09-004814 Dr. Richard Friday vs. Stephen A. Walker, Trustee And Department Of Environmental Protection Status: Closed DOAH Final Order on Friday, November 12, 2010.

Summary: Challenger to CCCl permit signed a prehearing stipulation for an improper purpose; sanctions in amount of $2,000.00 awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. RICHARD FRIDAY, )

)

Petitioner , )

)

vs. ) Case No. 09 - 4814

)

STEVEN A. WALKER, TRUSTEE, )

AND DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent s . )

______________________________ _ )

FINAL ORDER

Pursuant to no tice, this matter was conducted by video

teleconferencing before the Division of Administrative Hearings

by its assigned Administrative Law Judge, D . R. Alexander, on

October 15, 2010, in Sarasota and Tallahassee , Florida.

APPEARANCES

For Petitioner: Harry W. Haskins , Esquire

Harry W. Haskins, P.A.

3400 South Tamiami Trail, Suite 201

Sarasota , Florida 34239 - 6093

For Respondent: Charles F. Johnson, Esquire

(Walker) Blalock, Walters, Held & Johnson, P.A.

802 11th Street , West

Bradenton, Florida 3420 5 - 7734

STATEMENT OF THE ISSUE

The issue is whether Steven A. Walker's Motion for

Sanctions (Motion) under Section 120.56 9(2 ) (e), Florida Statutes

(2009), 1 should be granted, and if so, to determine the

appropriate sanction. The "paper" that is the subject of the

Motion is the parties' Joint Pre - Hearing Stipulation

(Stipulation) filed on March 9, 2010.

PRELIMINARY STATEMEN T

On J une 26, 2009, Respondent, Department of Environmental

Protection (Department), issued proposed agency action approving

an application by Steven A. Walker for a permit to construct a

three - story, single - family dwelling with a landward attached

guest h ouse seaward of the coastal construction control line at

100 Park Avenue, Anna Maria, Florida. By letter (Petition)

dated July 22, 2009, Petitioner, who owns adjacent property,

requested a formal administrative hearing to contest the

proposed agency actio n on the grounds the applicant failed to

provide reasonable assurance that all environmental permitting

requirements had been satisfied and that the proposed project

was in violation of the City of Anna Maria (City) Comprehensive

Plan (Plan) and zoning ord inances. The matter was referred by

the Department to the Division of Administrative Hearings on

September 4, 2009, with a request that an administrative law

judge conduct a formal hearing.

A final hearing on the merits of the application was

conducted on March 16 , 2010 . On April 30, 2010, Mr. Walker

filed his Motion pursuant to Sections 120.569(2)(e) and

120.595 (1) , Florida Statutes. A Response in opposition to the

Motion was filed by Dr. Friday on May 10, 2010. On May 24,

2010, a Recommended Order in favor of Mr. Walker was issued .

J urisdiction was also retained for the purpose of resolving the

Motion by separate final order . On July 1 , 2010, the Department

entered a F inal O rder approving that recommendation and issuing

a permit . See Dr. Richard Fri day v. Stephen A. Walker, et al. ,

Case No. 09 - 4814, 2010 Fla. ENV LEXIS 83 (DOAH May 24, 2010 ; DEP

July 1, 2010). No appeal of the Final Order was taken. By

Notice of Hearing dated August 27, 2010, a hearing on the Motion

was scheduled by video teleconfe rencing, with the parties

located in Sarasota and Tallahassee, Florida. On September 17,

2010, t wo additional Affi davits in support of the Motion were

filed by Mr. Walker . By Order dated September 20, 2010, the

hearing was limited to Mr. Walker's request for sanctions under

Section 120.569(2)(e), Florida Statutes. A Memorandum of Law in

Support of the Motion, with attachments, was filed by Mr. Walker

on October 14, 2010, while an Affidavit and Memorandum of Law in

Opposition to the Motion was filed by Dr . Friday on October 15,

2010.

