01-003327 Michael M. Singer vs. Timothy And Hope Delong And Department Of Environmental Protection Status: Closed Recommended Order on Monday, March 31, 2003.

Summary: Respondents are not entitled to an award of attorneys` fees and costs, because Petitioner is not "nonprevailing adverse party."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL M. SINGER, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3327

)

TIMOTHY AND HOPE DELONG AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

October 21, 2002, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Mic hael M. Singer, pro se

695 Lakeside Harbor

Boynton Beach, Florida 33435

For Respondents: Kirk Friedland, Esquire

(The DeLongs) Flagler Drive, Suite 505

West P alm Beach, Florida 33401

For Respondent: Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahasse e, Florida 32399 - 3000

STATEMENT OF THE ISSUE

This issue in this case is whether the private Respondents

are entitled to recover attorneys’ fees and costs from

Petitioner pursuant to Section 120.595(1), Florida Statutes.

PRELIMINARY STATEMENT

Presently a t issue is a Motion for Attorneys’ Fees and

Costs (“Motion”) brought by Respondents Timothy and Hope Delong

(the “Owners”) pursuant to Section 120.595(1), Florida Statutes.

The Owners contend that Petitioner Michael M. Singer (“Singer”)

participated in th is proceeding for an improper purpose. Singer

denies the charge.

This litigation stemmed from three applications for permits

or approvals that the Owners submitted to Respondent Department

of Environmental Protection (the “Department”). One of these

appl ications sought the Department’s authorization to install a

vinyl seawall. The Department’s file relating to the Owners’

seawall project is numbered 50 - 0153725 - 001 and will be referred

to herein as “File 1.” The Owners’ other two applications

requested a pprovals to build a dock. The first application

concerning the Owners’ dock caused the Department to open its

File No. 50 - 0153725 - 002 (“File 2”). The Department opened a

separate file on the Owners’ dock, numbered 50 - 0153725 - 003

(“File 3”), after the Own ers submitted a new application

relating to that particular project under circumstances that

will be described in the Findings of Fact below. In due course,

the Department authorized the Owners’ seawall and dock projects.

Singer, who is a neighbor of the Owners, objected to the

Department’s approvals. Proceeding without benefit of legal

counsel, he wrote letters to the Department dated May 31, 2001;

July 5, 2001; and August 30, 2001, setting forth his concerns.

Throughout these proceedings, Singer’s let ters, collectively,

have been treated as his “Petition.” In his Petition, Singer

purported to challenge the Department’s decisions in File 1,

File 2, and File 3.

In August 2001, the Department referred Singer’s challenge

to the Division of Administrati ve Hearings (“DOAH”), where it

was assigned to Administrative Law Judge Stampelos and set for

hearing. The final hearing commenced as scheduled on

November 28, 2001, but was not completed on that day. The

proceeding resumed on April 17, 2002. On the se cond day of the

final hearing, Singer moved to disqualify Judge Stampelos.

Singer’s motion was granted, and as a result the case was

transferred to the undersigned on or about April 18, 2002.

On May 17, 2002, the Department filed both a Motion to

Dismiss and a Motion to Relinquish Jurisdiction. In ruling on

these motions, the undersigned determined that there existed no

genuine disputes of material fact with regard to File 1 and File

3, but that certain aspects of Singer’s challenge concerning

File 2 cou ld proceed. Accordingly, jurisdiction over File 3 was

relinquished to the Department, and Singer’s Petition was

dismissed, with leave to amend, to the extent it attempted to

challenge the preliminary agency action on the Owners’ seawall.

Singer elected n ot to amend his Petition.

On August 7, 2002 —— the day before the final hearing was

scheduled to reconvene before the undersigned —— Singer filed a

Request to Withdraw Petition for Administrative Hearing. The

undersigned effectively granted Singer’s request by entering an

Order Closing File on August 8, 2002. One week later, on

August 15, 2002, the Owners filed the instant Motion directly

with DOAH. The clerk’s office erroneously treated the Motion as

an application under Section 57.111, Florida Statutes, and

docketed the matter as a new DOAH Case, numbered 02 - 3284F (the

“Fees Case”).

