00-000756F Support Terminals Operating Partnership, L.P. vs. Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 8, 2000.

Summary: Attorney`s fees awarded on a per party basis, not per case basis; challenger need not participate in an appeal in order to collect fees incurred at the administrative level.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDERSON COLUMBIA COMPANY, )

INC.; PANHANDLE LAND & )

TIMBER COMPANY; SUPPORT )

TERMINALS OPERATING )

PARTNERSHIP, L.P.; COMMODORES )

POINT TERMINAL CORPORATION; )

OLAN B. WARD, SR.; MARTHA )

P. WARD; ANTHONY TARANTO; )

ANTOINETTE TARANTO; J.V. )

GANDER DISTRIBUTORS, INC.; )

J.V. GANDER, JR.; and THREE )

RIVERS PROPERTIES, INC., )

)

Petitioners, )

)

vs. ) Case Nos. 00-0754F

) 00-0755F

BOARD OF TRUSTEES OF THE ) 00-0756F

INTERNAL IMPROVEMENT TRUST ) 00-0757F

FUND, ) 00-0828F

)

Respondent. )

______________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in these cases

on June 19, 2000, in Tallahassee, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: Timothy P. Atk inson, Esquire

(00-0754F and Oertel, Hoffman, Fernandez & Cole, P.A.

00-0755F) Post Office Box 1110

Tallahassee, Florida 32302-1110

For Petitioners: Daniel D. Richardson, Esquire

(00-0756F and LeBoeuf, Lamb, Greene & MaCrae, L.L.P.

00-0757F) 50 North Laura Street, Suite 2800

Jacksonville, Florida 32202-3656

For Petitioners: Thomas M. Shuler, Esquire

(00-0828F) Post Office Drawer 850

Apalachicola, Florida 32329-0850

For Respondent: Suzanne B. Brantley, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether Petitioners' Motions for Attorney's

Fees should be granted, and if so, in what amount.

PRELIMINARY STATEMENT

These matters began on February 15, 2000, when Petitioners

in Case Nos. 00-0754F and 00-0755F filed Motions for Attorney's

Fees under Section 120.595(2), Florida Statutes (1999), seeking

reimbursement of attorney's fees incurred in challenging proposed

Rule 18-21.019(1), Florida Administrative Code. The motions were

filed after the First District Court of Appeals issued its

opinion in Anderson Columbia Company, Inc. et al. v. Board of

Trustees of the Internal Improvement Fund , 748 So. 2d 1061 (Fla.

1st DCA 1999), holding that the rule was an invalid exercise of

delegated legislative authority. Similar motions were filed by

Petitioners in Case Nos. 00-0756F and 00-0757F on February 16,

2000, and by Petitioners in Case No. 00-0828F on February 22,

2000. In the latter case, Petitioners also seek recovery as a

prevailing small business party under Section 57.111, Florida

Statutes (1999). Responses to the motions were filed by

Respondent, Board of Trustees of the Internal Improvement Trust

Fund, on March 3 and 15, 2000.

On April 24, 2000, the parties filed a Joint Stipulations of

Fact Related to Attorney's Fees and Costs Issues. Having

stipulated to the facts, including the use of the record in the

underlying cases, the parties requested oral argument on the

remaining issues of law. The matters were then scheduled for

final hearing on May 24, 2000, in Tallahassee, Florida. At the

request of Respondent, the matters were rescheduled to June 19,

2000, at the same location. Counsel in Jacksonville and

Apalachicola, Florida, participated by telephone.

There is no transcript of the hearing. Proposed Findings of

Fact and Conclusions of Law were filed by the parties on July 5,

2000, and they have been considered in the preparation of this

Final Order. In addition, Respondent filed a Memorandum of Law

in support of its submission. Finally, on July 7, 2000,

Petitioners in Case No. 00-0828F filed a Memorandum Opposing

Respondent's Attempt to Withdraw its Stipulation.