At the hearing, the movant (Mr. Walker) presented the

testimony of Brynna J. Ross, Esquire, counsel for the Department

in the underlying proceeding . Counsel for b oth parties

presented argument in support of their respective positions. In

resolving the merits of the Motion, t he undersigned has

considered the entire record in the underlying proceeding, as

well as the papers filed by both parties with respect to the

Motion.

There is no transcript of the hearing. Proposed Fi ndings

of Fact and Conclusions of Law were filed by the parties on

November 1, 2010, and they have been considered in the

preparation of this Final Order. In addition, although a

transcript was not ordered in the underlying proceeding, the

movant has atta ched to his filing a copy of the Transcript of

the final hearing held on March 16, 2010.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. After Dr. Friday received notice of the Department's

intent to issue a permit to Mr. Walker, he filed his Petition

with the Department on July 22, 2009. The Petition (drafted by

different counsel) contested the proposed agency action on two

broad grounds: that the applicant had failed to meet all

environmental perm itting criteria in F lorida Administrative Code

Chapter 62 - 33, and that the proposed project would violate both

the City 's Plan and Zoning District Regulations. The

environmental issues raised were extensive , and pages 3 and 4 of

the letter stated that the following "environmental" facts were

in dispute:

The applicant was required to demonstrate that the

construction would not r esult in removal or

destruction of native vegetation which would either

destabilize a frontal, primary, or significant dune or

ca use a significant adverse impact to the beach and

dune system due to increased erosion by wind or water.

The applicant was also required to demonstrate that

the construction would not result in removal or

disturbance of in situ sandy soils of the beach an d

dune system to such a degree that a significant

adverse impact to the beach and dune system would

result from either reducing the existing ability of

the system to resist erosion during a storm or

lowering existing levels of storm protection to upland

pr operties and structures. Additionally, the

applicant had to show the construction would not

direct discharges of water or other fluids in a

seaward direction and in a manner that would result in

significant adverse impacts, would not cause an

increase in structure - induced scour of such magnitude

during a storm that structure - induced scour would

result in a significant adverse impact, would not

interfere with public beach access, and would not

cause a significant adverse impact to marine turtles,

or the coa stal system.

2. In answers to requests for admissions dated November 5,

2009, Dr. Friday affirmatively denied that no environmental

issues were in dispute. At h is deposition taken on January 27,

2010, Dr. Friday continued to maintain that he had environ mental

concerns with the project .

3. On March 4, 2010, or less than two weeks before the

final hearing, the Department , supported by Mr. Walker, filed a

Motion in Limine and Alternative Motion for Notice to Interested

Party. The first Motion sought to exclude evidence regarding

land use issues as being irrelevant . Alternatively, the second

Motion requested that if these issues were not excluded, the

City be given notice of the proceeding .

4. The parties were required to file a joint prehearing

sti pulation by March 9, 2010. On March 9, 2010, or before a

ruling on the Department's Motion in Limine was entered, the

parties executed a Stipulation which , among other things,

identified the issues still in dispute. This "paper" is the

subject of Mr. Wal ker's Motion. On page 2 of the Stipulation,

Dr. Friday indicated that his position in the case was as

follows: " [P] lease see the Petition for Administrative Hearing

filed on July 22, 2009." Also, he identified more than ten

potential witnesses that migh t be called to testify at hearing ,

including a Department Permit Manager. Except for the

D epartment witness, all other potential witnesses appeared to

relate to the land use issues. As of that date, then, it was

reasonable for the applicant 's counsel to assume that both

environmental and land use issues were still in play.

5. Counsel for the Department testified that wh en the

parties collaborated on the preparation of the Stipulation, she

and Mr. Johnson ( applicant's counsel) inquired of Dr. Friday 's

cou nsel (Mr. Haskins) whether the environmental issues would be

litigated at hearing. Dr. Friday's counsel declined to narrow

the issues , and they remained in the Stipulation .

