Findings Of Fact Herein, Ibanez seeks recovery of attorney's fees and costs she claims to have incurred in DOAH Case No. 91-3336R styled Silvia S. Ibanez et al. v. State of Florida, Department of Professional Regulation, Board of Accountancy et al. In that case, Ibanez challenged the validity of Board of Accountancy Rule 21A-20.012 F.A.C. (the "holding out rule"). Ibanez unsuccessfully tried to initiate that case by filing a petition on May 10, 1991 with the Department of Professional Regulation. Ibanez successfully initiated the rule challenge on May 30, 1991, by filing with DOAH a Petition for Formal Administrative Hearing under Section 120.56 F.S. This type of action is commonly referred to as a "challenge to an existing agency rule." In such a case, the Petitioner is fully the initiator, challenger, or sword-wielder in the proceeding and bears both the duty to go forward and the burden of proof. Ibanez initiated the rule challenge in her capacity as a licensed certified public accountant (CPA). She is a sole practitioner and an employee of a law firm called "Silvia S. Ibanez, P.A.," but the law firm "Silvia S. Ibanez, P.A.," was not a party and did not participate in the rule challenge, except as one of several legal representatives for Silvia S. Ibanez, the individual. The Board participated in the rule challenge case to defend the holding out rule. The Florida Institute of Certified Public Accountants (FICPA) intervened in the rule challenge in support of the position of the Board that the holding out rule was valid. While Ibanez' petition in the rule challenge contained a prayer for "other appropriate relief, including award of costs as appropriate," her petition therein did not request an award of attorney's fees. Ibanez' Proposed Findings of Fact and Conclusions of Law and her accompanying Memorandum of Law submitted after formal hearing for that case, both of which pleadings were dated October 11, 1991, did not contain proposed findings of fact or proposed conclusions of law addressing the issue of attorney's fees and costs. Neither of Ibanez' post- hearing filings contained a request for attorney's fees or costs or a request to reserve jurisdiction in that case for such an award. The undersigned hearing officer rendered a final order declaring invalid the holding out rule on January 15, 1992. That final order did not award attorney's fees and costs, nor did it reserve jurisdiction to decide attorney's fees and costs at another time. Neither Ibanez nor any of her corporate entities nor any of her supporting intervenors filed any motion requesting a reservation of jurisdiction or requesting reconsideration. The Board and FICPA each appealed the final order in the rule challenge to the First District Court of Appeal in February 1992, but dismissed those appeals on May 6, 1992, by filing a Joint Notice of Voluntary Dismissal. The First District Court of Appeal issued an order acknowledging the Joint Dismissal on May 14, 1992. The Joint Dismissal and First District Court of Appeal Order were both attached to the material filed by the parties in this instant case. For purposes of deciding the pending motions to dismiss herein, the undersigned has considered the Joint Dismissal, the First District Court of Appeal Order, and the record in the rule challenge case, DOAH Case No. 91-3336R. Due to the unique arguments advanced in Ibanez' fees and costs motion (sic) herein, it also has been necessary and appropriate to consider the record in DOAH Case No. 91-4100. On May 22, 1991, a probable cause panel of the Board held a probable cause hearing involving Ibanez. As a result of that hearing, the Board initiated a disciplinary proceeding styled State of Florida, Department of Professional Regulation, Board of Accountancy v. Silvia S. Ibanez, DOAH Case No. 91-4100, by filing an administrative complaint on June 13, 1992. That case was a disciplinary action arising under Section 120.57(1) F.S. which was prosecuted by the Department of Professional Regulation on behalf of the Board against Ibanez. At one time, the disciplinary case was consolidated with the rule challenge case. The two cases were bifurcated prior to formal hearing of the merits of either case. FICPA never intervened in the disciplinary case, nor had they any standing to do so. The undersigned hearing officer conducted a 120.57(1) F.S. hearing in the disciplinary case on August 27, 1991, and issued a recommended order to the Board on January 15, 1992. The Board issued its final order in the disciplinary case on April 23, 1992. Therein, contrary to the recommended order, the Board held that Ibanez had violated Sections 473.323(1)(a), (f), (g), and (h) F.S. and Rule 21A-24.001 F.A.C. The Board accordingly issued a reprimand to Ibanez, which reprimand was stayed by the Board pending appeal. Ibanez has appealed the Board's final order in the disciplinary case to the First District Court of Appeal, which appeal is still pending. Ibanez served on July 9, 1992 her Motion for Attorney's Fees which is here under consideration. In doing so, Ibanez elected to use the style of the