Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
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 Whether the Petitioners are entitled to an award of attorneys' fees and costs pursuant to Sections 120.569(2)(e) and 120.595(1), Florida Statutes, and, if so, in what amounts.
Findings Of Fact On October 3, 2001, AHCA served three Administrative Complaints on HHCI, apparently intending to revoke HHCI's licenses to operate nursing homes on the basis of a retroactive application of Section 400.121(3)(d), Florida Statutes (2001). The statute states in pertinent part: (3) The agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that: * * * (d) Is cited for two class I deficiencies arising from separate surveys or investigations within a 30-month period. HHCI filed petitions challenging AHCA's allegations in the Administrative Complaints. On October 12, 2001, HHCI filed a challenge to the non- rule policy of retroactive application (DOAH Case No. 01-3935RU) and a hearing was scheduled for October 23, 2001. The Petitions in the Administrative Complaint cases were forwarded by AHCA to DOAH on October 19, 2001, and were consolidated under DOAH Case No. 01-4124. The Final Order in Case No. 01-3935 RU, declaring AHCA's policy of retroactive application invalid, was issued on October 31, 2001. HHCI filed a Motion for Award of Attorney's fees in DOAH Case No. 01-4124 on November 2, 2001. That motion forms the basis for the instant case. At the time the Administrative Complaints were filed, the three HHCI facilities held standard licenses and were apparently operating in compliance with applicable law, with no unresolved survey violations pending. The day after the Administrative Complaints were served, AHCA issued a press release and scheduled a telephonic "media call-in" to reply to questions from interested press representatives. The result of the media attention was to cause great concern to both HHCI and the residents of their facilities as to the proposed closure of the facilities. AHCA distributed a letter to residents indicating that unless HHCI challenged the action, the facility would be closed in approximately 60 days. The AHCA letter advised residents that if HHCI challenged the proposed action, the proposed action "may be delayed." The AHCA letter did not indicate that any resolution of the dispute other than facility closure was possible. The result of the attention and statements by AHCA's representative was to cause great concern among residents and their families as to what living arrangements would be available for residents of the facilities. AHCA also placed monitors in each facility to discuss the pending action with residents and their families, as well as to observe the facility operations. There is no evidence that the placement of monitors in the facilities offered any level of comfort to residents or families. The monitors also apparently began citing the facilities for alleged additional violations of various regulations. In response, HHCI officials immediately sought legal counsel to address the situation. Counsel at the Washington, D.C., law firm, Proskauer Rose, became involved in representing HHCI. HHCI also retained Counsel in the Tallahassee office of the Broad and Cassel law firm, with whom it had no prior relationship. HHCI directed its legal team to review all possible options to resolving the matter expeditiously. Counsel considered both federal and state court action and filed a request for injunction in state court. HHCI also attempted to resolve the matter informally. On October 8, 2001, HHCI obtained an opinion from the Joint Administrative Procedures Committee (JAPC), a standing committee of the Florida Legislature, which concluded that "a strong legal argument" could be made that the retroactive application of the statute was improper. There is no evidence that AHCA considered the JAPC opinion. In any event, because informal attempts to resolve the matter were unsuccessful, HHCI legal counsel began an intensive effort to defend the company against the AHCA action. The Final Order in Case No. 01-3935RU held that there was an absence of legal authority to apply the new law retroactively. There was no appeal of the Final Order. After the Final Order was issued, AHCA abandoned the Administrative Complaints that sought to revoke HHCI's licenses and close the facilities. In this proceeding, HHCI seeks fees it incurred for the Broad and Cassel and the Proskauer Rose law firms and for presentation of the testimony of Al Clark at the fee hearing. HHCI presented nine invoices from Broad and Cassel that were admitted as HHCI Exhibit 1. The invoices submitted in this case do not duplicate time that was invoiced as part of the rule challenge-related fee case. Invoice #469914 dated November 1, 2001, is for a total of $23,835.87, including fees of $23,565 and costs of $270.87. The majority of the work in these cases was performed in October. The invoice indicates time spent considering several theories of defense to the complaints. Invoice #474211 dated December 1, 2001, is for a total of $2,282.02, including fees of $1,981.50 and costs of $300.52. Invoice #479185 dated January 2, 2002, is for a total of $257.59, including fees of $245 and costs of $12.59. Invoice #491866 dated February 9, 2002, is for a total of $5,463.05, including fees of $5,116.50 and costs of $346.55. Invoice #496833 dated April 3, 2002, is for a total of $161.74, including fees of $147 and costs of $14.74. Invoice #505207 dated June 7, 2002, is for a total of $738.68, including fees of $735 and costs of $3.68. Invoice #507485 dated July 2, 2002, is for a total of $296.17, including fees of $294 and costs of $2.17. Invoice #515997 dated October 2, 2002, is for a total of $1,625.93, including fees of $1586 and costs of $39.93. Invoice #516952 dated October 16, 2002, is for a total of $2,903.35, including fees of $2878 and costs of $25.35. HHCI presented the testimony of Al Clark, who was accepted as an expert on the issue of attorney fees. Mr. Clark testified as to the reasonableness of the fees and costs charged to HHCI by the Broad and Cassel law firm. Mr. Clark's testimony was not contradicted and is credited. The time and labor expended by employees of the Broad and Cassel law firm were reasonable in light of the legal issues presented by the administrative actions proposed by AHCA. The presumed goal of AHCA's action was to revoke the licensure of HHCI's three nursing homes. Broad and Cassel provided the substantial skill and expertise required to supply the necessary legal services. Broad and Cassel billed HHCI at an hourly rate. The hourly rates charged by Broad and Cassel personnel are reasonable. The rates ranged from $245 per hour for lead counsel to $90 per hour for support counsel. There was no prior business relationship between Broad and Cassel and HHCI. Broad and Cassel counsel has significant experience and skill in health care law and provided their services efficiently throughout the dispute. Because the proposed sanction was severe, and because the agency publicized its legal action, HHCI required an immediate legal response resulting in an intense initial amount of work by Broad and Cassel. Broad and Cassel personnel represented HHCI legal interests throughout the administrative proceedings and prevailed in defending against the proposed administrative action. Subsequent to the hearing, HHCI submitted Mr. Clark's invoice for $1,012.50. Mr. Clark's invoice reflects a reasonable effort expended in addressing the costs and fees at issue in this case. At the hearing, Mr. Clark further testified that an amount up to $10,000 would be possible for the resolution of this fee case. At this time, none of this expense has been incurred and is not properly awarded. Based on the foregoing, HHCI has satisfied the factors set forth in Florida Bar Rule 4-1.5(b) related to awards of fees and costs in this case, and is entitled to an award of fees and costs for the Broad and Cassel billing and for Al Clark's invoice. Mr. Clark was not asked for, and did not offer, an opinion about the reasonableness of the Proskauer Rose fees. There is no credible evidence supporting an award of fees for work performed by the Proskauer Rose firm. Based on the testimony presented during the hearing, the evidence fails to establish that the charges by the Proskauer Rose firm as set forth on the exhibit are reasonable. Billing records admitted into evidence as HHCI Exhibit 3 contain references to regulatory matters not directly at issue in the proceedings giving rise to this request for fees. Such additional matters include nursing home surveys performed in October 2001, preparations for informal dispute resolution (IDR) meeting related to survey issues, and regulatory matters occurring in other states. The IDR preparations, although apparently prompted by alleged problems identified by the monitors, were not at issue in the Administrative Complaints that form the basis for this fee request. Although HHCI asserts that an Administrative Law Judge, hearing the Administrative Complaints seeking license revocation, could have considered the alleged problems, such allegations would have required amendment of the pending Administrative Complaints. More likely, the allegations would have been the subject of new Administrative Complaints that would have been litigated separately, and, as such, costs related to IDR preparation are not properly awarded in the instant case. Further, the Proskauer Rose invoices indicate that hours billed on one invoice in "File #84028.0014" for October 12 (description beginning with "review faxed 256") and October 22 (description beginning with "Meeting with S. Davis and C. Schessler re preparation for IDR") were also billed on another invoice in "File #84028.0015." Duplicate billings would not support an award of attorney fees. AHCA'S MOTION FOR SUMMARY JUDGMENT On April 9, 2002, HHCI, a foreign limited partnership operating in the State of Florida, canceled the registration of HHCI Limited Partnership with the Florida Department of State. HHCI Limited Partnership continues to operate in other states and is registered in Massachusetts.