6 . In response to the Department's Motion in Limine, on

Thursday, March 11, 2010 , Dr. Friday 's coun s el filed a Motion to

Stay Administrative Proceeding, and in the Alternative, Request

to Join Indispensible Party. In that filing, he indicated that

an action in circuit court had just been filed against the City

seeking declaratory and injunctive relief on the premise that

the proposed activity was not allowed under the City's Plan and

Zoning Districts . That action is still pending. See Friday v.

City of Anna Maria , Case No. 2010 - CA2369 (12th Cir., Manatee Cty

Fla.) In addition, he r equested that the administrative

proceeding be stayed pending the outcome of that litigation, or

in the alternative, that the City be joined as an indispensible

party. A Response in opposition to those filings was made by

Mr. Walker o n March 12, 2010 .

7 . On Friday, March 12, 2010 , the undersigned entered an

Order granting the Department's Motion in Limine and excluding

all evidence relating to the land use issues . The Order also

indicated that notice to the City was unnecessary. An oral

ruling denying t he Motion to Stay Administrative Proceeding was

given to the parties the same day. An Order confirming th at

ruling was issued on Monday, March 15, 2010.

8 . After the Order granting the Motion in Limine was

issued, the following day, Saturday, March 13, c ounsel for the

two parties spoke with each other by telephone. This was in

response to an email sent by Mr. Johnson to Mr. Haskins that

morning, which read as follows:

If you have a chance, please call my cell phone 720 -

xxxx. My clients are planning to g et on a plane early

Monday in Oregon to be here for the hearing [on March

16] . Absent some written communication from you that

you will not be proceeding on the petition, I have

told my clients to get on the plane and be here.

9 . A lthough neither counse l testified at final hearing,

both submitted affidavits reflecting their versions of the

telephone conversation. According to Mr. Haskins ' affidavit , he

told Mr. Johnson "that [he] did not plan on putting on any

witnesses in light of the Administrative La w Judge's ruling, and

it was not necessary for him to prepare for the hearing and call

witnesses." According to Mr. Johnson's affidavit, Mr. Haskins

"advised that he intended to 'make a record.' [Mr. Johnson]

asked what make a record meant and was advise d by Mr. Haskins

that Mr. Haskins intended to attend the hearing." Mr. Johnson

further averred that he advised Mr. Haskins that unless he

received written dismissal of the petition, or written

confirmation that Dr. Friday would stipulate to the issuance o f

the permit, Mr. Walker intended to go forward with his proof.

10 . Having received no written confirmation by Monday,

March 15, Mr. Johnson again emailed Mr. Haskins and requested

that he "give me a call on my cell phone." The two spoke a

second time by telephone. According to the affidavit of

Mr. Haskins, he advised Mr. Johnson "that Petitioner did not

intend on presenting any evidence at hearing." On the other

hand, Mr. Walker averred that essentially the same conversation

that took place on S aturday occurred again and that Mr. Haskins

"provided no assurance that he would not pursue the relief in

the petition."

11. The affidavits differ in some respects and create a

conflict that would ordinarily have to be resolved with sworn

testimony. (C ounsel have represented that the deposition of

Mr. Johnson was taken just prior to the hearing on October 15,

2010. However, that deposition was not made a part of the

record. At the Motion hearing, counsel represented that

Mr. Johnson testified t o the same facts reflected in his

affidavit. ) Despite the conflict, it is unnecessary to

reconcile the two affidavits since the first email on March 13 ,

which is a part of the record, provided written notice to

Mr. Haskins that if he did not provide w ritten assurance that he

would not contest the permit, Mr. Johnson 's clients would fly in

from Oregon . It can also be reasonably inferred that this email

provided Mr. Haskins w ith notice that, absent him providing such

written notice , the applicant intend ed to put on its case.

