02-004118F Greg Steryou And Alice Steryou vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Friday, November 8, 2002.

Summary: Appellants who prevailed on appellate review from an adverse decision of Monroe County Planning Commission were not entitled to attorney`s fees and costs because the appellate review preceded an act initiated by the Commission.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREG STERYOU and ALICE STERYOU, )

)

Appellants, )

)

vs. ) Case No. 02 - 4118F

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee. )

)

FINAL ORDER

App ellants, Greg and Alice Steryou (Steryous), filed a

Motion and Memorandum of Law, requesting an award of attorney's

fees and costs pursuant to Section 57.111, Florida Statutes.

This request arises from a successful appeal brought by the

Steryous, seeking review of Monroe County Planning Commission

(Commission) Resolution No. P 04 - 02, denying their application

for an amendment to a minor conditional use to construct a 3,658

square foot restaurant to replace a restaurant (Knuckleheads)

destroyed in 1998 by H urricane Georges. The Commission filed a

Response opposing the Motion.

BACKGROUND

On September 3, 2002, a Final Order was entered, reversing

the Commission's decision, concluding that there was no competent

substantial evidence to support the Commission's Findings of Fact

related to the Commission's denial of the Steryous' application

requesting an amendment to a minor conditional use. As a result,

the Steryous prevailed on appeal. Greg Steryou and Alice Steryou

v. Monroe County Planning Commission , Case No. 02 - 1578 (DOAH

Final Order Sept. 3, 2002).

The Steryous own Lots 1 and 2 located on 3100 Overseas

Highway, in Saddlebunch Keys, Monroe County, Florida. The

Steryous purchased these lots in 1996. The lots are vacant

because the original restaurant bui lt in 1956 was destroyed by

Hurricane Georges in 1998, and demolished and removed in 2000,

after Monroe County determined that the restaurant could be

rebuilt.

It was not disputed that the Steryous may build a restaurant

on the lots as a minor conditiona l use. However, the size and

nature of the proposed restaurant were at issue in the proceeding

before the Commission and on appeal. The Steryous proposed to

construct a 3,658 square foot, enclosed seating area restaurant

on the two lots.

In order to ac commodate the planned design of the restaurant

on the two lots, the Steryous needed a variance from the required

number of off - street parking spaces (reduced from 55 to 34) and

approval of an amendment to a minor conditional use, which

included a request f or a waiver of the yard setback requirements.

The Steryous filed two separate, but related, applications with

the Monroe County Planning Department.

The Commission approved the application for a parking

variance during the January 2002 meeting. However , the

Commission denied the application for an amendment to a minor

conditional use during the February 2002 meeting, which was the

subject of the underlying appeal in Case No. 02 - 1578.

LEGAL DISCUSSION

"Unless otherwise provided by law, an award of attorn ey's

fees and costs shall be made to a prevailing small business party

in any adjudicatory proceeding or administrative proceeding

pursuant to chapter 120 initiated by a state agency, unless the

actions of the agency were substantially justified or special

circumstances exist which would make award unjust." Section

57.111(4)(a), Florida Statutes.

The Steryous request an award for the attorney's fees and

costs incurred by them largely as a result of the appeal, not

incurred prior to and during the hearing b efore the Commission.

(The Steryous request, in part, reimbursement for the costs for

the court reporter, transcript of the hearings before the

Commission, two videos, and the filing fee for the appeal.)

By contract, the Division of Administrative Hearing s had

jurisdiction over the subject matter of the appeal and of the

parties pursuant to Article XIV, Section 9.5 - 535, Monroe County

Code (M.C.C. or Code). On appeal, the hearing officer, here, an

administrative law judge, "may affirm, reverse or modify th e

order of the planning commission." Article XIV, Section 9.5 -

540(b), M.C.C. The scope of the review under Article XIV,

Section 9.5 - 540(b), M.C.C., is:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the Monroe County land

development regulations or comprehensive plan

in the planning commission's order, whether

stated in the order or necessarily implicit

in the Planning Commission's determination,

but he may not reject or modify any findings

of fact unless he fi rst determines from a

review of the complete record and states with

particularity in his order, that the findings

of fact were not based on competent

substantial evidence or that the proceeding

before the planning commission on which the

findings were base d did not comply with the

essential requirements of law.

"The hearing officer's final order shall be the final

administrative action of Monroe County." Article XIV, Section

9.5 - 540(c), M.C.C. See also Article XII, Section 9.5 - 521(e) and

(f), M.C.C., a nd Article III, Section 9.5 - 68(f), M.C.C.

As a threshold issue, the Steryous contend that "[p]ursuant

to section 57.111(3)(b)3., Fla. Stat., the County was required by

ordinance to advise the Steryous of a clear point of entry after

the Planning Commissi on denied, subsequent to a quasi - judicial

hearing, the conditional use application." (The Commission is

established pursuant to Article II, Section 9.5.22(a), M.C.C.,

and has several "powers and duties" including the power and duty

"[t]o serve as the loca l planning agency (LPA), required by

section 163.3174, Florida Statutes" and "[t]o hear, review and

approve or disapprove applications for minor and major

conditional use permits." Article II, Section 9.5 - 22(a),(b)(1)

and (4), M.C.C. Applications for con ditional uses are considered

pursuant to Article III, Division 3, M.C.C.)