Findings Of Fact At all times material hereto Petitioner was an inmate incarcerated at Union Correctional Institution within the custody and control of the State of Florida, Department of Corrections. Respondent stipulated at final hearing that Petitioner has "standing" to maintain the rule challenge proceeding. The parties also stipulated that the rule under challenge in this proceeding is a rule adopted by Respondent in accordance with the settlement reached in a previous administrative rule challenge proceeding in which Petitioner was a party. The parties further stipulated that ". . . inmates within the Respondent's care enjoy meaningful access to the courts." There are presently approximately 2,500 inmates incarcerated at Union Correctional Institution. There is one Xerox machine located in the law library at Union Correctional Institution, and the librarian has two inmate clerks assigned to assist in the operation of the library. There is insufficient money in the library budget to fund either additional copying machines or additional personnel to assist in copying materials other than those authorized under Respondent's rule.
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.
The Issue The issue in this case is whether attorneys' fees and costs should be awarded to Respondent, Palm Beach County, and Intervenor, Richard Siemens, pursuant to Section 120.595, Florida Statutes (1997).
Findings Of Fact A. The Parties. 1. Petitioners are all individuals residing in Palm Beach County, Florida (hereinafter referred to as the "County"). 2. Respondent, the Board of County Commissioners of Palm Beach County (hereinafter referred to as the "Board"), is a political subdivision of the State of Florida and the governing body of the County. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (1997)(hereinafter referred to as the "Act"). Intervenor, Richard Siemens, resides in the County. The Subject Amendment. On September 22, 1997, the Board adopted an amendment to the its comprehensive plan by Ordinance Number 97-28 (hereinafter referred to as the "Subject Amendment"). The Subject Amendment modified the Traffic Circulation Element of the Palm Beach County Comprehensive Plan. Following a review of the Subject Amendment, the Department issued a Notice of Intent finding the Subject Amendment to be "in compliance," as defined in Section 163.3184(1), Florida Statutes (1997). Initiation of the Challenge to the Subject Amendment. On December 24, 1997, Mort Hillman, Rosa Durando, and Barry Silver, filed a Petition for Formal Administrative Hearing with the Department requesting a formal hearing pursuant to Section 163.3184(9), Florida Statutes (1997). The petition was filed by Richard Grosso, Esquire, and Mr. Silver, who is a member of The Florida Bar, as co-counsel on behalf of all Petitioners. On January 12, 1998, the petition was filed by the Department with the Division of Administrative Hearings. The Department requested that the petition be assigned to an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes (1997). The petition was designated Case No. 98-0202GM and was assigned to the undersigned. On January 12, 1998, a Petition to Intervene in this case was filed on behalf of Richard Siemens. Scheduling of the Final Hearing. On January 15, 1998, before the Petition to Intervene was ruled on, Mr. Siemens filed a Notice Demanding Expeditious Resolution of Proceeding pursuant to Section 163.3189(3), Florida Statutes (1997). Section 163.3189(3), Florida Statutes (1997), requires that proceedings initiated pursuant to Section 163.3184, Florida Statutes (1997), be scheduled for final hearing "no more than 30 days after receipt" of a demand for expeditious resolution from any party to the proceeding. At the time Mr. Siemens filed the demand for expeditious resolution, he had not yet been granted leave to intervene in this matter. On January 21, 1998, a motion hearing was conducted by telephone. Immediately before the commencement of the motion hearing, Petitioners filed a Response to Petition to Intervene and Motion for Expedited Hearing. Petitioners objected to conducting an expedited hearing but expressed no opposition in their response or during the motion hearing to Mr. Siemens' intervention in this proceeding. Therefore, Mr. Siemens was granted leave to intervene. In light of the fact that Mr. Siemens did not become party to this proceeding until January 21, 1998, the demand for expedited hearing was treated as having been received on January 21, 1998. Pursuant to Section 163.3189(3), Florida Statutes (1997), the formal hearing of this case was, therefore, required to be scheduled on or before February 20, 1998. In Petitioners' response to the notice of demand, Mr. Silver objected to the demand for expedited hearing of this matter and asserted that the case should be continued pursuant to Section 11.111, Florida Statutes (1997). Section 11.111, Florida Statutes (1997), provides for a continuance of any administrative hearing in which a member of the Florida Legislature is either an attorney representing the litigants, a party, or a witness. The continuance applies to any period of time during which committee work is required, plus one day prior and one day subsequent to the committee work, and during the fifteen days prior and subsequent to any session of the Legislature. It was pointed out