03-003561F Charlotte County vs. Imc-Phosphates Company And Department Of Environmental Protection Status: Closed DOAH Final Order on Friday, November 7, 2003.

Summary: The prevailing party asked for sanctions based on exception to the Recommended Order. Jurisdiction is questionable but was ruled on the merits that no sanctions were appropriate under Sections 57.105(5), 120.569(2)(e), or 120.595.(1).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE COUNTY, )

)

Petitioner, )

)

vs. )

) Case No. 03 - 35 61F

IMC - PHOSPHATES COMPANY and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

FINAL ORDER

On September 26, 2003, Charlotte County (County) filed a

Petition for Attorneys' Fees and Costs (Petition) to be assessed

against IMC - Phosphates Company (IMC). On October 8, 2003, IMC

filed a Motion to Dismiss and Response. On Oc tober 22, 2003, the

County filed a Response in Opposition to IMC's Motion to Dismiss.

The County's Petition was filed under Sections

120.569(2)(e), 120.595(1), and 57.105(5), Florida Statutes. 1 It

was directed at IMC's Exception X, which was filed in Di vision of

Administrative Hearings (DOAH) Case No. 02 - 4134. Exception X was

directed to Conclusion of Law 268 in the Recommended Order (RO)

entered in Case No. 02 - 4134, which concluded that the County had

standing, despite the preceding Conclusion of Law 2 67 that the

2002 amendments to Section 403.412(5) eliminated the County's

standing under that statute (a conclusion which DEP reversed in

its Final Order (FO)). The County's Petition asserted that the

filing of Exception X warranted sanctions under Sectio ns

120.569(2)(e), 120.595(1), and 57.105 because, as DEP stated in

its FO:

Conclusion of Law 268 is thus entirely

consistent with . . . IMC's Proposed

Recommended Order submitted to the ALJ. How

could DEP grant this Exception by ruling that

the ALJ erre d in reaching a conclusion on

standing that was stipulated to and requested

by IMC [by proposing in its Proposed

Recommended Order (PRO) a recommendation that

the County had standing]?

Jurisdiction

At the outset, it is noted that DOAH jurisdiction to gr ant

the relief requested under the cited statutes is questionable.

It was held in Sellars v. Broward County School Bd. , DOAH Case

No. 97 - 3540F, 1997 WL 1053430 (DOAH Sept. 25, 1997), that DOAH

had no jurisdiction over a motion for sanctions under Sections

120.595(1) and 120.569(2)(c), now 120.569(2)(e), filed after

entry of the RO, and that the appropriate remedy for the refusal

of the agency with final order authority to remand would be an

appeal to the district court of appeal. In most other reported

ca ses where sanctions were considered under these statutes and

their predecessors, the request for sanctions was made prior to

entry of the RO, and either ruling was made contemporaneously

with the DOAH recommended or final order, or jurisdiction to

consider sanctions was reserved in the DOAH order. In the few

exceptions, consideration of sanctions was based on conduct that

took place before entry of the DOAH order. See Beverly Health

and Rehab. Services - Palm Bay v. Agency for Health Care Admin. ,

DOAH Case No. 02 - 1297F, 2003 WL 1986599 (DOAH Apr. 25,

2003)(jurisdiction over motion for sanctions under Section

120.569(2)(e) filed after final order but based on conduct prior

to entry of the RO); Singer v. DeLong and Dept. of Environmental

Protection , DOAH Case No. 01 - 3327, 2003 WL 1789054 (DOAH Mar. 31,

2003)(motion for sanctions under Section 120.595(1) filed one

week after DOAH order closing filed based on withdrawal of

request for hearing, but based on conduct prior to loss of DOAH

jurisdiction by entry of re commended order and resulting in re -

opening of DOAH case); Hall v. Dept. of Juvenile Justice , DOAH

Case No. Case No. 97 - 0175F, 1997 WL 1052923 (DOAH July 3,

1997)(motion for sanctions filed after final order not considered

under Section 120.59(6), now 120. 595(1), but considered under

Section 120.57(1)(b)5., now 120.569(2)(e), where based on conduct

before entry of recommended order). See also Santa Rosa Medical

Center v. Agency for Health Care Admin. , DOAH Case No. 98 - 4771FC,

1999 WL 1486348 (DOAH July 14, 1999)(sanctions considered under

Mandate from district court of appeal). Assuming jurisdiction,

sanctions would not be warranted on the merits of this case.