underlying rule challenge case, DOAH 91-3336R, the style of which still included intervenors James R. Brewster and American Association of Attorney Certified Public Accountants. Those intervenors have never attempted to appear in the instant fees and costs case and apparently seek no relief via Ibanez' pending fees and costs motion. The rule challenge case was final for all purposes before DOAH as of January 15, 1992 and before the District Court of Appeal on May 14, 1992. The DOAH case file for DOAH Case No. 91-3336R has been closed for several months. Ibanez' Motion for Attorney's Fees was received and deemed filed by DOAH on July 13, 1992. It was filed with DOAH sixty-eight (68) days after the rule challenge appeals were voluntarily dismissed by FICPA and the Board and sixty (60) days after the First District Court of Appeals entered its order ratifying the voluntary dismissal. Because petitions brought solely under Section 57.111 F.S. result in final orders, it is DOAH's standard operating procedure to open new files for all fees and costs cases arising under Section 57.111 F.S. Upon receipt of Ibanez' motion, DOAH's Clerk assigned Ibanez' motion the instant new case number (DOAH 92-4271F), primarily on the basis that the motion prayed for relief upon grounds of Section 57.111 F.S., among other statutes. The other statutory grounds cited in the motion were Sections 120.57(1)(b)5 and 120.59(6) F.S.
Findings Of Fact The initial Petition for Administrative Review was filed on August 22, 1991. The Petition was signed by Donald Eugene Halpin and Jeffery Lynn Fowler. The Petition, which was purportedly also filed by Richard Edward Jackson, was not signed by Mr. Jackson. In the Petition Mr. Halpin and Mr. Fowler challenged Rule 33-3.04(9), Florida Administrative Code. The Challenged Rule provides, in pertinent part: . . . The return address of all outgoing mail must contain the inmate's committed name, identification number and institutional address. The institutional name in the return address must be spelled out completely with no abbreviations. It was alleged in the Petition that the Challenged Rule is "arbitrary or capricious in its application." The Petition also contained an allegation that the Challenged Rule provides "no legitimate or compelling purpose when weighed against its adverse effect on Petitioners and their family and friends." Throughout the Petition it was alleged that there are "less restrictive forms the Respondent could employ to accomplish [its] goal . . . ." In this regard, the Petition contains the following allegation: 11. Petitioners have no qualms with the Respondent informing those individuals they write that they are state correctional inmates. However, Petitioners do object to the manner in which Respondent implements this restrictive measure. There is a much less restrictive means to accomplish the same objective, i.e., letting individuals know they are receiving letters from state correctional inmates. As the rule stands now, it is arbitrary or capricious as applied to the Petitioners. No facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8)(d), Florida Statutes, were included in the Petition. Finally, the following relief was requested and the following statement was made in closing: WHEREFORE, Petitioners respectfully move the Division of Administrative Hearings to declare Chapter 33-3.04 to be arbitrary or capricious in its application. Furthermore, Petitioners reserve the right to proffer First and Fourteenth Amendment violations during any administrative hearings [sic] or motions for rehearing for appellate purposes. On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. On December 2, 1991, a pleading titled "Amended Petition for Administrative Review" was filed by Mr. Halpin and Blanche Moseley with the case number of this case identified as the case that the pleading was being filed in. Through the Amended Petition Mr. Halpin and Ms. Moseley attempted to initiate the following challenge: Petitioners, Donald E. Halpin and Blanche Moseley, file their Amended Petition for Administrative Review, pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 and 120.57, Florida Statutes, to challenge Rule 33-3.004, Florida Administrative Code . . . . . . . . 4. Petitioners file this action pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 (Halpin being a State Prisoner must utilize Section 120.56) and 120.57 (Ms. Moseley being a free citizen will utilize Section 120.57), Florida Statutes. Petitioners will allege Chapter [sic] 33-3.04, F.A.C., is vague, vest unbridled discretion in the agency, and is arbitrary or capricious in its application. Furthermore, Petitioner Moseley would allege Chapter [sic] 33-3.04, F.A.C., violates the First, Eighth and Fourteenth Amendment guarantees to the United States Constitution. It is further alleged under the "Conclusion" section of the Amended Petition that Ms. Moseley's challenge is based upon Section 120.54, Florida Statutes, although no proposed rule or rule amendment has been challenged in the Petition or Amended Petition. In support of the allegation that