in Petitioners' response to the demand for expedited hearing that Mr. Silver, who appeared as counsel for his co-Petitioners and as a Petitioner, was a member of the Florida House of Representatives. It was represented during the motion hearing that Mr. Silver was required to attend to committee work during the weeks of February 2, 1998, and February 15, 1998. It was also represented that the 1998 Legislative Session was scheduled to commence March 3, 1998. Therefore, pursuant to Section 11.111, Florida Statutes (1997), it was argued that no hearing should be scheduled during the weeks of February 2, 1998, and February 15, 1998, during the fifteen days prior to March 3, 1998, and for fifteen days after the end of the Legislative Session. Although the amount of time available to schedule an expedited hearing of this case was severely limited by Mr. Silver's schedule, it was determined that Section 11.111, Florida Statutes (1997), did not require a continuance of the hearing during the week of February 9, 1998. Therefore, in an effort to accommodate the provisions of Sections 11.111 and Section 163.3189(3), Florida Statutes (1997), the final hearing was scheduled for the week of February 9, 1998. The afternoon of February 9, 1998, was reserved to hear argument on several motions. The final hearing was scheduled to commence the morning of February 10, 1998, only a little more than a month after the petition initiating this matter was filed with the Department. The final hearing was scheduled for the week of February 9, 1998, over objections of Petitioners and counsel for Petitioners, Mr. Grosso, who was scheduled to appear at another administrative hearing also scheduled for the week of February 10, 1998. Preparation of the Petitioner and for the Final Hearing. Petitioners have no training in land use planning. Mr. Hillman is a retired musician. Ms. Durando is also retired, having formally managed race horses. Mr. Silver is a sole practitioner and State legislator. None of Petitioners are particularly knowledgeable about the Act or the terms "in compliance." While Petitioners did not conduct an extensive investigation prior to filing their petition in this case, they retained legal counsel and relied upon counsel to prepare their petition. After the petition was filed, there was little time for investigation by Petitioners or counsel. In light of the fact that the parties were not put on notice until January 21, 1998, that the final hearing was to commence on February 10, 1998, the parties had only 12 working days to prepare for the final hearing. Mr. Silver was involved with legislative committee meetings for 5 of those days. Mr. Grosso was involved in preparation for other litigation before the Division of Administrative Hearings schedule for the same week. During the time prior to the commencement of the final hearing, there were numerous discovery requests which had to be responded to on an expedited basis, several motions had to be responded to, and a prehearing stipulation had to be prepared. Based upon the lack of time between the scheduling of the final hearing and the commencement of the final hearing, Petitioners did not have an adequate amount of time to prepare their case for final hearing. Because of the short period of preparation time, little discovery was conducted by the parties. To the extent that limited discovery was inadequate to prepare the parties for the final resolution of this matter, there simply was insufficient time for further discovery. On February 2 and 3, 1998, only a week before the commencement of the final hearing, the depositions of Petitioners and Lance deHaven-Smith were taken by Intervenors. Mr. deHaven-Smith was designated by Petitioners as an expert witness on planning issues. Mr. deHaven-Smith's deposition consists of almost 160 pages of testimony. Among other things, Mr. deHaven-Smith was asked the following question by counsel for Mr. Siemens and gave the following response: Q . . . . Is it your opinion that this issue of whether the County should or should not apply the CRALLS with respect to this 2.3 mile section of Clint Moore Road, in consideration of these issues that you and I have talked about relating to schools, and traffic and those kinds of things, is it your position that it is not even fairly debatable as to whether that decision is consistent with the policies and goals of the Comprehensive Plan of Palm Beach County relating to the agricultural reserve area? A I don't think it is fairly debatable. I can understand if you are looking at the trade-off between the developments, and the 900, versus 500. And you could see how somebody could easily get sucked in to wanting to make those trade- offs. But you have got a plan that is committing you to not only the agriculture reserve area, but the effort to keep traffic down off of that particular road. And I have not understood it. Now, maybe there is a reason that you could apply this sort of temporary concurrency exception beyond three years, but my understanding of the law is that you are limited to three years. Page 65, lines 19 to 25 and page 66, lines 1-22. Despite the foregoing opinion, Mr. deHaven-Smith also testified extensively about his concerns about the Subject Amendment. The Final Hearing. On the afternoon of February 9, 1998, a hearing was conducted on outstanding motions. The