FINDINGS OF FACT

Based upon the stipulation of counsel, the papers filed

herein, and the underlying record made a part of this proceeding,

the following findings of fact are determined:

A. Background

1. In this attorney's fees dispute, Petitioners, Anderson

Columbia Company, Inc. (Anderson Columbia) (Case No. 00-0754F),

Panhandle Land & Timber Company, Inc. (Panhandle Land) (Case No.

00-0755F), Support Terminals Operating Partnership, L.P. (Support

Terminals) (Case No. 00-0756F), Commodores Point Terminal

Corporation (Commodores Point) (Case No. 00-0757F), and Olan B.

Ward, Sr., Martha P. Ward, Anthony Taranto, Antoinette Taranto,

J.V. Gander Distributors, Inc., J.V. Gander, Jr., and Three

Rivers Properties, Inc. (the Ward group) (Case No. 00-0828F),

have requested the award of attorney's fees and costs incurred in

successfully challenging proposed Rule 18-21.019(1), Florida

Administrative Code, a rule administered by Respondent, Board of

Trustees of the Internal Improvement Trust Fund (Board). In

general terms, the proposed rule essentially authorized the

Board, through the use of a qualified disclaimer, to reclaim

sovereign submerged lands which had previously been conveyed to

the upland owners by virtue of their having filled in,

bulkheaded, or permanently improved the submerged lands.

2. The underlying actions were assigned Case Nos. 98-

1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, and an evidentiary

hearing on the rule challenge was held on May 21, 1998. That

proceeding culminated in the issuance of a Final Order in Support

Terminals Operating Partnership, L.P. et al. v. Board of Trustees

of the Internal Improvement Trust Fund , 21 F.A.L.R. 3844 (Div.

Admin. Hrngs., Aug. 8, 1998), which determined that, except for

one challenged provision, the proposed rule was valid.

3. Thereafter, in the case of Anderson Columbia Company,

Inc. et al. v. Board of Trustees of the Internal Improvement

Trust Fund , 748 So. 2d 1061 (Fla. 1st DCA 1999), the court

reversed the order below and determined that the rule was an

invalid exercise of delegated legislative authority. Petitioners

then filed their motions.

B. Fees and Costs

4. There are eleven Petitioners seeking reimbursement of

fees and costs. In its motion, Anderson Columbia seeks

reimbursement of attorney's fees "up to the $15,000 cap allowed

by statute" while Panhandle Land seeks identical relief. In

their similarly worded motions, Support Terminals and Commodores

Point each seek fees "up to the $15,000 cap allowed by statute."

Finally, the Ward group collectively seeks $9,117.00 in

attorney's fees and $139.77 in costs.

5. In the Joint Stipulations of Fact filed by the parties,

the Board has agreed that the rate and hours for all Petitioners

"were reasonable." As to all Petitioners except the Ward group,

the Board has further agreed that each of their costs to

challenge the rule exceeded $15,000.00. It has also agreed that

even though they were not contained in the motions, requests for

costs by Support Terminals, Commodores Point, Anderson Columbia,

and Panhandle Land in the amounts of $1,143.22, $1,143.22,

$1,933.07, and $1,933.07, respectively, were "reasonable."

Finally, the Board has agreed that the request for costs by

the Ward group in the amount of $139.77 is "reasonable."

6. Despite the stipulation, and in the event it does not

prevail on the merits of these cases, the Board contends that the

four claimants in Case Nos. 00-754F, 00-755F, 00-0756F, and 00-

757F should be reimbursed only on a per case basis, and not per

client, or $7,500.00 apiece, on the theory that they were sharing

counsel, and the discrepancy between the amount of fees requested

by the Ward group (made up of seven Petitioners) and the higher

fees requested by the other Petitioners "is difficult to

understand and justify." If this theory is accepted, it would

mean that Support Terminals and Commodores Point would share a

single $15,000.00 fee, while Anderson Columbia and Panhandle Land

would do the same.