On August 23, 2002, the Department moved the undersigned to

close DOAH’s file in the Fees Case because the Owners were not

seeking an award under Section 57.111. The Departm ent also

suggested that, rather than initiating a new matter, it would be

more appropriate for DOAH to reopen Case No. 01 - 3327 (that is,

the instant case) for the purpose of conducting a hearing, and

entering a recommended order, on the Motion. The Owners

immediately joined the Department’s motion to close the Fees

Case and requested that Case No. 01 - 3327 be reopened.

On August 26, 2002, the undersigned closed the Fees Case

and entered an Order Reopening Proceedings in Case No. 01 - 3327.

Shortly thereafte r, a Notice of Hearing was issued, scheduling a

final hearing on the Owners’ Motion for October 21, 2002.

The final hearing on the Owners’ Motion commenced according

to schedule. Singer participated in part of the hearing via

telephone, but he refused to stay on the line for the entire

proceeding. The Owners called three witnesses: Jeffrey Berin,

Esquire; Hope DeLong; and Kirk Friedland, Esquire. In addition,

the Owners moved into evidence the evidence of record from the

underlying case, consisting of t hree volumes of final hearing

transcript taken on November 28, 2001; one volume of transcript

taken on April 17, 2002; Owners’ Exhibits numbered 1 - 7, 9, and

10; and Singer’s Composite Exhibit 1. Finally, the Owners

offered one additional composite exhibit , numbered 18, which was

received in evidence. Neither the Department nor Singer

presented a case.

The final hearing transcript, comprising two volumes, was

filed on December 16, 2002 (Volume I) and January 16, 2003

(Volume II). The Owners and Singer ea ch filed a proposed

recommended order. The Department did not file any post - hearing

papers.

FINDINGS OF FACT

Because the undersigned is not required or authorized to

recommend a disposition on the merits of Singer’s Petition, the

fact - findings that follo w are limited to those necessary to

determine the narrow issue whether an award of attorneys’ fees

and costs is proper under Section 120.595(1), Florida Statutes.

In addition, as written, the findings below assume the reader’s

familiarity with the precedi ng Preliminary Statement.

1. On July 22, 1999, the Owners submitted an application

to the Department seeking approval to build a dock. In a letter

dated January 21, 2000, which is included in File 2, the

Department informed the Owners that it had review ed their

application “to determine whether [the proposed dock] qualifies

for any of three kinds of authorization that may be necessary

for works in wetlands or waters of the United States.” This

January 21, 2000, letter constituted the first agency action

(“First Action” or “FA”) concerning the Owners’ dock.

2. The First Action comprised three distinct

determinations (for short, “D1,” “D2,” and “D3”), one for each

of the “three kinds of [potentially necessary]

authorization[s].” These determinations wer e:

FA - D1 : The dock is exempt from the need to obtain an

Environmental Resource Permit (“ERP”).

FA - D2 : The dock qualifies for consent to use state

sovereign submerged lands.

FA - D3 : Pursuant to a “federal review” performed under an

agreement between the Department and the U.S. Army Corps of

Engineers, the dock is deemed consistent with the State

Programmatic General Permit (“SPGP”) program.

As originally designed, and as approved by the Department on

January 21, 2000, the Owners’ dock will be referred to herein as

the “Approved Dock.”

3. After receiving notice of the First Action, the Owners

caused a “Notice of Determination of Exemption” to be published

in the February 1, 2000, issue of the Palm Beach Daily Business

Review . In pertinent part, this p ublic notice stated:

The Department of Environmental

Protection gives notice that the [Owners’]

project to construct a 125 - foot by 4 - foot

access dock and a 40 - foot by 8 - foot terminal

platform has been determined to be exempt

from the requirements to obtain an

environmental resource permit. . . . .

A person whose substantial interests

are affected by the Department’s action may

petition for an administrative proceeding

(hearing) under sections 120.569 and 120.57

of the Florida Statutes. . . . .

* * *

Complete copies of all documents

relating to this determination of exemption

are available for public inspection during

normal business hours . . . at the

[Department’s regional office].

(Owners’ Exhibit No. 4).