the Challenged Rule is vague, it is alleged in the Amended Petition that the Challenged Rule "does not set forth why the public must be protected, e.g., the types of crimes committed by inmates, the number of inmates who violated U.S. Mail regulations, and how other crimes were committed by inmates through U.S. Mail." In support of the allegation that the Challenged Rule vests unbridled discretion in the Respondent, it has been alleged in the Amended Petition that the Challenged Rule is only intended as punishment--by informing those who come in conduct with an inmate's mail that the mail is from someone who is in prison. Several allegations are also included in the Amended Petition concerning how Ms. Moseley's constitutional rights are being violated by the Challenged Rule. The Amended Petition is devoid of any alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule is invalid under Sections 120.54 or 120.56, Florida Statutes. Mr. Jackson and Mr. Fowler did not file an amended petition.
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 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).
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
Findings Of Fact The Respondent, Florida Parole and Probation Commission, adopted revised rules of practice and procedure which became effective on September 10, 1981. Among these is Rule 23-21.09, Florida Administrative Code, which establishes "matrix time ranges" that are used in determining presumptive parole release dates for persons who are serving prison terms. In determining presumptive parole release dates, the Respondent's rules require that a "salient factor score" be determined based upon such factors as the number of prior criminal convictions, the number of prior incarcerations, total time served in prisons, the inmate's age at the time of the offense which led to the first incarceration, the number of probation or parole revocations, the number of prior escape convictions, and whether burglary or breaking and entering is the present offense of conviction. The degree or severity of the present offense of conviction is then determined. The Respondent's Rule 23-21.09 sets guidelines for time ranges for presumptive parole release dates depending upon the severity of the present offense of conviction and the salient factor score. The more severe the present offense of conviction, the longer will be the period before the presumptive parole release date. Similarly, given the severity of the offense, the higher the salient factor score the longer will be the period before the presumptive parole release date. The rule replaced a rule which set different matrix time ranges. The new rule generally sets longer time ranges, but this is not uniformly true. The Petitioner, Seimore Keith, is an inmate presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a facility maintained by the Florida Department of Corrections. Petitioner Keith was convicted of grand theft in July, 1980, and was sentenced to serve five years in prison. The conviction was the result of a guilty plea which was entered in accordance with a plea bargain. During plea negotiations, Petitioner Keith was advised that his presumptive parole release date under Florida Parole and Probation Commission rules would require that he serve no more than 25 months in prison. At the time that Petitioner Keith's presumptive parole release date was set by the Respondent, the new Rule 23-21.09 had come into effect, and the Petitioner's presumptive parole release date was set to require that he serve 32 months in prison. The Petitioner, Ronnie McKane, is presently incarcerated at Polk Correctional Institution. He was convicted of the offense of armed robbery in February, 1981. Under rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Petitioner McKane's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by Respondent in setting McKane's presumptive parole release date. The Petitioner, Daniel P. Hull, is presently incarcerated at Polk Correctional Institution. He was convicted in September, 1971, of the offense of robbery and sentenced to serve ten years in prison. He was paroled in 1974, but was reincarcerated as a result of a parole violation in 1976. In 1977 he escaped, and was recaptured in January, 1981. On June 1, 1961, Petitioner Hull was convicted of the offense of escape and sentenced to serve nine months. Under the rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Hull's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rules were applied by Respondent in setting Hull's presumptive parole release date, and it has been set subsequent to the expiration of his sentence. Hull will therefore be released when his sentence expires in March, 1982. The Petitioner, Douglas L. Adams, was convicted of the offenses of possession of marijuana and uttering a forged instrument, and sentenced in February, 1981, to two consecutive five-year sentences. Under the rules in effect when Adams was sentenced, which was prior to the adoption of Rule 23- 21.09, Adams' presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by the Respondent in