The Issue The ultimate issue for determination is whether the Department of Environmental Protection should award attorney's fees and costs to G.E.L. Corporation pursuant to Section 120.595, Florida Statutes (2002).
Conclusions For Claimant: Daniel Harwin, Esquire Freedland Harwin Valori, P.L. 110 Southeast 6th Street, Suite 2300 Fort Lauderdale, Florida 33301 For Defendant: S. William Fuller, Jr., Esquire Hall Booth Smith, P.C. 200 West Forsyth Street, Suite 400 Jacksonville, Florida 32202
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
The Issue Whether Petitioner is entitled to attorneys’ fees under 57.111, Florida Statutes.
Findings Of Fact After waiting for approximately 15 minutes after 9:00 a.m. on May 9, 2016, at the undersigned's directions, the undersigned’s assistant contacted Petitioner's counsel by telephone. During that conference call, Petitioner's counsel advised that he had received the Notice of Hearing scheduling this case, but that he had erroneously failed to properly calendar the hearing. Petitioner’s counsel was advised that the parties should assemble as scheduled on May 10, 2016. Following the phone call, Petitioner’s counsel filed Petitioner’s Counsel’s Apology to the Court & Opposing Party, in which Petitioner’s counsel took responsibility for failing to appear. Thereafter, on May 10, 2016, at 8:00 a.m., Respondent’s counsel filed Respondent’s Motion to Dismiss for Failure to Prosecute. When the final hearing was reconvened at 9:00 a.m., May 10, 2016, Petitioner's counsel appeared with co-counsel, his client’s representative, and witnesses. The undersigned heard argument on Respondent’s Motion to Dismiss for Failure to Prosecute. As noted in the Motion to Dismiss for Failure to Prosecute, “Petitioner has continually confounded these proceedings by failing to timely file affidavits to initiate these [consolidated] cases [and] failing to timely respond to discovery.” It is further found that Petitioner’s failure to appear as properly noticed on May 9, 2016, was without good cause, and Petitioner failed to prosecute the case as scheduled. As the proponent of its claim for attorney’s fees and costs under section 57.111, Florida Statutes, Petitioner had the initial burden of proof to demonstrate by a preponderance of the evidence that it qualifies for relief under section 57.111. By failing to appear for the May 9, 2016, hearing, Petitioner failed to meet its burden. Upon consideration of Respondent’s Motion to Dismiss for Failure to Prosecute, as well as Petitioner’s Counsel’s Apology to the Court & Opposing Party, and further considering the pleadings, motions, and procedural posture of this case and the underlying proceedings, Respondent’s Motion to Dismiss for Failure to Prosecute was GRANTED.
Findings Of Fact By information dated March 30, 1979, respondent gas accused of forging a prescription for 20 tablets of Biphetamine and of "feloniously acquir[ing] or obtain[ing], or attempt[ing] to acquire or obtain possession of a controlled substance, to-wit: Amphetamine" by means of the forged prescription, on or about December 13, 1978. Respondent's exhibit No. 1. On June 20, 1979, respondent was convicted, on the basis of his guilty plea, of forgery and of obtaining a controlled substance by fraud; concurrent sentences of two years' imprisonment for each offense were imposed, but respondent was placed on probation. Department's exhibits Nos. 2 and 3.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE and ENTERED this 14th day of May, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Raymond LaPorte, Esquire Suite 201, Ellis Building 408 Madison Street 1311 Executive Center Drive Tampa, Florida 33602 Tallahassee, Florida 32301 Nancy Kelley Wittenberg, Geraldine B. Johnson, R.N. Secretary Investigation & Licensing. Department of Professional Regulation Coordinator 2009 Apalachee Parkway Board of Nursing Tallahassee, Florida 32301 111 Coast Line Drive East Suite 504 Paul I. Perez, LPN. Jacksonville, Florida 32202 2301 W. Kirby Tampa, Florida 33804
The Issue Whether the agency's definition of the term "dry and measurable" as used in HRS bid documents is an unpromulgated rule which cannot be used as a basis for the agency's decision to reject the Petitioner's response to a bid proposal in Lease Number 590:1975. Whether the agency's requirement that a building be "dry and measurable" before a bid is accepted is an invalid exercise of delegated legislative authority.