4. Following the publication of this notice, an individual

named Karrie Webb timely filed a petition with the agency

challenging the Department’s approval of the Approved Dock. Her

Petition for Formal Administrative Hearing was filed with DOAH

on February 17, 2000, initiating Webb. v. Timot hy and Hope

Delong and the Florida Department of Environmental Protection ,

DOAH Case No. 00 - 0761 (the “ Webb case”). The Webb case

proceeded through final hearing, but before a Recommended Order

was issued, the petitioner, on January 9, 2001, filed a

Stipu lation for Dismissal. Consequently, on January 12, 2001,

the Administrative Law Judge entered an order closing the file. 1

5. Not long after the conclusion of the Webb case, the

Owners submitted a second application to the Department for

authorization to build a dock. As described in this second

application (which gave rise to File 3), the newly proposed dock

(hereafter, the “Redesigned Dock”) differed somewhat from the

Approved Dock. Most noticeably, the terminal platform of the

Redesigned Dock faced n orth, towards Singer’s property, whereas

the terminal platform of the Approved Dock had faced south.

6. Singer and the Owners disagreed sharply as to whether

the differences between the Approved Dock and the Redesigned

Dock should be considered “substan tial” (as Singer claims) or

merely “minor” (as the Owners claim). For present purposes,

however, it is neither necessary, nor would it be appropriate,

to resolve that particular dispute.

7. What is significant and should be emphasized, however,

is that whether or not the Redesigned Dock differed

substantially from the Approved Dock, the Owners submitted a new

application respecting the Redesigned Dock as if it were a new

project, and the Department acted upon the Owners’ second

application as if the fir st one had neither been made nor

approved. Thus, in a letter dated February 28, 2001, which is

included in File 3, the Department informed the Owners that it

had reviewed their application “to determine whether [the

Redesigned Dock] qualifies for any of t hree kinds of

authorization that may be necessary for works in wetlands or

waters of the United States.” This February 28, 2001, letter

constituted the second agency action (“Second Action” or “SA”)

concerning the Owners’ dock (though it was, of course, t he first

agency action on the Redesigned Dock).

8. Like the First Action of the previous year, the Second

Action was composed of three distinct determinations (again,

“D1,” “D2,” and “D3” for short), one for each of the “three

kinds of [potentially nece ssary] authorization[s].” These

determinations were:

SA - D1 : The re - designed dock is exempt from the need to

obtain an ERP.

SA - D2 : The re - designed dock qualifies for consent to use

state sovereign submerged lands.

SA - D3 : Pursuant to a “federal review” performed under an

agreement between the Department and the U.S. Army Corps of

Engineers, the re - designed dock is deemed not consistent

with the SPGP program. 2

The Owners did not cause notice of the Department’s Second

Action to be published in a newspap er of general circulation.

9. Armed with the Second Action, the Owners proceeded to

have the Redesigned Dock constructed, and it now exists in fact.

The existing structure will be referred to herein as the “As -

Built Dock,” which, to be clear, was constr ucted according to

the blueprint of the Redesigned Dock.

10. After the construction began, Singer initiated this

administrative litigation, the procedural history of which is

summarized in the Preliminary Statement. In the course of the

litigation, on May 17, 2002, the Department filed both a Motion

to Dismiss and a Motion to Relinquish Jurisdiction. As the

basis for its request that the undersigned relinquish

jurisdiction over File 3 —— that is, the Department’s file

supporting the Second Action, which had approved the Redesigned

Dock —— the Department relied upon a letter dated May 16, 2002,

from the Owners’ counsel to the Department’s counsel, which

contained the following pertinent text:

Please accept this notice as the withdrawal

of the application fi led by Timothy and Hope

Delong in the above matter [namely, File 3].

The Department (with the Owners’ concurrence) contended that

because the Owners had voluntarily withdrawn their application,

the agency had lost jurisdiction to enter a final order

imple menting, modifying, or rescinding the Second Action, which

had preliminarily approved that application. See , e.g. , City of

North Port, Florida v. Consolidated Minerals, Inc. , 645 So. 2d

485, 486 - 87 (Fla. 2d DCA 1994).