1 2 . Also o n March 15, 2010, Dr. Friday filed a Petition to

Review Non - Final Agency Action and an Emergency Motion to Stay

Administrative Proceeding with the Second District Court of

Appeal. The Petition sought a review of the Order granting the

Department's Motion in Limine, while the Emergency Motion to

Stay sought to stay the administrative proceeding pending a

ruling by the appellate court on the Order granting the

Department's Motion in Limine. Both the Petition and Emergency

M otion were denied by the Court on March 16, 2010, or the day of

the final hearing.

1 3 . At the final hearing on March 16, 2010, Mr. Haskins

reargued the merits of the Motion in Limine and request for a

stay. The earlier rulings were reaffirmed. He also i ndicated

that he would "not . . . present any evidence as to any

environmental matters" since he was "basically relying upon the

criterion" in Rule 62 - 33.008(3)(d) that required the applicant

to submit written evidence from the local government verifying

t hat the proposed activity did not contravene local setback

requirements or zoning codes. After a rather lengthy discussion

on the record, h e agreed to the admission of the applicant's

exhibits which constituted a prima facie case of demonstrating

that all environmental permitting criteria had been satisfied .

He did so with the understanding that this would not prejudice

his right to pursue the circuit court action , and that if he

prevailed in that matter, th e applicant would not be able to

proceed with th e proposed activity authorized by the permit. No

witnesses testified at the hearing, the applicant's exhibits

were received, and the hearing was then adjourned.

1 4 . Affidavits in support of the Motion, which are not

contradicted by counter - affidavits, reflect that after the

Stipulation was filed on March 9, 2010, Mr. Johnson incurred

attorney's fees in the amount of $4,095.00 to prepare for the

hearing with his witnesses . The applicant also incurred costs

in the amount of $2,340.00 for an expert witnes s who w as

expected to present testimony at hearing on the contested

environmental issues raised in the Petition and readopted in the

Stipulation. It is undisputed that the expert attended t he

final hearing on March 16, 2010 , but w as not called to testify .

(A Department witness was also present in Tallahassee ready to

address the contested environmental issues.)

1 5 . Mr. Johnson argued that he had the burden of proof in

showing entitlement to a permit. Absent written notice from

Mr. Haskins that the perm it would not be opposed because of the

issues raised in the Stipulation, Mr. Johnson asserted that he

was obligated to prepare for final hearing and present proof to

contravene those allegations, even if Mr. Haskins did not intend

to offer any witnesses.

1 6 . At oral argument, Mr. Haskins acknowledged that the

environmental issues were secondary in nature, with minimal

potential for success. He indicated that his strongest argument

was always that the project would contravene local zoning and

Plan requi rements. This is confirmed by the fact that most, if

not all, of his discovery was devoted to that issue ; that if the

Motion in Limine had not been denied, his primary witness

intended to address that issue; and that he has continued to

pursue that issue in a separate circuit court action . Moreover,

in his Response to the Motion dated May 17, 2010, he concedes

that "[o]nce the motion in limine was granted, and [his] expert

was not permitted to testify about his opinion, the hearing

became moot."

1 7 . Co unsel for Dr. Friday points out that because the

Motion in Limine was not granted until March 12, 2010, and an

appeal was still pending before the Second District Court of

Appeal on the day of the final hearing, it would have been

imprudent for him to with draw his request for a hearing.

However, if the challenged Orders were later reversed by the

appellate court, the case would be remanded for further

proceedings. Also, even though the Motion in Limine was not

granted until March 12, 2010, counsel was twi ce given an

opportunity to withdraw the environmental allegations after th at

ruling was made. Finally, there is no merit to a concern that

if the environmental issues were withdrawn, and a permit issued,

it would prejudice Dr. Friday's right to pursue the land use

issues in circuit court. In short, no persuasive reason was

given as to why counsel would not confirm in writing that he no

longer intended to pursue the environmental claims.

1 8 . There is no basis to find that the client, rather than

the atto rney, should be subjected to sanctions.

CONCLUSION S OF LAW

1 9 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section s 120.569 and 120.57(1), Florida Statutes.

