16-005688F West Flagler Associates, Ltd. vs. Department Of Business And Professional Regulation, Division Of Pari-Mutel Wagering
 Status: Closed
DOAH Final Order on Friday, April 20, 2018.


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Summary: Petitioners were jointly entitled to an award of attorney's fees up to the statutory cap of $50,000, and to cost exclusive of a pre-litigation lower cost regulatory alternative.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DANIA ENTERTAINMENT CENTER,

11LLC,

12Petitioner,

13vs. Case No. 16 - 5682F

19DEPARTMENT OF BUSINESS AND

23PROFESSIONAL REGULATION,

25DIVISION OF PARI - MUTUEL

30WAGERING,

31Respondent.

32/

33DAYTON A BEACH KENNEL CLUB,

38INC.,

39Petitioner,

40vs. Case No. 16 - 5683F

46DEPARTMENT OF BUSINESS AND

50PROFESSIONAL REGULATION,

52DIVISION OF PARI - MUTUEL

57WAGERING,

58Respondent.

59/

60JACKSONVILLE KENNEL CLUB, INC.,

64Petitioner,

65vs. Case No. 16 - 5684F

71DEPARTMEN T OF BUSINESS AND

76PROFESSIONAL REGULATION,

78DIVISION OF PARI - MUTUEL

83WAGERING,

84Respondent.

85/

86MELBOURNE GREYHOUND PARK, LLC,

90Petitioner,

91vs. Case No. 16 - 5685F

97DEPARTMENT OF BUSINESS AND

101PROFESSIONAL REGULATION,

103DIVISION OF PARI - M UTUEL

109WAGERING,

110Respondent.

111/

112BONITA - FORT MYERS CORPORATION,

117Petitioner,

118vs. Case No. 16 - 5686F

124DEPARTMENT OF BUSINESS AND

128PROFESSIONAL REGULATION,

130DIVISION OF PARI - MUTUEL

135WAGERING,

136Respondent.

137/

138INVESTMENT CORPORATION OF PALM

142BEACH,

143Petitioner,

144vs. Case No. 16 - 5687F

150DEPARTMENT OF BUSINESS AND

154PROFESSIONAL REGULATION,

156DIVISION OF PARI - MUTUEL

161WAGERING,

162Respondent.

163/

164WEST FLAGLER ASSOCIATES, LTD.,

168Petitio ner,

170vs. Case No. 16 - 5688F

176DEPARTMENT OF BUSINESS AND

180PROFESSIONAL REGULATION,

182DIVISION OF PARI - MUTUEL

187WAGERING,

188Respondent.

189/

190TAMPA BAY DOWNS, INC.; AND TBDG

196ACQUISITION, LLC , d/b/a TGT

200POKER AND RACEBOOK,

203Petitioners,

204vs. Case No. 16 - 5689F

210DE PARTMENT OF BUSINESS AND

215PROFESSIONAL REGULATION,

217DIVISION OF PARI - MUTUEL

222WAGERING,

223Respondent.

224/

225FINAL ORDER AWARDING ATTORNEYÓS FEES AND COSTS

232This cause is before the undersigned upon the entry of two

243O rders by th e First District Court of Appeal (First DCA)

255granting m otions for attorneyÓs fees and costs and remanding the

266matter to the Division of Administrative Hearings ( DOAH ) to

277assess the amount pursuant to section 120.595(2) .

285Preliminary Statement

287On September 26, 2016, after entry of a Final Order

297determining several proposed rules of the Department of Business

306and Professional Regulation, Division of Pari - mutuel Wagering

315(DBPR or Respondent) , relating to Ðdesignated playerÑ card

323games , Florida Administrative C ode R ules 61D - 11.001(17) and

33461D - 11.002(5), to have been invalid exercises of delegated

344legislative authority , The Lockwood Law Firm filed separate

352Motion s for AttorneyÓs Fees and Costs pursuant to section

362120.595(2) with DOAH on behalf its clients in DOA H Case

373Nos. 15 - 7010RP (Petitioner Dania Entertainment Center, LLC) ;