setting Adams' presumptive parole release date. During 1980, the Respondent directed its staff to begin considering proposed changes to its rules of practice and procedure. Various proposals were considered, and by September, 1980, a proposed rule package had been developed. The Respondent directed its staff to submit the proposed rule package to the Governor and members of the Cabinet, various pertinent legislators, county and circuit judges, prosecutors and public defenders, superintendents of each prison in the State, and to members of the Supreme Court and the district courts. The Commission opted to conduct various workshops throughout the State, and to invite all interested persons to share their input. Notices of the workshops were published in the Florida Administrative Weekly. The workshops were conducted, and the Commission commenced formal rule-making proceedings. Notice of rulemaking was published in the Florida Administrative Weekly, and hearings were scheduled. Notice of the formal rulemaking proceedings was also published in the St. Petersburg Times, the Pensacola Journal, the Tallahassee Democrat, the Orlando Sentinel-Star, and the Florida Times-Union. Persons who had requested specific notification were provided it. In response to this notice, the Respondent received considerable written input, and oral presentations were made at hearings that were conducted. The final hearing in the rule-making proceeding was conducted on June 19, 1981, and the rules, including Rule 23- 21.09, were thereafter adopted effective September 10, 1981. Notice of the proposed rule changes and of the formal rulemaking proceeding was not specifically disseminated to inmates at Florida's prisons. The proposed rules were for- warded to the superintendent of each facility. At some of the institutions the proposed rules were apparently posted. All persons who requested copies of the proposed rules from the Florida Parole and Probation Commission were provided them. Numerous prisoners and organizations that represent prisoners made input during the various states of the rulemaking proceeding. None of the Petitioners in this matter were specifically noticed of the rulemaking proceeding. One of the Petitioners had heard that rules were being proposed, and requested copies of them from members of the Legislature or from Department of Corrections personnel. None of the Petitioners requested copies of the proposed rules from the Respondent or anyone connected with the Respondent.
The Issue Whether the Petitioner is entitled to fees and costs pursuant to Section 120.595(4), Florida Statutes.
Findings Of Fact The Respondent is the state agency responsible for licensing and regulating skilled nursing homes in Florida pursuant to Chapter 400, Florida Statutes. At all times material to the underlying case, the Petitioner operated or controlled three licensed skilled nursing facilities: Harborside Healthcare-Pinewood, Harborside Healthcare-Sarasota, and Harborside Healthcare-Naples. In October of 2001, the Agency filed Administrative Complaints against the Petitioner's three facilities. As to each complaint the Agency relied upon its interpretation of Section 400.121(3)(d), Florida Statutes. The Agency's interpretation of the statute went beyond the plain and unambiguous language of the law. Moreover, such interpretation had not been promulgated by rule. If the interpretation was intended to be the policy of the Agency, the implementation of the policy was not authorized by the statute. The Petitioner pursued three legal strategies: it filed an injunction proceeding in circuit court, a petition to challenge the unpromulgated rule, and vigorously defended the administrative actions filed against its facilities. In so doing, the Petitioner incurred legal expenses and costs necessitated by the Agency's implementation of a policy that had not been established through rule-making procedures. Petitioner's rule challenge alleged that the Agency had failed to follow any rule-making procedures; had enlarged, modified, and contravened the specific provisions of the law; and had implemented a policy that was arbitrary and capricious. Due to the severity of the penalties the Agency sought to impose against the Petitioner, the damage to its reputation in the communities it served, and the resident fear and uncertainty at the facilities, the Petitioner sought and was granted an expedited hearing on the rule challenge. The "Wherefore" clause of the Petitioner's rule challenge clearly stated that Petitioner sought an award of attorneys' fees and costs pursuant to Section 120.595, Florida Statutes. Petitioner had retained outside counsel to pursue each of its legal strategies. On October 31, 2001, a Final Order was entered in the underlying case that directed the Agency to cease and immediately discontinue all reliance on the policy that had not been promulgated through rule-making procedures. That Final Order has not been appealed. The Final Order did not retain jurisdiction for purposes of addressing the Petitioner's request for attorneys' fees and costs. The instant case