Material here, "[t]he term 'initiated by a state agency'

means that the state agency. . .[w]as required by law or rule to

advise a small business party of a clear point of entry afte r

some recognizable event in the investigatory or other free - form

proceeding of the agency." Section 57.111(3)(b)3., Florida

Statutes. The Steryous do not cite to any law or rule, including

any provision of the Code, which required the Commission or

Monr oe County to provide the Steryous with a "clear point of

entry" after the Commission denied the Steryous' application.

The right to appeal the decision of the Commission is

afforded solely pursuant to the Code. (The Commission's decision

regarding a minor conditional use is final unless appealed.) The

appellate review procedures, including the standard of review,

are set forth in Article XIV, Section 9.5 - 535, et seq ., M.C.C.

The review is based on the record made before the Commission. It

is not a de no vo evidentiary proceeding and is not conducted

pursuant to Chapter 120, Florida Statutes (the Administrative

Procedure Act (APA)).

The decision rendered by the Commission is not "some

recognizable event in the investigatory or other free - form

proceeding of the" Commission, or Monroe County, nor is the

appellate review proceeding conducted by the hearing officer.

Stated otherwise, the proceedings before the Commission and the

hearing officer are not administrative proceedings conducted

pursuant to the APA.

The requirement that a state agency give a person "a clear

point of entry" is cardinal principle of the APA and has been

much discussed in case law. The language, which appears after

"small business party of" in Section 57.111(3)(b)3., is derived

almost v erbatim from Capeletti Brothers, Inc. v. State,

Department of Transportation , 362 So. 2d 346, 348 (Fla. 1st DCA

1978)("In other words, an agency must grant affected parties a

clear point of entry, within a specified time after some

recognizable event in in vestigatory or other free - form

proceedings, to formal or informal proceedings under Section

120.57.")

In using the "clear point of entry" terminology, it appears

the Legislature intended "to provide a link between" the APA and

Section 57.111, Florida Statu tes. 1 This view is buttressed in

part because of the requirement in Section 57.111 that "[t]he

court, or the administrative law judge in the case of a

proceeding under chapter 120 , shall promptly conduct an

evidentiary hearing on the application for an aw ard of attorney's

fees and shall issue a judgment, or a final order in the case of

an administrative law judge." Section 57.111(4)(d), Florida

Statutes. (Emphasis added.) See also Section 57.111(4)(b)1.,

Florida Statutes.

Based upon the foregoing, the appellate review proceeding

conducted by a hearing officer, here an administrative law judge

(by contract), pursuant to the Code is not an administrative

proceeding conducted pursuant to the APA; and as a result, Monroe

County and the Commission were not required under the APA to give

the Steryous "a clear point of entry," as contemplated in Section

57.111(3)(b)3., Florida Statutes, after the Commission denied the

Steryous' application for a minor conditional use. (The

undersigned is mindful that for the purpose of applying Section

57.111, it is not relevant who conducts the proceeding as long as

the proceeding is conducted under the APA. See , e.g. , Hitchcock

& River Enterprise, Inc. v. Department of Labor and Employment

Security , 652 So. 2d 970 (Fla. 1st DCA 1995)(holding that

attorney's fees and costs could be considered pursuant to Section

57.111, Florida Statutes, because the procedural requirements of

Section 120.57(1) applied to a hearing conducted in an

unemployment compensation proceeding regardles s of who conducted

the hearing.)) Thus, the appellate review proceeding was not an

"administrative proceeding pursuant to chapter 120 initiated" by

Monroe County or the Commission. 2

DISPOSITION

Based upon the foregoing, the Steryous' Motion for an award

o f attorney's fees and costs pursuant to Section 57.111, Florida

Statutes, is denied.

DONE AND ORDERED this 8th day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

D ivision 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 8th day of November, 2002.

ENDNOTES

1 / See Steven Wisotsky, Practice and Procedure Under the FEAJA ,

70 Fla. B. J. 24, 30 n.43 (1996)(citing Mary W. Chaisson,

Florida's Equal Access to Justice Act: How the Courts and DOA H

Have Interpreted It , 19 Fla. St. U. L. Rev. 901, 908 (1992)).

See also Seann M. Frazier, Award of Attorneys' Fess in

Administrative Litigation , 69 Fla. B. J. 74 (1995).

2 / Given the nature of the disposition of the Motion, it is

unnecessary to determi ne whether the Commission or Monroe County

are state agencies under Section 57.111, Florida Statutes, when

acting in the capacity described herein. See , e.g. , Booker Creek

Preservation, Inc. v. Pinnellas Planning Council , 433 So. 2d 1306

(Fla. 2d DCA 1983 )(concluding that the Pinellas Planning Council

was not subject to the APA under a prior version of the APA).

Also, it is not necessary to decide if the Commission's decision

was "substantially justified" or supported by "special

circumstances," or whethe r the Steryous are a "small business

party."

COPIES FURNISHED:

Karen K. Cabanas, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

Lee R. Rohe, Esquire

Post Office Box 420259

Summerland Key, Florida 33042

Judith Chambers

Planning Commission Coordinator

Monroe County Planning Department

2798 Overseas Highway, Suite 410

Marathon, Florida 33050 - 2227

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to S ection 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of appeal with the Clerk of the Division of Administrative

Hearings and a copy, acc ompanied by filing fees prescribed by

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

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 ord er to be reviewed.