formal hearing commenced on February 10, 1998, and continued through February 11, 1999. During the final hearing Petitioners presented the testimony of Frank Duke, Terry Hess, and George T. Webb. Petitioners offered eight exhibits. Mr. Duke and Mr. Webb are employees of the County. Mr. Duke and Mr. Webb offered testimony concerning the impact of the Subject Amendment. Mr. Hess is an employee of the Treasure Coast Regional Planning Council. Mr. Hess had previously recommended to the Treasure Coast Regional Planning Council that the Subject Amendment be found consistent with the regional plan. While Mr. Hess attempted to testify about concerns he had with the Subject Amendment during the Final Hearing, he ultimately testified that the Subject Amendment was, indeed, consistent with the regional plan. Petitioners did not call Mr. deHaven-Smith or any other expert planner who specifically testified that the Subject Amendment is not "fairly debatable." There were, however, only 7 days following the taking of Mr. deHaven-Smith's deposition and the commencement of the final hearing, giving Petitioners little time to explore the possibility of finding another expert planner. Ultimately there was no direct testimony that it was not fairly debatable that the Subject Amendment is "in compliance." While that issue was the ultimate issue to be decided in this case, nothing about this case required that such an opinion be given at the final hearing in order for Petitioners to have succeeded. Ultimately the resolution of this case turned less on the testimony at final hearing and more on a comparison of the language of the Subject Amendment with the relevant local, regional, and state plans and the Act. Had Petitioners' view of this case been correct, it could have been concluded that it was not fairly debatable that the Subject Amendment was in compliance without any witnesses rendering such an opinion. When all the evidence in this case was weighed, it was apparent that Petitioners' arguments were without merit. It might even be concluded that Petitioners' arguments were frivolous but for two things: (a) the lack of time afforded by the Act to Petitioners to prepare for the final hearing; and (b) the somewhat unique factual circumstances of this case. The unique factual circumstances of this case were that the success of Mr. Siemens' proposed development, which was the catalyst for the Subject Amendment, depended on a provision of the County's plan authorizing CRALLS designations, a designation that would likely not be found "in compliance" with the Act if subject to review today, and the fact that the proposed development was vested and, therefore, not subject to all of the clear prohibition of the County's plan against such developments in the agricultural area Mr. Siemens' property is located in. The Recommended and Final Orders. On April 17, 1998, a Recommended Order was entered in this case after consideration of proposed orders filed by the parties. It was determined that Petitioners had failed to meet their burden of proving that the determination that the Subject Amendment was "in compliance" was not "fairly debatable." It was, therefore, recommended that the Subject Amendment be found "in compliance" under the Act. Petitioners filed "exceptions" to the Recommended Order with the Department. On May 20, 1998, a Final Order was entered in this case. The Department accepted the recommendation of the Recommended Order to find the Subject Amendment to be "in compliance." The Final Order of the Department was subsequently appealed. As a result of the Final Order, the County and Mr. Siemens both are "prevailing parties" and Petitioners are "nonprevailing adverse parties" in this matter. The County/Siemens' Motion for Fees. The County and Mr. Siemens filed the County/Siemens' Motion for Fees on March 16, 1998. The County and Mr. Siemens requested an award of attorneys' fees and costs from Petitioners pursuant to Sections 120.569(2), 120.595(1)(b) and (c), and 163.3184(12), Florida Statutes (1997). The County/Siemens' Motion for Fees was filed after the final hearing in this case but before the Recommended Order was filed. Subsequent to the taking of Mr. deHaven-Smith's deposition and prior to the commencement of the final hearing in this case, Mr. Siemens put Petitioners on notice that he intended to seek an award of attorneys' fees and costs from Petitioners. An award pursuant to Section 120.595(1)(b), Florida Statutes (1997), may be made in a final order entered by the Department only after an administrative law judge finds that the nonprevailing party in a case "participated" in the case for an "improper purpose." I. Petitioners did not Participate in this Proceeding for an Improper Purpose. Pursuant to Section 163.3184, Florida Statutes, Petitioners had the burden of proving that it was not "fairly debatable" that the Subject Amendment was "in compliance." This burden of proof was a substantial one. Looking at the proceeding as a whole, from the filing of the petition to the final hearing of this case, and taking into account the lack of time allowed Petitioners to prepare for the final hearing and the unique factual circumstances of this case, the evidence failed to prove that Petitioners participated in this matter for an "improper purpose."