was opened when the Petitioner filed a motion for attorneys' fees and costs subsequent to the entry of the Final Order in DOAH Case No. 01-3935RU. The matter was assigned a new case number as is the practice of the Division of Administrative Hearings in ancillary proceedings. Accordingly, the instant case, DOAH Case No. 01-4283F, was designated a "fee" case (hence the F at the end of the case number). The initial order entered through the DOAH clerk's office erroneously designated that the fees were sought pursuant to Section 59.11, Florida Statutes. Nevertheless, after the time for appeal of the Final Order (DOAH Case No. 01-3935RU) had elapsed, the matter was scheduled for final hearing. Carole Banks is an attorney employed by the Petitioner as an in-house counsel and director of risk management for the three facilities identified in this record. Ms. Banks is also a registered nurse and has been a member of the Florida Bar since April of 1998. Ms. Banks receives a salary from the Petitioner and is required to perform duties typically associated with her full-time job. Due to the filing of the Administrative Complaints against the facilities, Ms. Banks was required to expend additional time to assist outside counsel to defend the facilities. A portion of that time was attributable to the rule challenge case (DOAH Case No. 01-3935RU). Based upon the testimony of this witness and the exhibits received into evidence it is determined Ms. Banks expended 19.8 hours assisting in the prosecution of the rule challenge case. An appropriate rate of compensation for Ms. Banks would be $150.00 per hour. There is no evidence, however, that the Petitioner was actually required to pay Ms. Banks overtime or an appropriate rate of compensation for her additional work. K. Scott Griggs is an attorney employed by the Petitioner. Mr. Griggs serves as vice president and General Counsel for the Petitioner and is located in Massachusetts. Mr. Griggs did not testify, was not available to explain his time-keeping records, and none of the exhibits in this cause indicate how Mr. Griggs is compensated for his services or what his specific duties entail. While it is certain Mr. Griggs assisted counsel in the prosecution of the underlying case, without relying on hearsay, no determination as to the amount of time spent and the hourly rate that should be applied to such time can be reached. In order to fully protect the Petitioner's interests and those of its residents, the Petitioner retained outside counsel in the underlying case. The law firm of Broad & Cassel was hired to defend the administrative actions, seek injunctive relief, file the underlying case, and pursue other administrative remedies to assist the client. By agreement, Petitioner was to pay the following hourly rates: partners were to be compensated at the rate of $245.00 per hour, associates were to receive $175.00 per hour, and paralegals were entitled to $90.00 per hour. In this case, four partner-level attorneys from Broad and Cassel expended time in furtherance of the client's causes. After reviewing the time records and testimony of the witnesses, it is determined that the partners expended at least 172.6 hours associated with the underlying rule challenge. Additionally, an associate with the Broad & Cassel firm expended not fewer than 12.1 hours that can be directly attributed to the rule challenge case. Additional hours expended contributed to the success of the rule challenge. The Petitioner also incurred costs and expenses associated with the rule challenge. A paralegal expended 4.6 hours (with a $90.00 per hour rate) making copies of the documents used at the hearing. Other costs included court reporter fees, transcripts, telecopy charges, and expert witness fees. It is determined that the Petitioner has incurred $5819.15 in recoverable costs associated with this case and the underlying rule challenge. The hourly rates sought by the Petitioner are reasonable. The time and labor expended by the Petitioner to vigorously protect its legal interests was reasonable given the severity of the penalty sought by the Agency and the circumstances faced by the client. The Petitioner benefited from the efforts of counsel. Due to the time constraints and immediate ramifications faced by the Petitioner, special time and requests were made of the attorneys performing the work for the underlying case. In some instances, the attorneys were required to devote an extensive amount of time to address the client's interests to the exclusion of other work. This was the first time the Broad & Cassel firm had been retained to represent the client. As a result, the attorneys did not have the benefit of a long-term understanding of the facilities and the client's needs. The Broad & Cassel firm and the attorneys assigned to this matter have considerable experience and demonstrated considerable skill, expertise, and efficiency in providing services to the client. Had the Petitioner not prevailed, its ability to honor its hourly agreement with counsel may have been jeopardized. The Agency's expert recognized the