STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMER PLACE CONDO ASSOCIATION/PEGGY SHANBARKER,

Petitioners,

vs.

BRENDA STEINER,

Respondent.

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) Case No. 05-1924F

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this proceeding on June 15, 2005, in Bradenton, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Doris A. Bunnell, Esquire

Doris A. Bunnell, P.A. 608 15th Street, West Bradenton, Florida 34205

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues for determination are whether Petitioner is entitled to recover attorney fees (fees) pursuant to

Subsection 120.595(1), Florida Statutes (2002), and, if so, what amount of fees should be awarded.

PRELIMINARY STATEMENT

On May 24, 2005, Petitioners filed an Amended Petition for Attorney Fees (Petition). The Petition seeks fees in the amount of $2,000 and no costs. At the administrative hearing, Petitioners presented the testimony of one witness and submitted two exhibits for admission into evidence. Respondent did not appear at the hearing and did not otherwise submit any evidence.

The identity of the witness and exhibits and the rulings regarding each are recorded in the official record of the hearing. Neither party requested a transcript of the hearing, and neither party filed a proposed recommended order.

FINDINGS OF FACT

1. On February 26, 2005, the Florida Commission on Human Relations (Commission) issued a Determination of No Reasonable Cause pursuant to the "Fair Housing Act" (Determination). The Determination notified Ms. Steiner (the complainant),1 in accordance with Subsection 760.35(3)(a)2., Florida Statutes (2004), that the Commission had "concluded its investigation under s. 760.34."

2. The complainant filed a Petition for Relief, and the Commission referred the matter to DOAH to conduct an administrative hearing. DOAH assigned the matter to the undersigned. On April 21, 2005, the ALJ conducted an administrative hearing in Brenda Steiner v. Summer Place Condo

   Association/Peggy Shanbarker, Case No. 05-0567 (the underlying case).

3. The subject of the underlying case did not involve "proposed agency action" as that phrase is used in Subsection 120.595(1)(e)3., Florida Statutes (2004). The Commission did not institute an administrative proceeding to enforce agency action pursuant to Subsection 760.35(3)(a)1., Florida Statutes (2004). The Commission was not an adversarial party in a contested hearing to enforce proposed agency action. Rather, the Commission conducted an investigation pursuant to Sections

   760.32 and 760.34, Florida Statutes (2004), and issued the Determination as a statutory prerequisite for the complainant to request an administrative proceeding pursuant to Subsection 760.35(3)(a)2., Florida Statutes.

4. The Determination found that no reasonable cause existed to believe a discriminatory housing practice had occurred and stated that the "complaint is hereby dismissed." If the Determination were held to be proposed agency action to dismiss the complaint, the complainant was the nonprevailing adverse party in the underlying case within the meaning of Subsection 120.595(1)(c)3., Florida Statutes (2004). The complainant failed to change, in any manner, the outcome of the proposed agency action to dismiss the complaint.

5. The complainant participated in the underlying case for an improper purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2004). Based on the conduct of the complainant and record evidence, there was a complete absence of a justiciable issue of law or fact.

6. The complainant's conduct during the administrative hearing demonstrated a complete absence of a justiciable issue of law or fact. The complainant did not appear at the hearing in the underlying case, did not demonstrate a familiarity with relevant law and facts, and did not demonstrate an understanding of the scope of the administrative hearing.

7. The record evidence demonstrates a complete absence of any justiciable issue of law or fact. The record evidence does not evince a prima facie showing of discrimination. The record includes no material witnesses for the complainant, no exhibits to support the allegations in the Petition for Relief, and otherwise fails to show facts or raise legal issues that were relevant and material to allegations in the Petition for Relief.

8. The ALJ did not issue a recommended order finding that a discriminatory housing practice had occurred within the meaning of Subsection 760.35(3)(b), Florida Statutes (2004). The ALJ did not issue a recommended order that included "reasonable attorney's fees and costs."

9. A fee in the amount of $2,000, for 10 hours of time, at

   
   

   $200 an hour, is reasonable under the circumstances based on the complexity of the case and the experience of counsel evidenced in the record. Petitioners could not avoid incurring the fee because, in the underlying case, the complainant did not notify opposing counsel of the complainant's intent not to appear at the hearing until 4:00 p.m. on the day before the hearing; and did so by telephone rather than in writing. Counsel had no competent option except to appear at the hearing and await, with the ALJ, the non-appearance of the complainant.