7. Support Terminals and Commodores Point were unrelated

clients who happened to choose the same counsel; they were not a

"shared venture." Each brought a different perspective to the

case since Commodores Point had already received a disclaimer

with no reversionary interest while Support Terminals received

one with a reversionary interest on June 26, 1997. The latter

event ultimately precipitated this matter and led to the proposed

rulemaking. Likewise, in the case of Anderson Columbia and

Panhandle Land, one was a landowner while the other was a tenant,

and they also happened to choose the same attorney to represent

them. For the sake of convenience and economy, the underlying

cases were consolidated and the matters joined for hearing.

C. Substantial Justification

8. From a factual basis, the Board contends several factors

should be taken into account in determining whether it was

substantially justified in proposing the challenged rule. First,

the Board points out that its members are mainly lay persons, and

they relied in good faith on the legal advice of the Board's

staff and remarks made by the Attorney General during the course

of the meeting at which the Board issued a disclaimer to Support

Terminals. Therefore, the Board argues that it should be

insulated from liability since it was relying on the advice of

counsel. If this were true, though, an agency that relied on

legal advice could never be held responsible for a decision which

lacked substantial justification.

9. The Board also relies upon the fact that it has a

constitutional duty to protect the sovereign lands held in the

public trust for the use and benefit of the public. Because

lands may be disclaimed under the Butler Act only if they fully

meet the requirements of the grant, and these questions involve

complex policy considerations, the Board argues that the

complexity and difficulty of this task militate against an award

of fees. While its mission is indisputably important, however,

the Board is no different than other state agencies who likewise

are charged with the protection of the health, safety, and

welfare of the citizens.

10. The Board further relies on the fact that the rule was

never intended to affect title to Petitioners' lands, and all

Petitioners had legal recourse to file a suit to quiet title in

circuit court. As the appellate court noted, however, the effect

of the rule was direct and immediate, and through the issuance of

a disclaimer with the objectionable language, it created a

reversionary interest in the State and made private lands subject

to public use.

11. During the final hearing in the underlying proceedings,

the then Director of State Lands vigorously supported the

proposed rule as being in the best interests of the State and

consistent with the "inalienable" Public Trust. However, he was

unaware of any Florida court decision which supported the Board's

views, and he could cite no specific statutory guidance for the

Board's actions. The Director also acknowledged that the

statutory authority for the rule (Section 253.129, Florida

Statutes) simply directed the Board to issue disclaimers, and it

made no mention of the right of the Board to reclaim submerged

lands through the issuance of a qualified disclaimer. In short,

while the Board could articulate a theory for its rule, it had

very little, if any, basis in Florida statutory or common law or

judicial precedent to support that theory.

12. Although Board counsel has ably argued that the law on

the Butler Act was archaic, confusing, and conflicting in many

respects, the rule challenge case ultimately turned on a single

issue, that is, whether the Riparian Rights Act of 1856 and the

Butler Act of 1921 granted to upland or riparian owners fee

simple title to the adjacent submerged lands which were filled

in, bulkheaded, or permanently improved. In other words, the

ultimate issue was whether the Board's position was "inconsistent

with the . . . the concept of fee simple title." Anderson

Columbia at 1066. On this issue, the court held that the State

could not through rulemaking "seek to reserve ownership interests

by issuing less than an unqualified or unconditional disclaimer

to riparian lands which meet the statutory requirements." Id. at

1067. Thus, with no supporting case law or precedent to support

its view on that point, there was little room for confusion or

doubt on the part of the Board.

E. Special Circumstances

13. In terms of special circumstances that would make an

award of fees unjust, the Board first contends that the proposed

rule was never intended to "harm anyone," and that none of

Petitioners were actually harmed. But the substantial interests

of each Petitioner were clearly affected by the proposed rules,

and the appellate court concluded that the rule would result in

an unconstitutional forfeiture of property.

14. The Board also contends that because it must make

proprietary decisions affecting the public trust, it should be

given wide latitude in rulemaking. It further points out that

the Board must engage in the difficult task of balancing the

interests of the public with private rights, and that when it

infringes on the private rights of others, as it did here, it

should not be penalized for erring on the side of the public. As

previously noted, however, all state agencies have worthy

governmental responsibilities, but this in itself does not

insulate an agency from sanctions.