Findings Of Fact In 1988, the Respondent HRS made the determination that it would not exercise its option on leased space owned by the Petitioner, Mr. Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. HRS included Mr. Dyess in its solicitations. He was sent a bid package which contained all of the bid documents for the bid referred to as Lease Number 590:1975. Page five of the document in the bid package known as HRS Facilities Services Form RO3-87, requires prospective bidders in Lease Number 590:1975 to contact Michael J. Sedgwick if they have any questions about the interpretation of the bid specifications. The document is silent on the questions of whether the written or oral representations made by Mr. Sedgwick are binding upon the agency, or whether the prospective bidder may contest the interpretation. A bidders' conference was held on April 26, 1988. During the conference, Mr. Sedgwick was questioned about the agency's interpretation of the term "dry and capable of being physically measured." Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for HRS in Tallahassee, and obtained the following definition: "Dry and measurable consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. This clarification or interpretation of the bid specification was not reduced to writing and sent to all prospective bidders, as required by HRS Facilities Form RO3-87. The Petitioner timely submitted a bid in Lease Number 590:1975. This bid was rejected by HRS because the building was not "dry and measurable", as defined by the agency, on the date of the bid opening. The definition of the term "dry and measurable," as set forth above, has been developed by HRS for use within the agency. It is an unwritten policy which is universally applied by the agency in all of its reviews of bid proposals submitted by bidders for building leases. This unwritten policy has been in effect for seven and one half years. A definition of the term "dry and measurable" is not set forth in the bid documents. A prospective bidder is encouraged by the bid documents to seek interpretations of definitions within the documents from the project contact person. In this case, the contact person was Mr. Sedgwick. No other basis was given to Mr. Dyess for the agency's rejection of his bid in Lease Number 590:1975.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
The Issue The amount of attorneys’ fees and costs to be assessed against Respondent, to be paid to Petitioner pursuant to section 120.595(4), Florida Statutes, and the First District Court of Appeal’s Order of Remand.
Findings Of Fact Based on the parties’ Stipulation, the following facts are found: On June 8, 2016, Petitioner filed a Petition to Determine Invalidity of Agency Statements (Petition), pursuant to section 120.56(4), Florida Statutes. In its Petition, Petitioner also sought reasonable trial-level attorneys’ fees and costs under section 120.595.3/ By Final Order dated August 26, 2016, the Administrative Law Judge dismissed the Petition, concluding that the challenged agency statement did not meet the definition of a rule under chapter 120. Grabba-Leaf, LLC v. Dep’t of Bus. & Prof’l Reg., Case No. 16-3160RU (Fla. DOAH Aug. 26, 2016). The Final Order was appealed to the First District Court of Appeal in Grabba-Leaf, LLC v. Department of Business and Professional Regulation, Case No. 1D16-4273. In the appeal, Grabba-Leaf moved for appellate fees and costs pursuant to section 120.595. On November 6, 2018, the First District Court of Appeal reversed the Final Order, and held that the challenged agency statement constitutes an unadopted and unenforceable rule. Grabba-Leaf, LLC. v. Dep’t of Bus. & Prof’l Reg., 257 So. 3d 1205 (Fla. 1st DCA 2018). Also on November 6, 2018, the First District Court of Appeal issued an Order granting Grabba-Leaf’s motion for appellate attorney’s fees and costs under section 120.595, and remanding the matter to the lower tribunal with instructions to assess the amount (Order of Remand). On November 27, 2018, the Mandate issued. The matter is now pending at DOAH on remand from the First District Court of Appeal to assess the amount of appellate attorneys’ fees to Grabba-Leaf, as well as on Petitioner’s request for attorneys’ fees and costs for the administrative hearing, made in its unadopted rule challenge petition. Petitioner’s Motion to Set Attorneys’ Fees and Costs was filed on February 11, 2019. The Motion represented that the parties had been trying to reach a settlement as to both the request for trial-level attorneys’ fees and costs