10. The failure of the complainant to file a written notice of voluntary dismissal in a timely manner and the failure of the complainant to appear at the hearing caused unnecessary delay. Each failure impeded the ability of DOAH and the opposing party to dispose of the pending claim. The fees sought by Petitioners in the amount of $2,000 does not include any time for traveling to and attending the hearing.

11. On April 26, 2005, the ALJ issued a Recommended Order of Dismissal in the underlying case. Petitioners filed the original request for fees (original request) and Petition with DOAH on May 9 and 24, 2005, respectively, after DOAH had relinquished jurisdiction in the "proceeding conducted pursuant to s. 120.57(1)" to the Commission for entry of a final order.

12. Petitioners filed the original request and Petition with DOAH while the "proceeding conducted pursuant to

    s. 120.57(1)" was pending before the Commission. The Commission issued its Final Order of Dismissal on June 15, 2005.

13. The filing of the original request and Petition with DOAH was procedural error. Petitioners should have filed the original request and Petition with the Commission, together with a request to remand the Petition to DOAH, prior to the entry of a final order by the Commission.

    CONCLUSIONS OF LAW

    
    

14. DOAH does not have subject matter jurisdiction in this proceeding for several reasons. First, statutory authority for the ALJ to order the complainant to pay the fees sought by Petitioners is predicated upon a finding in the recommended order in the underlying case that a "discriminatory housing practice has occurred or is about to occur." § 760.35(3)(b), Fla. Stat. (2004). The recommended order did not include the requisite finding. Second, the subject of the proceeding conducted "pursuant to s. 120.57(1)" did not involve proposed agency action. §§ 760.35(3)(a)1. and 120.595(1)(e)3., Fla. Stat. (2004). Third, Petitioners failed to file the "motion" for fees required in Subsection 120.595(1)(c), Florida Statutes (2004), with DOAH in a timely manner. Rather, Petitioners filed the requisite motion with DOAH at a time when DOAH had no

    subject matter jurisdiction in the proceeding conducted "pursuant to s. 120.57(1)." See Procacci Commercial Realty,

    Inc. v. Department of Health and Rehabilitative Services, 690 So. 2d 603, 608-609 (Fla. 1st DCA 1997)(referring agency regains jurisdiction upon entry of a recommended order). Fourth, the Final Order of Dismissal issued by the Commission on June 15, 2005, did not include an award of fees. Compare §§ 760.35(3)(b) and 120.595(1)(b), Fla. Stat. (2004).

15. If it were determined that none of the foregoing grounds precluded subject matter jurisdiction, the absence of an adversarial proceeding on the merits does not preclude subject matter jurisdiction in this proceeding. The absence of a recommended order on the merits in the underlying case is not a jurisdictional bar to a claim for fees based on Section 120.595, Florida Statutes (2004). G.E.L. Corporation v. Department of Environmental Protection, 875 So. 2d 1257, 1262 (Fla. 5th DCA 2004).

16. The Commission is statutorily authorized to issue a final order awarding reasonable fees to Petitioners after the ALJ determines in a "proceeding pursuant to s. 120.57(1)," that the complainant participated in the underlying case for an improper purpose. § 120.595(1)(b), Fla. Stat. (2004). The absence of an adversarial hearing on the merits in the

    underlying case does not mean there is no "proceeding pursuant to s. 120.57(1)." G.E.L., 875 So. 2d at 1262.

17. The statutory definition of an improper purpose includes, in relevant part, a purpose that is frivolous.

    § 120.595(1)(e)1., Fla. Stat. (2004). A purpose is frivolous if there is a complete absence of a justiciable issue of fact or law. Cf., Burke v. Harbor Estates Associates, Inc., 591 So. 2d 1034, 1036 (Fla. 1st DCA 1991)(reversing and remanding final agency order that rejected, in relevant part, hearing officer finding that participation was frivolous, within the meaning of substantially similar language in former § 120.59(6)(e)1.,

    Fla. Stat. (1989), because there was a complete absence of a justiciable issue of law or fact), accord Dolphins Plus v.

    Residents of Key Largo Ocean Shores, 598 So. 2d 324 (Fla. 3d DCA 1992); Consultech of Jacksonville, Inc. v. Department of Health, 876 So. 2d 731, 736 (Fla. 1st DCA 2004) and Procacci, 690 So. 2d at 608-609 and n. 10 (both defining a frivolous appeal, under

    § 120.595(5), Fla. Stat. (2002), by the "justiciable" standard).2

    
    

18. A determination of whether there is a complete absence of a justiciable issue of law or fact is a factual issue to be determined by the trier of fact. The trier of fact must base relevant findings on an objective standard defined by the record evidence presented by the non-prevailing adverse party and by that party's conduct during the proceeding. See Burke, 591

    So. 2d at 1037 (determination of an "improper purpose" in former

    
    

    § 120.59(6)(e)1., Fla. Stat. (1989), is a finding of fact that is not converted to a conclusion of law by the absence of direct evidence of a party's subjective intent); accord Dolphins Plus,

    598 So. 2d at 325. Cf. State v. Hart, 677 So. 2d 385, 386 (Fla.

    
    

    4th DCA 1996)(citing Burke for the proposition that motive and intent are states of mind usually inferred from the conduct of the parties and the surrounding circumstances). See also Procacci, 690 So. 2d at 608 (so-called "justiciable" standard is an objective standard based on the record).