15. As an additional special circumstance, the Board points

out that many of the provisions within the proposed rule were not

challenged and were therefore valid. In this case, several

subsections were admittedly unchallenged, but the offending

provisions which form the crux of the rule were invalidated.

16. Finally, the Board reasons that any moneys paid in fees

and costs will diminish the amount of money to be spent on public

lands. It is unlikely, however, that any state agency has funds

set aside for the payment of attorney's fees and costs under

Section 120.595(2), Florida Statutes (1999).

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.595(2), Florida Statutes.

18. The Ward group's claim for attorney fees and costs

under Section 57.111, Florida Statutes (1999), is denied since

paragraph (6)(a) of that statute specifically provides that

"[t]his section [57.111] does not apply to any proceeding

involving the establishment of a . . . rule." Therefore, its

claim must proceed under Section 120.595(2), Florida Statutes

(1999).

19. Section 120.595(2), Florida Statutes (1999), governs

this dispute and provides in relevant part as follows:

If the court . . . declares a proposed rule .

. . invalid pursuant to s. 120.56(2), a

judgment or order shall be rendered against

the agency for reasonable costs and

reasonable attorney's fees, unless the agency

demonstrates that its actions were

substantially justified or special

circumstances exist which would make the

award unjust. . . . No award of attorney's

fees as provided in this subsection shall

exceed $15,000.00.

20. The foregoing statute is clear and requires the entry

of an order "against the agency" for reasonable costs and

attorney's fees when a court or administrative law judge declares

a proposed rule invalid. Cf. The Security Mutual Life Ins. Co.

of Lincoln, Neb. v. Dep't of Insur. and State Treas. , 707 So. 2d

929, 930 (Fla. 1st DCA 1998)(award of fees and costs "mandatory"

when agency statement invalidated under section 120.595(4),

F.S.). In order to avoid liability for fees and costs, an agency

must demonstrate that its actions were "substantially justified,"

or that "special circumstances exist which would make the award

unjust." In doing so, the agency must affirmatively raise and

prove the exception. Gentele v. Dep't of Prof. Reg., Bd. of

Optometry , 513 So. 2d 672 (Fla. 1st DCA 1987). In the instant

cases, the Board contends that its actions were substantially

justified, that is, it had a reasonable basis in law and fact for

the rule when it was proposed, and that special circumstances

exist which would make the award unjust. It further disputes

that $15,000.00 per party is reasonable for attorney's fees.

21. In response to the agency's contentions, Petitioners

have uniformly argued that the Board's actions were "contrary to

judicial precedent and constituted an effort to enlarge, modify,

or contravene the law of Florida"; that the Board's position was

found by the court to be "inconsistent with the riparian statutes

and the concept of the fee simple title"; that regardless of the

"lofty motivation of the agency, its end did not justify its

means"; that "an agency should not be allowed to simply claim

that the law was unclear in order to claim immunity from the

statute"; and that each party is entitled to the full amount of

fees requested.

22. Because the term "substantially justified" was

apparently borrowed from the Florida Equal Access to Justice Act

(FEAJA) codified in Section 57.111, Florida Statutes (1999), the

same standards developed in case law under the FEAJA are useful

here. In Helmy v. Dep't of Bus. and Prof. Reg. , 707 So. 2d 366,

370 (Fla. 1st DCA 1998), the court followed the test for

"substantially justified" set forth by the United States Supreme

Court in Pierce v. Underwood under the analogous federal Equal

Access to Justice Act. There, the court found "substantially

justified" to mean:

"justified in substance or in the main" -

that is, justified to a degree that could

satisfy a reasonable person. That is no

differen[t] [than] the "reasonable basis both

in law and fact" formulation adopted by . . .

the vast majority of other Courts of Appeals

that have addressed this issue. . . . To be

"substantially justified" means, of course,

more than merely undeserving of sanctions for

frivolousness; that is assuredly not the

standard for Government litigation of which a

reasonable person would approve.

Helmy , 707 So. 2d at 368, quoting Pierce v. Underwood , 487 U.S.