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a supplemental Final Order denying Palm Beach County and Siemens' Joint Motion for Attorneys' Fees and Costs pursuant to Section 120.595, Florida Statutes (1997). DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 2nd day of April, 1999. COPIES FURNISHED: Richard Grosso, Esquire Post Office Box 19630 Plantation, Florida 33318 Barry M. Silver, Esquire Corporate Centre, Suite 308 7777 Glades Road Boca Raton, Florida 33434-4194 Barbara Alterman, Esquire Robert Banks, Esquire Assistant County Attorneys Post Office Box 1989 West Palm Beach, Florida 33401 Shaw Stiller, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 C. Gary Williams, Esquire Stephen C. Emmanuel, Esquire Ausley and McMullen Post Office Box 391 Tallahassee, Florida 32302 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jim Robinson, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
Findings Of Fact The Respondent, the Florida Department of Revenue (hereinafter referred to as the "Department"), notified Petitioner, Irvin L. Olden, by a Revised Notice of Intent to Make Documentary Stamp Tax and Discretionary Surtax Audit Changes (hereinafter referred to as the "Revised Notice"), that he owed $164.45 in documentary stamp tax, plus penalty of $41.11 and interest thru June 6, 1994 of $70.71. See Petitioner's exhibit 3. The Revised Notice was entered May 31, 1994. Mr. Olden was informed in the Revised Notice that the "legal basis" of the proposed audit changes was "Chapters 201.01, 201.02, 201.08, 201.17, F. S." and "Rules 12B-4.012(1) and (2), F.A.C." Mr. Olden filed a written protest to the Revised Notice by letter dated June 23, 1994. On July 12, 1994, the Department issued a letter in response to the written protest. Petitioner's exhibit 2. In pertinent part, Mr. Olden was informed: Your Quit Claim Deed recorded November 6, 1990, transferred half interest in real estate from Sue H. Olden to Irwin L. Olden. There was a $60,000 mortgage on the property. According to Rules 12B-1.012 (1) and (2), and 12B-1.013 (25) and (32), Florida Administrative Code, this transfer is taxable because of the mortgage on the property. The rules state that any deed is taxable if consideration for the property is given. The rules go on to state that a mortgage on the property is consideration. The rules are attached. The letter incorrectly referred to Rule 12B-1.012(1) and (2), Florida Administrative Code, and Rule 12B-1/013(25) and (32), Florida Administrative Code. The Department intended to refer to Rules 12B-4.012 and 12B-4.013, Florida Administrative Code. Mr. Olden timely challenged the proposed assessment of tax pursuant to Section 120.57(1), Florida Statutes. On November 23, 1994, Mr. Olden also filed a petition with the Division of Administrative Hearings challenging the validity of Rule 12B-4.012(2), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. Rule 12B-4.012(2), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides, in pertinent part: (2) Definitions: (a) "Consideration" under s. 201.02, F.S., includes but shall not be limited to, money paid or to be paid, the amount of any indebtedness discharged by a transfer of any interest in real property, mortgage indebtedness and other encumbrances which the real property interest being transferred is subject to, notwithstanding the transferee may be liable for such indebtedness. Where property other than money is exchanged for interest in real property, there is the presumption that the consideration is equal to the fair market value of the real property interest being trans- ferred. [Emphasis added]. Mr. Olden specifically challenged the portion of the Challenged Rule emphasized in finding of fact 6. Mr. Olden alleged that the Challenged Rule is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. The language of the Challenged Rule which Mr. Olden has alleged is invalid had an effective date of February 13, 1991. Although not clearly stated in Mr. Olden's petition, Mr. Olden's standing to challenge the Challenged Rule is based upon the fact that the Department relied on the Challenged Rule in the Revised Notice and the letter in response to Mr. Olden's written protest. Pursuant to the Department's Motion to Dismiss for Lack of Standing filed by the Department on February 24, 1995, the Department stipulated to the following: The Department stands by its assessment in the assessment proceeding. The statute which was recited in the Department's assessment provides ample authority for the assessment without reference to a subsequently promulgated rule. . . . The Department does not seek to retroactively apply a rule to a transaction which preceded the effective date of that rule. Any statement in the Notice of Proposed Assessment which indicates an intention to apply a rule on a retroactive basis is hereby withdrawn. . . . However, while the rule is valid, it now appears that Petitioner lacks standing to challenge a rule which is not intended to be applied to Petitioner. Petitioner has standing to challenge the assessment and to challenge the Department's prerule application of the Section 201.02, Fla. Stat. (1990). . . . Now that the Department formally withdraws any reference to the rule in support of its assessment against the Petitioner, there is no reason for this matter to proceed further. Counsel for the Department reiterated the Department's position at hearing.