19. Application of an objective standard in the underlying case reveals that the complainant participated in the underlying case for an improper purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2004). The record evidence and conduct of the complainant demonstrates a complete absence of a justiciable issue of law or fact.

20. The record evidence fails to show facts necessary to sustain any allegation in the Petition for Relief. The evidence includes no witnesses in behalf of the complainant, no exhibits, no cross-examination of witnesses, and no prima facie showing that a discriminatory housing practice had occurred or was about to occur.3

21. The conduct of the complainant also demonstrates a complete absence of a justiciable issue of fact or law. The

    complainant failed to appear at the administrative hearing in the underlying case. Cf. Consultech, 876 So. 2d at 735 (upholding award of fees and costs for failure of representative to appear at deposition).

22. As a matter of law, fees generally were not awarded under Section 57.105, Florida Statutes (1997), against a defaulting party in civil litigation based on the complete absence of a justiciable issue of fact or law. A defendant who allowed a civil matter to be resolved by default did not tax the time of the court or the opposing party in any manner. State,

    Department of Highway Safety and Motor Vehicles v. Slater, 710 So. 2d 1039, 1041 (Fla. 2d DCA 1998). Similarly, loss of a complaint or defense by summary judgment or dismissal did not, without more, support an award of fees under the cited Statute. Whitten v. Progressive Casualty Insurance, Co., 410 So. 2d 501, 505-506 (Fla. 1982); Mason v. Highlands County Board of County Commissioners, 817 So. 2d 922, 923 (Fla. 2d DCA 2002). An exception existed when the absence of the defaulting party impeded the opposing party and the court's disposition of the matter. Slater, 710 So. 2d at 1041.

23. Unlike the facts in the foregoing cases, the failure of the complainant to appear at the administrative hearing impeded the disposition of the claim by both opposing counsel and the ALJ. It required each to travel to the hearing site and wait for

    a reasonable time to ensure that the complainant would in fact not appear at the hearing.4

24. Unlike the purpose of other statutes authorizing an award of fees, Subsection 120.595(1), Florida Statutes (2004), is intended to shift the cost of participating in a proceeding to the losing party when such participation, in relevant part, causes unnecessary delay. Compare Burke, 591 So. 2d at 1036-1037 (former § 120.59(6), Fla. Stat. (1987), shifts the cost of participation to the non-prevailing party) with Murphy, 895

    So. 2d at 1094 (a claim or defense that is not frivolous, under

    
    

    § 57.105, Fla. Stat. (2001), at the time it is filed is not subject to an award of fees because subsequent developments render the claim or defense to be without a justiciable issue in law or fact) and Casa Febe Retirement Home, Inc. v. Agency for

    Health Care Administration, 892 So. 2d 1103, 1105-1106 (Fla. 2d DCA 2004)(requirement in § 57.111, Fla. Stat. (2002), for justiciable issue of fact at time of filing complaint is satisfied by testimony of investigator during probable cause phase that the trier of fact subsequently determines during the hearing to be neither credible nor persuasive). After the claimant filed the Petition for Relief, subsequent developments in the record fail to show a justiciable issue of fact or law for the claimant's continued participation in the proceeding. The claimant's participation in the proceeding after filing the

    Petition for Relief was frivolous. Petitioners incurred all of the fees at issue in this proceeding after the claimant filed the Petition for Relief.

25. The failure of the claimant to file a timely notice of dismissal impeded the earlier disposition of her claim by both DOAH and opposing counsel. The claimant's failure to prosecute her claim after filing the Petition for Relief falls within the judicially recognized exception under other statutes to an award of fees for default judgments. Slater, 710 So. 2d at 1041.

RECOMMENDATION

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

RECOMMENDED that the Commission enter a final order dismissing the Petition for lack of jurisdiction.

DONE AND ENTERED this 15th day of July, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 15th day of July, 2005.

