paragraph 1,2 Paragraph 2,3.

Paragraph 3 Subsumed in Paragraph 2.

Paragraph 4 Subsumed in Paragraph 2 which is based upon the more credible evidence.

Paragraph 5 Rejected as characterizing the statutory notice period as "short."

Paragraph 6,7 Rejected. See Paragraphs 20 & 21. Also subsumed in Paragraph 9 which is based upon the more credible evidence.

Paragraph 8,9,10 Rejected as contrary to the more credible evidence.

Paragraph 11 Paragraph 8, in part, and rejected, in part, as contrary to more credible evidence.

Paragraph 12 Paragraph 3,4.

Paragraph 13 Rejected as Conclusion of Law.

William's Findings Final Order

Paragraph 7 Subsumed in other findings. Paragraph 8 Subsumed in Paragraph 4.

Paragraph 9 Subsumed in Paragraph 18,19. Paragraph 10 Rejected as a Conclusion of Law. Paragraph 11,12 Subsumed in Paragraph 23.

Paragraph 13,14 Subsumed in Paragraph 24.

Paragraph 15 Subsumed in Paragraph 25.

COPIES FURNISHED:

Robert Bruce Snow, Esquire Room 462

20 North Main Street Brooksville, FL 34601

Joseph G. Thresher, Esquire Suite 725

501 East Kennedy Boulevard Tampa, FL 33602

Mark F. Lapp, Esquire James A. Robinson, Esquire Southwest Florida Water

Management District 2379 Broad Street

Brooksville, FL 34609-6899

Peter G. Hubbell, Executive Director Southwest Florida Water

Management District 2379 Broad Street

Brooksville, FL 34609-6899

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.

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

DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

HERNANDO COUNTY, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 95-3147

vs. DOAH CASE NO. 93-7073F

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT AND S.A. WILLIAMS CORPORATION.

Appellee.

/ Opinion filed September 10, 1996

An appeal from an order of the Division of Administrative Hearings.

Robert Bruce Snow, Brooksville, for Appellant.

Joseph G. Thresher of Joseph G. Thresher, P.A., Tampa, for Appellees.

PER CURIAM.

AFFIRMED.

ERVIN, KAHN, and DAVIS, JJ., CONCUR

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Stephen F. Dean, Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

HERNANDO COUNTY

vs. Case No. 95-3147

Your Case No. 93-7073F

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT AND S. A. WILLIAMS CORPORATION

The attached opinion was rendered on September 10, 1996.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Edward T. Barfield

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 26th day of September, 1996.

(seal) Jon S. Wheeler

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 93-007073F

Orders for Case No: 93-007073F