20 . Mr. Walker has the b urden to prove by a preponderance

of the evidence that sanctions should be awarded under

Section 120.569(2)(e). See Friends of Nassau County, Inc., et

al. v. Nassau County, et al. , 752 So. 2d 42, 52 (Fla. 1st DCA

2000). That statute reads as follows:

(e) All pleadings, motions, or other papers

filed in the proceeding must be signed by

the party, the party's attorney, or the

party's qualified representative. The

signature constitutes a certificate that the

person has read the pleading, motion, or

othe r 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. If a pleading, motion, or other

pape r is signed in violation of these

requirements, 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

fees.

2 1 . Requests for sanctions are most commonly directed

against the initial pleading filed in a proceeding, rather than

a subsequent p aper. Here, however, the "paper" is the

Stipulation executed by counsel seven days before the final

hearing. To establish entitlement to sanctions, Mr. Johnson

must demonstrate that the paper was filed for an improper

purpose.

2 2 . Case law holds that an objective standard is used to

determine improper purpose for the purpose of imposing sanctions

on a party or attorney under the foregoing statute. As stated

in Friends of Nassau County at 50 - 51 :

In the same vein, we stated in Procacci

Commercial Realty , Inc. v. Department of

Health and Rehabilitative Services , 690 So.

2d 603 (Fla. 1st DCA 1997):

The use of an objective standard creates a

requirement to make reasonable inquiry

regarding pertinent facts and applicable

law. In the absence of "direct e vidence of

the party's and counsel's state of mind, we

must examine the circumstantial evidence at

hand and ask, objectively, whether an

ordinary person standing in the party's or

counsel's shoes would have prosecuted the

claim." (citations omitted)

* * *

If, after reasonable inquiry, a person who

reads, then signs, a [paper] had "reasonably

clear justification" to proceed, sanctions

are inappropriate.

2 3 . Had counsel for Dr. Friday considered all of the facts

and circumsta nces when he executed the Stipulation on March 9,

2010, he would have concluded that he did not have reasonably

clear justification to proceed on the environmental issues and

that his only basis for obtaining relief was by showing that the

project was inco nsistent with local zoning and setback

regulations . Accordingly, an ordinary person standing in

counsel's shoes would not have prosecuted the environmental

claims. See Procacci , at 608 n. 9. By counsel failing to

narrow the issues on March 9, 2010, it i s concluded that the

Stipulation was filed for an improper purpose.

2 4 . In Mercedes Lighting and Electric Supply, Inc. v.

Department of General Services , 560 So. 2d 272, 276 (Fla. 1st

DCA 1990), the court, in construing a predecessor statute to

Section 1 20.569(2)(e), stated that like Rule 11 of the Federal

Rules of Civil Procedure, the statute is aimed at deterrence,

not fee shifting or compensating the prevailing party. The

statute is also aimed at the conduct of counsel, and not the

outcome of the proc eeding.

2 5 . Having considered all of the circumstances in this

matter, a reasonable sanction is $2,000.00, to be paid by

counsel within thirty days from the date of this Order.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is

ORDERED that Mr. Walker's Motion for Sanctions is granted,

and counsel for Dr. Friday shall pay Mr. Walker $2,000.00 within

thirty days of the date of this Final Order.

DONE AND ORDERED this 12th day of November , 2010 , in

Tallahassee, Leon County, Fl orida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl .us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of November , 2010 .

ENDNOTE

1 / All statutory references are to the 2009 version of the

Florida Statutes.

COPIES FURNISHED:

Harry W. Haskins, Esquire

Harry W. Haskins, P.A.

3 400 South Tamiami Trail, Suite 201

Sarasota , Florida 34239 - 6093

Charles F. Johnson, Esquire

Blalock, Walters, Held & Johnson, P.A.

802 11th Street , West

Bradenton , Florida 34205 - 7734

Brynna J. Ross , 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 p roceedings 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, 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.