ENDNOTES

1/ Relevant statutory provisions describe a party alleging a discriminatory housing practice, alternatively, as a "complainant" and "the person aggrieved." Compare §§ 760.34(5) and 760.35(3)(a)2., Fla. Stat. (2004).

2/ In Harbor Estates Associates, Inc. v. E. Burke and State of Florida Department of Environmental Regulation, Case No. 89-2741 (DOAH April 4, 1990), the hearing officer found that participation by a non-prevailing adverse party was frivolous, in relevant part, because there was a complete absence of a justiciable issue of law or fact. The final order of the agency, inter alia, rejected that finding. The appellate court reversed the final order and remanded the case to the agency for entry of a final order adopting relevant findings in the recommended order. Burke, 591 So. 2d at 1036, accord Dolphins Plus, 598 So. at 324.

The term "frivolous" has been consistently defined by the so-called "justiciable" standard for the purposes of other fee statutes, including Section 57.105 and Subsections

120.57(1)(b)(10) and 120.595(5), Florida Statutes (1981-2001).

In 1982, the Florida Supreme Court held that a finding of a complete absence of a justiciable issue of law or fact, for purposes of Section 57.105, Florida Statutes (1981), was tantamount to a finding that a claim or defense was frivolous. Whitten v. Progressive Casualty Insurance, Co., 410 So. 2d 501,

505 (Fla. 1982). Subsequent legislative deletion of the

so-called "justiciable" standard from the statute at issue in Whitten was construed to retain the "justiciable" standard and broaden the basis for an award of fees beyond the "justiciable" standard. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 1061 (Fla. 4th DCA 2001)(awards of fees are no longer limited to "a complete absence of a justiciable issue of either law or fact raised by the losing party"); Jackson v. York Hannover Nursing Centers, Inc., 853 So. 2d 598, 602 (Fla. 5th DCA 2003)(construing the term "frivolous," under § 57.105, Fla.

Stat. (1997), by reference to the "justiciable" standard. Accord, Murphy v. WISU Properties, Ltd., 895 So. 2d 1088, 1094 (Fla. 3d DCA 2004)(frivolous purpose, under § 57.105, Fla. Stat. (2001), is to be judged based on whether claim or defense is

without justiciable issue in law or fact); Read v. Taylor, 832 So. 2d 219, 222 (Fla. 4th DCA 2002)(complaint is not frivolous, under § 57.105, Fla. Stat. (2000), as long as it alleges some justiciable issue). Compare Wendy's of N.E. Florida v.

Vandergriff, 865 So. 2d 520, 524 (Fla. 1st DCA 2003)(acknowledging legislative amendment deleting the "frivolous standard" that was present in the earlier statute, but applying the justiciable issue of law or fact to determine entitlement to fees and costs under the revised statute). See also Consultech, 876 So. 2d at 736 and Procacci, 690 So. 2d at 608-609 and n. 10 (both citing justiciable standard for definition of frivolous appeals).

3/ Relevant factors to be considered in applying the objective standard to a contested hearing on the merits include:

the immateriality of evidence presented relevant to the issues of law and fact in the proceeding;

demonstrated unfamiliarity with relevant law and the proper scope of the proceeding;

repeated attempts to establish violations of laws not relevant to the proceeding including local and other laws;

demonstrated inability to distinguish between evidence and argument;

failure to call material witnesses in a party's own behalf;

repeated attempts to establish issues either by unsworn representations of facts or by arguing with witnesses during direct and cross examination; and

failure to otherwise show facts necessary to sustain the pleadings.

See, e.g., Harbor Estates Associates, Inc. v. E. Burke and State of Florida Department of Environmental Regulation, Case

No. 89-2741 (DOAH April 4, 1990), accord Burke, 591 So. 2d at

1035-1036; Dolphins Plus, 598 So. 2d at 324.

4/ Reliance on a telephone representation from the complainant to opposing counsel on the day before the hearing, rather than a written notice of voluntary dismissal filed with DOAH in a timely manner, left both opposing counsel and the ALJ with no competent alternative but to travel to the hearing site and await the non-appearance of the complainant. A lay representative who chooses to represent herself or himself is not held to a lesser standard of conduct than a licensed attorney. Cf. Burke, 591 So. 2d at 1037 (holding that a qualified lay representative is held to same standard of conduct as licensed attorney).

COPIES FURNISHED:

Doris A. Bunnell, Esquire Doris A. Bunnell, P.A.

608 15th Street, West Bradenton, Florida 34205

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Brenda Steiner

1320 54th Avenue Drive, East Bradenton, Florida 34203

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 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.

Docket for Case No: 05-001924F

Orders for Case No: 05-001924F