38215 - 7011RP (Petitioner Daytona Beach Kennel Club, Inc.) ;

39115 - 7012RP (Petitioner Jacksonville Kennel Club, Inc.) ; 15 - 7013RP

402(Petitioner Melbourne Greyhound Park, LLC) ; 15 - 7014RP

410(Peti tioner Bonita - Fort Myers Corporation) ; 15 - 7015RP

420( Petitioner Investment Corporation of Palm Beach) ; and 15 - 7016RP

431(Petitioner West Flagler Associates, Ltd.) (the ÐLockwood

438Petitioners Ñ ) . On the same day, the Foley & Lardner law firm

452filed a Motion for Atto rneyÓs Fees and Costs on behalf of its

465clients in DOAH Case No. 15 - 7022RP (Petitioners Tampa Bay Downs,

477Inc. , and TBDG Acquisition, LLC , d/b/a TGT Poker and

486Racetrack) (the ÐFoley & Lardner PetitionersÑ) . The Lockwood

495Petitioners and the Foley & Lardner Pe titioners shall be

505collectively referred to as ÐPetitioners.Ñ

510On October 7, 2016, the Motions for AttorneyÓs Fees and

520Costs, by then reassigned as DOAH Case Nos. 16 - 5682F, 16 - 5683F,

53416 - 5684F, 16 - 5685F, 16 - 5686F, 16 - 5687F, 16 - 5688F, and 16 - 5689F ,

553were c onsolidated and placed in abeyanc e pending the resolution

564of DBPRÓs appeal of the F inal O rder.

573On November 8, 2017, the c ourt entered its written opinion

584in Department of Business and Professional Regulation, Division

592of Pari - mutuel Wagering v. Dania E ntertainment Center, LLC,

603et al. , 229 So. 2d 1259 (Fla. 1st DCA 2017) , affirming the F inal

617O rder . T he c ourt also entered two separate O rder s granting the

633motion s for attorneyÓs fees and costs filed by the Lockwood

644Petitioners and the Foley & Lardner Pe titioners , and remanded

654the matters to DOAH to assess the amount .

663The final hearing was bifurcated into two phases, with the

673first phase being a hearing to determine how the $50,000 cap on

686attorneysÓ fees established by section 120.595(2) would be

694applied in the consolidated multi - party litigation, and the

704second phase to determine the amount of reasonable costs and

714attorneysÓ fees to be awarded .

720The bifurcated hearing on the effect of the $50,000 cap was

732held on January 16, 2018, as scheduled . Facts w ere stipulated

744by the parties, and the hearing was limited to argument taken to

756supplement previously filed memoranda of law.

762On January 26, 2018, a Partial Final Order (PFO) on Effect

773of Statutory Cap on Fees was entered. Th e PFO provided that,

785under the facts of this case, the $50,000 cap on attorneyÓs fees

798established in section 120.595(2) establishes the maximum amount

806that may be awarded to Petitioners, collectively, in this

815proceeding.

816After entry of the PFO, the parties agreed, subject to the

827r ight to appeal the issue of the statutory cap upon entry of the

841Final Order, that the capped amount of $50,000 was adequately

852supported and should be awarded in compliance with the O rder of

864the First DCA. The parties further agreed that Petitioners

873would file their accounting of costs, w ith Respondent reserving

883the right to contest whether such costs are properly taxable.

893On March 30, 2018, Peti ti oners filed an Aff idavit and

905Accounting of Taxable Costs , and an Affidavit of Joshua M.

915Hawkes R egarding Amoun t of Costs setting forth the costs

926asserted to have been incurred by Petitioners. Petitioners also

935filed a supporting Memorandum of Law. On April 9, 2018,

945Respondent countered with its Memorandum of Law Disputing the

954Taxability of Certain Portions of Pet itionersÓ Claim for

963AttorneyÓs Costs .