and the appellate attorneys’ fees and costs ordered by the First District Court of Appeal. Grabba-Leaf represented that although it believed that the parties had reached an agreement as to the total amount, the written agreement had not been executed by Respondent. Accordingly, Grabba-Leaf asked that a hearing be held to determine attorneys’ fees and costs for the trial level and the appeal. Attached to the Motion was an affidavit attesting to the attorneys’ fees and costs for both the administrative hearing and the appeal, documented by records attached to the affidavit. The next day, on February 12, 2019, Grabba-Leaf filed Petitioner’s Notice of Withdrawal of Motion to Set Attorneys’ Fees and Costs. Petitioner also filed Petitioner’s Notice of Filing to which the parties’ Stipulation was attached. By the Stipulation, Petitioner and Respondent agree to the entry of a final order assessing the sum of $150,000.00 for attorneys’ fees and costs for both the trial level and appeal, to be paid by the Department to Grabba-Leaf within 60 days of entry of the final order. The agreed amount for fees and costs set forth in the Stipulation is generally consistent with the affidavit and records attached to Petitioner’s Motion to Set Attorneys’ Fees and Costs (later withdrawn), albeit in the context of a compromise by both parties to avoid the expense and risk associated with litigating the attorneys’ fees and costs matter.
The Issue The issue is whether Respondent, Florida Commission on Human Relations (FCHR), should pay Petitioners' attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ the Florida Equal Access to Justice Act, for initiating DOAH Case No. 12-2074.
Findings Of Fact On August 15, 2011, John and Kimberly Whitt (Whitts) filed a complaint of housing discrimination with the United States Department of Housing and Urban Development alleging disability discrimination. FCHR conducted an investigation of the complaint. During the investigation, the investigator obtained statements and documents from both parties. The investigator's final investigative report (Determination, found within Respondent's Exhibit 1) detailed the investigation. The Determination dated December 21, 2011, concluded that "there [was] reasonable cause to believe that a discriminatory housing practice occurred in violation of 804(f)(3)(A) of the Fair Housing Act, as amended." On March 2, 2012, FCHR issued a Legal Concurrence: Cause. The Legal Concurrence, drafted by FCHR's senior attorney, concluded that "there [was] reasonable cause to believe that Respondents [Association] discriminated against Complainants [the Whitts] in violation of 42 U.S.C. §§ 3604(b) and (f)(2)(A) and section 760.23(2) and (8)(a), Florida Statutes." On March 5, 2012, FCHR's executive director executed the Notice of Determination (Cause), charging that there was reasonable cause to believe that the Association had engaged in a discriminatory housing practice. The Whitts elected to have FCHR represent them to seek relief in an administrative proceeding against the Association. On June 14, 2012, FCHR filed a Petition for Relief (Relief Petition) with DOAH seeking an order prohibiting the Association from engaging in any unlawful housing practices, and granting damages. The final hearing in the underlying case was held before the undersigned on December 12, 2012. The undersigned entered a Recommended Order on February 15, 2013, recommending the dismissal of the Relief Petition filed on behalf of the Whitts. On May 2, 2013, FCHR entered a Final Order dismissing the petition for relief filed on behalf of the Whitts. The Association was the prevailing party in the underlying case. The Association is a not-for-profit corporation that does not have any employees. The Association relies solely on volunteers to run its operations. It has never had a net worth of two million dollars or more. The Association was represented by counsel and co- counsel in both proceedings. In the Fees Petition, the Association alleged it had incurred $75,657.00 in legal fees. At hearing, the Association provided a document which reflected that $5,945.00 in fees should not have been attributed to the instant case, thus setting the amount the Association was seeking at $69,712.00. However, the Association acknowledged that section 57.111(4)(d) 2., Florida Statutes, limited the recovery of attorney's fees and costs to $50,000. FCHR is a "state agency" for the purposes of this proceeding. See §§ 120.57(1) and 57.111(3)(f), Fla. Stat.
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