difficulties presented by the case and opined that a proper fee would be $42,908. Such amount did not include attorney time spent in preparing for, conducting the fee hearing, or post-hearing activities. Such amount did not cover the amounts depicted in the billing statement from the Broad & Cassel firm. The Petitioner was required to retain expert witnesses to address the fees sought. The calculation of attorney's fees in this cause is complicated by the fact that none of the fees sought would have been incurred by the Petitioner had the Agency not implemented an unlawful policy. That is, had the non-rule policy not been utilized to support Administrative Complaints against the three facilities, none of the fees sought would have been incurred. The Petitioner presented a "shot-gun" approach pursuing every avenue available (including the underlying rule challenge) to dissuade the Agency from pursuing its action against the facilities. Only the rule challenge proved successful. Had the rule challenge not proved successful, residents would have been relocated from their homes. The Petitioner would have incurred extensive financial loss. William E. Williams and Carlos Alvarez testified as experts on behalf of the Petitioner. Their testimony has been considered and their opinions regarding the reasonableness of the fees sought by Petitioner has been deemed persuasive. Based upon the totality of the evidence presented, it is determined that the Petitioner prevailed in the rule challenge. The Agency has not demonstrated that the non-rule statement was required by the Federal Government to implement or retain a delegated or approved program or to meet a condition governing the receipt of federal funds. The formal hearing for fees in this cause lasted 4.75 hours. Petitioner's counsel expended time in preparation for the hearing and in post hearing activities. A reasonable fee associated with that time would not be less than $15,000.00.
Findings Of Fact The special condition in invitation to bid No. 69-360-240-F that petitioner challenges here provides: PUBLIC ENTITY CRIMES Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy(s) of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. Joint Exhibit No. 1. Under the heading "Bid Conditions," Rule 13A-1.008(2), Florida Administrative Code, incorporates form PUR 7068 by reference, and requires that invitations to bid on term contracts include the form. Challenge Untimely The parties stipulated in their prehearing stipulation as follows: "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F. "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [Like the original invitation to bid, the revised invitation to bid contained the following language: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit No. 5.] "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid. "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation. "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document. "6. The Division of Purchasing determined that the petitioner's bid was non-responsive. "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent. "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing. "10. On August 21, 1990, the petitioner filed a Petition for Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled `Public Entity Crimes' on page four of the invitation to bid." No Future Effect Already superseded in subsequent invitations by a revised version (T.142, 171), any special condition like the one petitioner challenges will soon undergo further change. Effective October 1, 1990, Section 287.133(3)(a), Florida Statutes will be amended to read: * Prior to entering into a contract a person shall file a sworn statement with the contracting officer . . . <<for the calendar year. The department shall adopt by rule a standard sworn statement . . .. The form shall include>> [[on a form to be promulgated by the department by rule, including the following information:]] The name of the person. The business address . . . * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Chapter 90-33, Sections 1 and 3, Laws of Florida (1990) (language added or deleted by Chapter 90-33). "Only if the responding bidder does not have the [sworn statement on public entity crimes] . . . on file with [respondent's] . Division of Purchasing on or after October 1 this year" (T. 135) must a sworn statement accompany a bid. The amended statute "effective on October 1 allows . . . submission of the public entity crime form document on a calendar year basis. So, it does not have to be submitted with each and every bid." (T. 135.) Petitioner does not anticipate bidding in response to any other of respondent's invitations to bid any time before October 1, 1990. When asked, "Is it Jones' Floor Covering's intention after October 1st, to submit only one sworn statement a year to the Division of Purchasing," (T. 95) Rocky Wayne Jones, a vice- president in petitioner's employ, answered, "Whatever we need to do, that's what we will do to be able to bid on State work. If that's what the law is, then we will do what the law says to do." T. 95.