966An Order Requiring Status Report was then entered inquiring

975as to whether the parties believed an evidentiary hearing to be

986necessary. On April 18, 2018, the parties filed a Joint Status

997Report in which they stipul ated that: (1) the only remaining

1008issue for disposition by the undersigned is the taxability of

1018the costs associated with the Lower Cost Regulatory Alternative ,

1027which disposition would be appropriately based on the pleadings

1036filed; (2) all costs associate d with the deposition of Mr. Chuck

1048Taylor a re not taxable; and (3) all remaining costs sought by

1060Petitioners are taxable .

1064FINDINGS OF FACT

10671. The Findings of Fact set forth in the Final Order

1078entered in DOAH Case Nos. 15 - 7010 through 15 - 7016 and 15 - 7022

1094are hereby adopted in this Final Order.

11012. The PFO is hereby adopted and incorporated in this

1111Final Order as though set forth in full.

11193. During the course of the rulemaking proceedings

1127regarding Ðdesignated playerÑ card games , Petitioners submi tted

1135a good - faith proposal for a lower cost regulatory alternative

1146(LCRA) indicating that the proposed rules would have a

1155significant monetary impact on Petitioners , which required

1162Respondent to prepare a statement of estimated regulatory costs

1171(SERC) purs uant to sections 120.54(3)(b) and 120.541 , Florida

1180Statutes.

11814. Respondent did not prepare a SERC. That failure was

1191determined to be a material failure to foll o w applicable

1202rulemaking procedures and became a basis for the invalidation of

1212the proposed ru les.

1216CONCLUSIONS OF LAW

12195 . Section 120.595(2) provides:

1224(2) CHALLENGES TO PROPOSED AGENCY RULES

1230PURSUANT TO SECTION 120.56(2). Ï If the

1237appellate court or administrative law judge

1243declares a proposed rule or portion of a

1251proposed rule invalid pursua nt to

1257s. 120.56(2), a judgment or order shall be

1265rendered against the agency for reasonable

1271costs and reasonable attorneyÓs fees . . . .

12806. The Florida Supreme Court has established Statewide

1288Uniform Guidelines for Taxation of Costs in Civil Ac tions (Ðthe

1299GuidelinesÑ). App. II, Fla. R. Civ. P. Although not directly

1309adopted in the Uniform Rules of Procedure that govern

1318administ rative proceedings, they are nonetheless instructive and

1326persuasive in determining an award of costs under chapter 120.

13367. The Guidelines place the burden of proof on the moving

1347party to show that Ðall requested costs were reasonably

1356necessary either to defend or prosecute the case at the

1366time the action precipitating the cost was taken.Ñ Id.

13758. The Guidelines furt her classify litigation costs as

1384those Ð that s hould b e t axed, Ñ those Ðthat may be taxed,Ñ and

1401Ðthose that should not be taxed.Ñ Among the costs that should

1412be taxed, and the category closest to providing support for the

1423LCRA , are Ð[t] he costs of copies of documents filed (in lieu of

1436Ò actually cited Ó ) with the court, which are reasonably necessary

1448to assist the court in reaching a conclusion. Ñ

14579. The LCRA w as prepared in an effort to compel Respondent

1469to prepare a SERC during the rulemaking proceeding. It was not

1480prepared in direct support of the challenge to the proposed rule

1491that ultimately emerged from the rulemaking. A determination

1499that such a cost was Ð reasonably necessary Ñ to prosecute the

1511rule challenge w ould be akin to concluding that the cost s of

1524drafting a contract are subject to an award in an action for its

1537breach. The undersigned is not prepared to extend reasonable

1546costs for a rule challenge proceeding to that degree.

1555See , e.g. , Citizens Prop. Ins. Corp. v. River Oaks Condo. II

1566Ass'n , 19 0 So. 3d 1110 (Fla. 2d DCA 2016) .

157710. Likewise, the authors of the LCRA did not testify at

1588the final hearing, though they did testify at the rulemaking

1598hearing. Their expenditure of time in the development of the

1608LCRA was done for the direct purpose o f influencing the

1619direction of the rulemaking, not for reasons directly related to

1629the rule challenge , and their costs are not taxable . See , e.g. ,

1641McCoy v. City of Alachua , 991 So. 2d 983 (Fla. 1st DCA 2008) .