552, 565 (1988). Thus, under Florida law, "the 'substantially

justified' standard falls somewhere between the no justiciable

issue standard of section 57.105 . . . and an automatic award of

fees to a prevailing party." Helmy at 368. At the same time, an

agency must have a solid, but not necessarily correct, basis in

law and fact for the position that it took when it initiated the

action. Dep't of Health and Rehab. Services v. S.G. , 613 So. 2d

1380, 1386 (Fla. 1st DCA 1993). In order to be substantially

justified, "an agency must, at the very least, have a working

knowledge of the applicable statutes under which it is

proceeding." Helmy at 370. The Helmy analysis was recently

approved by the same court in State of Fla., Dep't of Insur. v.

Fla. Bankers Assn. et al. , 25 Fla. L. Weekly D1219 (Fla. 1st DCA,

May 17, 2000).

24. Although the underlying rule challenge was primarily

based on an issue of law, the determination of whether or not

attorney's fees should be awarded turns on the factual

determination of whether or not the Board was substantially

justified in law or fact or had some special circumstances which

would make the award unjust.

25. Here, the more persuasive evidence shows that there was

no substantial justification for the Board's actions and no

special circumstances present which would make an award of fees

and costs unjust.

26. In reaching this conclusion, the undersigned has

considered the Board's contention that it was substantially

justified because it did not intend the rule to act as a reverter

clause, that there "was no law to the contrary," and that the

existing case law was in "a state of flux." As noted by the

court, however, the rule clearly constituted a reverter; at least

three early Supreme Court decisions held that no right of

reversion existed for grants made under the Riparian Rights Act

of 1856 or the Butler Act of 1921; and the single case under

review at the time the underlying proceedings arose, City of West

Palm Beach v. Bd. of Trustees of the Internal Improvement Trust

Fund , 714 So. 2d 1060 (Fla. 4th DCA 1998), was not controlling as

to all issues of the rulemaking. Moreover, the court noted that

the Board's position in the City of West Palm Beach case was

"inconsistent with its proposed rule." Anderson Columbia at

1066. In short, there was an absence of a solid, though not

necessarily correct, basis in fact and law for the proposed rule.

S.G. at 1306.

27. The undersigned has also rejected a contention that

special circumstances exist which would make an award unjust.

Among other reasons, the Board has argued that it merely erred on

the side of the public in seeking to preserve and protect trust

lands, and that when making difficult proprietary decisions, it

must necessarily be given wide latitude in rulemaking. However,

all state agencies address important issues, and a worthy

governmental responsibility is not inherently relevant to the

issue of whether an agency is substantially justified.

28. In summary, because the Board failed to carry its

burden that it was substantially justified in proposing the

challenged rule, or that special circumstances exist which would

make an award of fees and costs unjust, Petitioners are entitled

to reasonable fees and costs.

29. In light of the foregoing conclusions, it is necessary

to determine the appropriate amount of fees and costs. The

requested costs are not in dispute, and thus the movants are

entitled to the costs agreed upon in the Joint Stipulations of

Fact.

30. On the attorney's fees issue, Respondent has also

agreed that if the Ward group is entitled to a recovery, the

appropriate amount is $9,177.00. Still in dispute is whether a

$15,000.00 fee must be shared by Anderson Columbia and Panhandle

Land in Case Nos. 00-0754F and 00-0755F, and by Support Terminals

and Commodores Point in Case Nos. 00-0756F and 00-0757F, or

whether each of those Petitioners is entitled to that amount.