Merits

Section 120.569(2)(e) provides in pertinent part:

If a pleading, motion, or other pap er is

signed in violation of these requirements

[that the filer "has read the pleading,

motion, or other paper and that, based upon

reasonable inquiry, it is not interposed for

any improper purposes, such as to harass or

to cause unnecessary delay, or for frivolous

purpose or needless increase in the cost of

litigation"], the presiding officer shall

impose upon the person who signed it, the

represented party, or both, an appropriate

sanction, which may include an order to pay

the other party or parties the amount of

reasonable expenses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorney's fee.

The County has not demonstrated that the Exception X was filed

for any improper purpose, and sanctions are not ap propriate under

this statute.

Section 120.595(1)(b) provides:

The final order in a proceeding pursuant to

s. 120.57(1) shall award reasonable costs and

a reasonable attorney's fee to the prevailing

party only where the nonprevailing adverse

party has b een determined by the

administrative law judge to have participated

in the proceeding for an improper purpose.

Again, the County has not demonstrated that IMC participated in

this proceeding for an improper purpose; and an award of

prevailing - party cost s and fees under this statute is not

appropriate.

Section 57.105(5) provides:

In administrative proceedings under chapter

120, an administrative law judge shall award

a reasonable attorney's fee and damages to be

paid to the prevailing party in equal amounts

by the losing party and a losing party's

attorney or qualified representative in the

same manner and upon the same basis as

provided in subsections (1) - (4).

Those subsections provide:

(1) Upon the court's initiative or motion of

any party, the court shall award a reasonable

attorney's fee to be paid to the prevailing

party in equal amounts by the losing party

and the losing party's attorney on any claim

or defense at any time during a civil

proceeding or action in which the court finds

that the losing party or the losing party's

attorney knew or should have known that a

claim or defense when initially presented to

the court or at any time before trial :

(a) Was not supported by the material

facts necessary to establish the claim or

defense; or

(b) Would not be supported by the

application of then - existing law to those

material facts.

* * *

(2) Paragraph (1)(b) does not apply if the

court determines that the claim or defense

was initially presented to the court as a

good faith argume nt for the extension,

modification, or reversal of existing law or

the establishment of new law, as it applied

to the material facts, with a reasonable

expectation of success.

* * *

(3) At any time in any civil proceeding or

action in which the mo ving party proves by a

preponderance of the evidence that any action

taken by the opposing party, including, but

not limited to, the filing of any pleading or

part thereof, the assertion of or response to

any discovery demand, the assertion of any

claim or defense, or the response to any

request by any other party, was taken

primarily for the purpose of unreasonable

delay , the court shall award damages to the

moving party for its reasonable expenses

incurred in obtaining the order, which may

include attorne y's fees, and other loss

resulting from the improper delay.

(4) A motion by a party seeking sanctions

under this section must be served but may not

be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged p aper, claim, defense,

contention, allegation, or denial is not

withdrawn or appropriately corrected.

(Emphasis added.)

It is concluded that, on the facts of this case, an award of

prevailing - party attorney's fees is not appropriate under Section

57.105( 5), with particular reference to the emphasized language

in Subsections (1) - (4) of the statute. First, regardless of the

excuses offered by the County, it is clear that the mandatory

requirements of Subsection (4) were not met. In addition, when

IMC "ini tially presented" Exception X, DEP had not yet

characterized IMC's PRO as a stipulation to the County's

standing; and it was not unreasonable at the time for IMC not to

know that the "material facts" included such a stipulation and

for IMC to make an argum ent that the County did not have standing

"by the application of then - existing law [including RO Conclusion

of Law 267] to those material facts." Finally, the County did

not demonstrate that IMC's Exception X was filed "primarily for

the purpose of unreas onable delay." For these reasons, it is

concluded that an award of prevailing - party attorney's fees or

damages to the County would not be appropriate under Section

57.105(5).

Based on the foregoing, Charlotte County's Petition for

Attorneys' Fees and Co sts is denied.

DONE AND ORDERED this 7th day of November, 2003, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee 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 7th day of November, 2003.

ENDNOTE

1/ Exce pt for Section 57.105, which refers to the statute as

amended by Section 9, Chapter 2003 - 94, Laws of Florida (2003),

all cited statute sections refer to the 2002 codification of the

Florida Statutes.

COPIES FURNISHED :

Edward P. de la Parte, Jr., E squire

de la Parte & Gilbert, P.A.

101 East Kennedy Boulevard, Suite 3400

P ost Office Box 2350

Tampa, Florida 33601 - 2350

Francine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boul evard

Tallahassee, Florida 32399 - 3000

Roger W. Sims, Esquire

Holland & Knight, LLP

200 South Orange Avenue, Suite 2600

Orlando, Florida 32801 - 3453

Teri L. Donaldson, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE O F 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 ar e commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

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 order to

be reviewed.