165511. For the reasons set forth herein, it is concluded that

1666the costs associated with the LCRA are not taxable pursuant to

1677section 120.595(2).

1679CONCLUSION

1680Based on the foregoing Findings of Fact and Conclusions of

1690Law , and on the stipulations of the parties as set forth in the

1703April 18, 2018, Join t Status Report , the undersigned awards the

1714following to Petitioners, to be paid by Respondent :

1723a. $50,000.00 in attorneyÓs fees ;

1729b. $2,588.30 in costs associated with the depositions of

1739Jonathan Zachem, Steven Kogan, Joe Dillmore, Lisa Helms, Deborah

1748Gi ardina, and Jamie Shelton , as set forth in the Affidavit and

1760Accounting of Taxable Costs ; and

1765c. $1,576.87 in costs as set forth in the Affidavit of

1777Joshua M. Hawkes Regarding Amount of Costs .

1785DONE AND ORD ERED this 20th day of April , 201 8 , in

1797Talla hassee, Leon County, Florida.

1802S

1803E. GARY EARLY

1806Administrative Law Judge

1809Division of Administrative Hearings

1813The DeSoto Building

18161230 Apalachee Parkway

1819Tallahassee, Florida 32399 - 3060

1824(850) 488 - 9675

1828Fax Filing (850) 921 - 6847

1834www.doah.state.fl.us

1835Filed wit h the Clerk of the

1842Division of Administrative Hearings

1846this 20th day of April , 201 8 .

1854COPIES FURNISHED :

1857Caitlin R. Mawn, Esquire

1861Department of Business and

1865Professional Regulation

18672601 Blair Stone Road

1871Tallahassee, Florida 32399 - 2202

1876(eServed)

1877Thoma s J. Morton, Esquire

1882The Lockwood Law Firm

1886Suite 810

1888106 East College Avenue

1892Tallahassee, Florida 32301

1895(eServed)

1896John M. Lockwood, Esquire

1900The Lockwood Law Firm

1904Suite 810

1906106 East College Avenue

1910Tallahassee, Florida 32301

1913(eServed)

1914Christopher M. Kise , Esquire

1918Foley & Lardner LLP

1922106 East College Ave, Suite 900

1928Tallahassee, Florida 32301

1931(eServed)

1932Kala Kelly Shankle, Esquire

1936The Lockwood Law Firm

1940Suite 810

1942106 East College Avenue

1946Tallahassee, Florida 32301

1949(eServed)

1950Joshua M. Hawkes, Esquire

1954Foley & Lardner LLP

1958Suite 900

1960106 East College Avenue

1964Tallahassee, Florida 32301

1967(eServed)

1968James A. McKee, Esquire

1972Foley & Lardner LLP

1976Suite 900

1978106 East College Avenue

1982Tallahassee, Florida 32301

1985(eServed)

1986Devon Nunneley, Esquire

1989The Lockwood Law Firm

1993Su ite 810

1996106 East College Avenue

2000Tallahassee, Florida 32301

2003(eServed)

2004Louis Trombetta, Esquire

2007Department of Business and

2011Professional Regulation

2013Capital Commerce Center, Fifth Floor

20182601 Blair Stone Road

2022Tallahassee, Florida 32399 - 2202

2027(eServed)

2028Jame s A. Lewis, Esquire

2033Department of Business and

2037Professional Regulation

20392601 Blair Stone Road

2043Tallahassee, Florida 32399

2046(eServed)

2047Robert Ehrhardt, Director

2050Division of Pari - Mutuel Wagering

2056Department of Business and

2060Professional Regulation

2062Capital C ommerce Center

20662601 Blair Stone Road

2070Tallahassee, Florida 32399

2073(eServed)

2074Jason Maine, General Counsel

2078Department of Business and

2082Professional Regulation

2084Capital Commerce Center

20872601 Blair Stone Road

2091Tallahassee, Florida 32399 - 2202

2096(eServed)

2097Jonath an Zachem, Secretary

2101Department of Business and

2105Professional Regulation

2107Capital Commerce Center

21102601 Blair Stone Road

2114Tallahassee, Florida 32399 - 2202

2119(eServed)