31. As reflected in the Findings of Fact, the Board does

not dispute the fact that each Petitioner in Case Nos. 00-0754F,

00-0755F, 00-0756F, and 00-0757F incurred reasonable fees in

excess of $15,000.00 in challenging the rule. Moreover, each of

these parties came to the case with a different perspective, that

is, one had a disclaimer with a reversionary interest, one did

not, one was a tenant, and one was a landlord. The parties did

not participate in a shared venture, and except for the fact that

the cases were consolidated for administrative efficiency, their

claims would have been tried separately. Contrary to the Board's

suggestion, it would be unfair to now penalize the four parties

by forcing them to share a fee simply because they happened to

choose the same attorney for representation and their claims were

joined for purposes of hearing. If the Board's theory were

accepted, multiple parties would always oppose consolidation and

seek to have their claims tried separately, or they would be

forced to retain separate counsel in order to be made whole under

the statute. Such a result is illogical, unfair, and contrary to

the very purpose of the statute. Obviously, the process is

better served by fewer attorneys and consolidation of multiple

cases. Therefore, each of the four Petitioners is entitled to

recover $15,000.00 in fees. Cf. Bob Cadenhead and Cadenhead &

Sons Const., Inc. v. S. Fla. Water Mgmt. Dist. , unpublished

Amended Final Order, Sept. 12, 1991, amending Final Order at 13

F.A.L.R. 3452 (Div. Admin. Hrngs., Aug. 30, 1991)(separate fees

in the amount of $15,000.00 awarded in 57.111 case to related

contractor and contracting firm represented by same counsel);

Certified Operators of S.W. Fla., Inc. et al. v. Dep't of Agric.

and Cons. Services , 18 F.A.L.R. 1032, 1040 (Div. Admin. Hrngs.,

Feb. 7, 1996)(where underlying cases consolidated for efficiency,

"$15,000.00 cap under 57.111 applicable to four cases here,

individually, and not collectively"). In reaching this result,

the undersigned has rejected an additional contention by the

Board that smaller fees are warranted because the proposed rule

had only "pesky" consequences for the challengers, and the

underlying cases amounted to no more than "a simple rule

challenge." The numerous papers filed in this action, and the

consequences described by the appellate court, indicate

otherwise.

32. Finally, at hearing, the Board requested that it be

allowed to withdraw its stipulation that the Ward group was a

prevailing party in the appellate case since that group did not

participate in the appeal. It also took the position, for the

first time, that the Ward group could not be a prevailing party

in the rule case because it lost at the administrative level and

was not a party to the appeal. At the request of the Ward group,

a ruling on this matter of first impression was reserved.

33. The disputed stipulation is only relevant to an award

of fees and costs incurred in the appeal, something which the

Ward group does not seek. Therefore, even if the Board's request

to withdraw the stipulation were granted, it would have no

bearing on that group's claim. This is because once a court or

administrative law judge invalidates a proposed rule, as is the

case here, Section 120.595(2), Florida Statutes (1999), provides

a mechanism for reimbursement to a party of reasonable fees and

costs incurred in challenging that rule at the administrative

level. Assuming that multiple challengers receive an adverse

decision at the administrative level, and an appeal is taken,

there is no statutory requirement that every challenger

participate in the appeal in order to validate its claim.

Therefore, the fact that another party in the rule challenge was

successful in having the rule invalidated by an appellate court

does not bar the Ward group's claim for fees and costs incurred

in challenging the rule at the administrative level. This being

so, the Ward group's motion should be granted.

Based on the foregoing findings of fact and conclusions of

law, it is

ORDERED that the Motions for Attorney's Fees are granted,

and Petitioners in Case Nos. 00-0754F, 00-0755F, 00-0756F, and

00-077F are awarded $15,000.00 each in attorney's fees, while

Petitioners in Case No. 00-0828F are awarded $9,117.00 in

attorney's fees. The same parties are awarded $1,933.07,

$1,933.07, $1,143.22, $1,143.22, and $139.77 in costs,

respectively.

DONE AND ORDERED this 18th day of July, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July, 2000.

COPIES FURNISHED:

Timothy P. Atkinson, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

Daniel D. Richardson, Esquire

LeBoeuf, Lamb, Greene & McCrae, L.L.P.

50 North Laura Street, Suite 2800

Jacksonville, Florida 32202-3656

Thomas M. Shuler, Esquire

Post Office Drawer 850

Apalachicola, Florida 32329-0850

Suzanne B. Brantley, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of a

notice of appeal with the agency clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or in the district court of appeal in the appellate

district where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.