11. The undersigned agreed that, b y withdrawing their

application for approval of the Redesigned Dock, the Owners had

divested the Department of jurisdiction in the matter.

Accordingly, the undersigned relinquished jurisdiction over

File 3.

12. In withdrawing their second application , the Owners

materially changed their position and substantially modified the

outcome of the most relevant preliminary agency action at issue,

namely, the Second Action approving the Redesigned Dock.

Indeed, by nullifying the Second Action, the Owners for feited

the only express authorization, albeit a preliminary one, that

they had ever obtained from the Department for the Redesigned

Dock. Thus, in other words, rather than defend the Department’s

preliminary approval of the Redesigned Dock in this proceed ing,

the Owners elected to rely upon the First Action as a defense

against any future claim that the As - Built Dock is an illegal,

unpermitted project. 3

13. The Owners’ withdrawal of their second application was

intended to resolve, and in fact did resolv e, matters raised in

Singer’s Petition. The undersigned specifically finds, as a

matter of ultimate fact, that the Owners’ change of position was

substantial for purposes of Section 120.595(1)(e)3., Florida

Statutes.

CONCLUSIONS OF LAW

14. The Division o f Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, 120.57(1), and 120.595(1), Florida Statutes.

15. An award of attorneys’ fees and costs under Section

120.595(1), Florida Statutes, can be made in favor of “the

prevailing party only where the nonprevailing adverse party has

been determined by the administrative law judge to have

participated in the proceeding for an improper purpose.”

Section 120.595(1)(b), Florida Statutes (emphasis add ed).

16. The term “nonprevailing adverse party” is not

synonymous with “losing party.” Rather, Section 120.595(e)3.,

Florida Statutes, defines the term to mean:

a party that has failed to have

substantially changed the outcome of the

proposed or final agency action which is the

subject of a proceeding. In the event that

a proceeding results in any substantial

modification or condition intended to

resolve the matters raised in a party's

petition, it shall be determined that the

party having raised the i ssue addressed is

not a nonprevailing adverse party. The

recommended order shall state whether the

change is substantial for purposes of this

subsection. In no event shall the term

“nonprevailing party” or “prevailing party”

be deemed to include any part y that has

intervened in a previously existing

proceeding to support the position of an

agency.

(Emphasis added).

17. Singer is not a “nonprevailing adverse party” because,

in fact, this proceeding resulted in a substantial modification

of the Owners’ position —— their nullification of the Second

Action preliminarily approving the Redesigned Dock —— which was

intended to and did resolve matters raised in Singer’s Petition.

18. Because Singer is not a “nonprevailing adverse party”

as a matter of fact, he cannot be assessed attorneys’ fees and

costs under Section 120.595(1), Florida Statutes, as a matter of

law, regardless of the purposes for which he participated in

this proceeding.

19. Accordingly, it is RECOMMENDED that the Department

enter a Final Or der denying the Owners’ Motion for Attorneys’

Fees and Costs.

DONE AND ENTERED this 31st day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrativ e 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 31st day of March, 2003.

ENDNOTES

1 / The undersigned does not know whether the Department

thereafter issued a Final Order dispos ing of the Webb case; such

an order was not introduced into the record of the instant

proceeding.

2 / The record does not disclose the reasons why the Redesigned

Dock, in contrast to the Approved Dock, was deemed not

consistent with the SPGP program.

3 / The undersigned is not suggesting that such a claim

necessarily would have merit. Suffice it to say, however, it is

not self - evident that the First Action approves the As - Built

Dock, which —— no one disputes —— is different from the Approved

Dock. Whether t he differences are minor or substantial, which

question goes to the heart of whether the As - Built Dock is

properly permitted, is an issue that must be resolved, if ever,

in another proceeding.

COPIES FURNISHED :

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

Kirk Friedland, Esquire

Flagler Drive, Suite 505

West Palm Beach, Florida 33401

Michael M. Singer

695 Lakeside Harbor

Boynton Beach, Florida 33435

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

Office of General Counsel

3900 Commonwealth Boulevard

The Douglas Building, Mai l Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

David B. Struhs, Secretary

Departme nt of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.