2120NOTICE OF RIGHT TO JUDICIAL REVIEW

2126A party who is adversely affected by this Final Order is

2137entitled to judicial review pursuant to Section 120.68, Florida

2146Statutes. Review proceedings are governed by the Florida Rules

2155of Appellate Procedure. Such proceedings are commenced by

2163filing one copy of a Notice of Administrative Appeal with the

2174agen cy clerk of the Division of Administrative Hearings and a

2185second copy, accompanied by filing fees prescribed by law, with

2195the District Court of Appeal, First District, or with the

2205District Court of Appeal in the appellate district where the

2215party resides. The Notice of Administrative Appeal must be

2224filed within 30 days of rendition of the order to be reviewed.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 05/07/2020
Proceedings: Mandate
PDF:
Date: 05/07/2020
Proceedings: Mandate filed.
PDF:
Date: 04/02/2020
Proceedings: BY ORDER OF THE COURT: Appellee's motion for certification is denied.
PDF:
Date: 02/28/2020
Proceedings: Opinion
PDF:
Date: 02/28/2020
Proceedings: Opinion filed.
PDF:
Date: 05/28/2019
Proceedings: BY ORDER OF THE COURT: This case is provisonally set for oral argument on August 14, 2019, at 11:00 a.m.
PDF:
Date: 02/06/2019
Proceedings: BY ORDER OF THE COURT: This case is provsionally set for oral argument on Tuesday, April 16, 2019 at 11:00 a.m.
PDF:
Date: 12/20/2018
Proceedings: BY ORDER OF THE COURT: The motion to consolidate is granted only to the extent that the appeals 1D18-1967 and 2D18-1968 will travel together for review by the same panel of judges.
PDF:
Date: 07/18/2018
Proceedings: Index, Record, and Certificate of Record sent to the Second District Court of Appeal. (2D18-1967 and 2D18-1968)
PDF:
Date: 06/20/2018
Proceedings: Invoice for the record on appeal mailed.
PDF:
Date: 06/20/2018
Proceedings: Index (of the Record) sent to the parties of record.
PDF:
Date: 05/21/2018
Proceedings: Acknowledgment of New Case, Second DCA Case No. 2D18-1968 filed.
PDF:
Date: 05/21/2018
Proceedings: BY ORDER OF THE COURT: This appeal has been filed without a filing fee.
PDF:
Date: 05/21/2018
Proceedings: BY ORDER OF THE COURT: The notice of appeal that initiated this proceeding does not provide mailing addresses for those served with the notice.
PDF:
Date: 05/18/2018
Proceedings: Notice of Administrative Appeal filed and Certified copy sent to the Second District Court of Appeal this date. (Dania Entertainment)
PDF:
Date: 05/18/2018
Proceedings: Notice of Appeal filed and Certified copy sent to the Second District Court of Appeal this date. (Tampa Bay Downs, Inc.)
PDF:
Date: 05/18/2018
Proceedings: Notice of an Administrative Appeal filed and Certified copy sent to the Second District Court of Appeal this date. (Dania Entertainment Center)
PDF:
Date: 05/18/2018
Proceedings: Notice of Appeal filed.
PDF:
Date: 05/18/2018
Proceedings: Notice of Administrative Appeal filed.
PDF:
Date: 04/20/2018
Proceedings: DOAH Final Order
PDF:
Date: 04/20/2018
Proceedings: Final Order Awarding Attorney's Fees and Costs. CASE CLOSED.
PDF:
Date: 04/18/2018
Proceedings: Joint Status Report filed.
PDF:
Date: 04/11/2018
Proceedings: Order Requiring Status Report.
PDF:
Date: 04/09/2018
Proceedings: Respondent's Memorandum of Law Disputing the Taxability of Certain Portions of Petitioners' Claim for Attorney's Costs filed.
PDF:
Date: 03/30/2018
Proceedings: Affidavit and Accounting of Taxable Costs filed.
PDF:
Date: 03/30/2018
Proceedings: Memorandum of Law filed.
PDF:
Date: 03/30/2018
Proceedings: Affidavit of Joshua M. Hawkes regarding Amount of Costs filed.
PDF:
Date: 03/21/2018
Proceedings: Order Continuing Final Hearing (parties to advise status by March 30, 2018).
Date: 03/20/2018
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 02/20/2018
Proceedings: Notice of Court Reporter filed.
PDF:
Date: 02/15/2018
Proceedings: Order Denying Stay and Notice of Hearing (hearing set for March 22, 2018; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 02/14/2018
Proceedings: Status Report filed.
PDF:
Date: 02/07/2018
Proceedings: Order Requiring Status Report (parties to advise status by February 14, 2018).
PDF:
Date: 01/26/2018
Proceedings: Partial DOAH FO
PDF:
Date: 01/26/2018
Proceedings: Partial Final Order on Effect of Statutory Cap on Fees (hearing held January 16, 2018). DOAH JURISDICTION RETAINED.
PDF:
Date: 01/23/2018
Proceedings: Respondent's Notice of Filing Supplemental Authority filed.
PDF:
Date: 01/19/2018
Proceedings: Petitioners' Tampa Bay Downs and TGT Poker and Racebook's Supplemental Brief on the Attorney's Fees Statutory Cap filed.
PDF:
Date: 01/19/2018
Proceedings: Respondent's Supplemental Memorandum of Law in Support of an Aggregate Method for Awarding Attorney's Fees in Accordance with Section 120.595(2), Florida Statutes filed.
PDF:
Date: 01/19/2018
Proceedings: Supplemental Memorandum of Law regarding Section 120.595(2)'s Cap on Attorney's Fees filed.
Date: 01/16/2018
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
PDF:
Date: 01/11/2018
Proceedings: Respondent's Memorandum of Law in Support of an Aggregate Method for Awarding Attorney's Fees in Accordance with Section 120.595(2), Florida Statutes filed.
PDF:
Date: 01/11/2018
Proceedings: Petitioners' Tampa Bay Downs and TGT Poker and Racebook's Brief on the Application of the Attorney's Fees Statutory Cap filed.
PDF:
Date: 01/11/2018
Proceedings: Memorandum of Law regarding Section 120.595(2)'s Cap on Attorney's Fees filed.
PDF:
Date: 12/12/2017
Proceedings: Respondent's Notice of Service of it's First Request for Production and First Set of Interrogatories filed.
PDF:
Date: 12/12/2017
Proceedings: Notice of Substitution of Counsel (James Lewis) filed.
PDF:
Date: 12/11/2017
Proceedings: Notice of Court Reporter filed.
PDF:
Date: 12/04/2017
Proceedings: Notice of Hearing (hearing set for January 16, 2018; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 11/30/2017
Proceedings: Joint Status Report filed.
PDF:
Date: 11/28/2017
Proceedings: Notice of Appearance (Louis Trombetta) filed.
PDF:
Date: 11/16/2017
Proceedings: Notice of Appearance (Devon Nunneley) filed.
PDF:
Date: 11/16/2017
Proceedings: Order Requiring Status Report.
PDF:
Date: 10/07/2016
Proceedings: Order Placing Case in Abeyance and Requiring Status Report (parties to advise status by January 6, 2017).
PDF:
Date: 10/07/2016
Proceedings: Order of Consolidation (DOAH Case Nos. 16-5682F, 16-5683F, 16-5684F, 16-5685F, 16-5686F, 16-5687F, 16-5688F, 16-5689F).
PDF:
Date: 09/29/2016
Proceedings: Notice sent out that this case is now before the Division of Administrative Hearings.
PDF:
Date: 09/26/2016
Proceedings: West Flagler Associates, Ltd.'s Motion for Attorney's Fees and Costs filed. (FORMERLY DOAH CASE NO. 15-7016RP)

Case Information

Judge:
E. GARY EARLY
Date Filed:
09/29/2016
Date Assignment:
09/29/2016
Last Docket Entry:
05/07/2020
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
Suffix:
F
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (7):

Related Florida Rule(s) (1):