09-006206F Brooklyn Luncheonette, Llc, D/B/A Del Tura Pub And Restaurant vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed DOAH Final Order on Monday, January 11, 2010.

Summary: After Respondent waived its right to demonstrate that its actions were substantially justified, a final order was entered awarding attorney's fees and costs, following the rule challenge proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROOKLYN LUNCHEONETTE, LLC, )

d/b/a DEL TURA PUB AND )

RESTAURANT, )

)

Petitioner, )

)

vs. ) Case No. 09-6206F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Respondent. )

)

FINAL ORDER

A formal hearing being unnecessary in this case, this cause

came before Daniel M. Kilbride, a duly-designated Administrative

Law Judge (ALJ) of the Division of Administrative Hearings

(DOAH) for determination of reasonable costs and attorney’s

fees, on January 7, 2010, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Harold F. X. Purnell, Esquire

Rutledge, Ecenia & Purnell, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

For Respondent: Michael Golden, Assistant General Counsel

Department of Business and

Professional Regulation

Northwood Centre, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue before DOAH is a determination of the amount of

attorney’s fees and costs to be awarded for the administrative

proceedings in Brooklyn Luncheonette, LLC v. Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco , Case No. 09-1973 (DOAH October 23, 2009).

PRELIMINARY STATEMENT

Subsequent to the issuance of a Summary Final Order, dated

October 23, 2009, by the undersigned ALJ, Petitioner filed a

Motion for Attorney’s Fees, pursuant to Subsection 120.595(3),

Florida Statutes. Harold F.X. Purnell, Esquire, counsel for

Petitioner, filed a Motion for Attorney’s Fees with DOAH on

November 10, 2009, together with his own affidavit and time

sheets, and the affidavit and time sheets of his co-counsel,

Maggie M. Schultz, Esquire.

The Motion was treated as a petition for attorney’s fees

and costs, and this file was initiated. Subsequently,

Respondent executed a Joint Stipulation Regarding Attorney’s

Fees, which was filed on December 16, 2009. Therefore, a

hearing on the amount of attorney’s fees and costs is determined

to be unnecessary. In addition, Respondent has waived its right

to demonstrate that its actions were substantially justified or

special circumstances exist which would make the award unjust.

FINDINGS OF FACT

1. On October 23, 2009, the undersigned ALJ of DOAH issued

a Summary Final Order in the case of Brooklyn Luncheonette, LLC

v. Department of Business and Professional Regulation, Division

of Alcoholic Beverages and Tobacco , Case No. 09-1973 (DOAH

October 23, 2009), in which it was held that Florida

Department of Business and Professional Regulation, and its

directive that the square footage making up the licensed

premises of an SRX license be “contiguous,” constitutes an

invalid exercise of delegated legislative authority “that cannot

be relied upon by Respondent to deny the issuance of an SRX

license to Petitioner.”

2. No appeal was taken of said Order and the license was

issued.

3. In the Joint Stipulation Regarding Attorney’s Fees,

Respondent waived its right to demonstrate that its actions were

justified or that special circumstances exist which would make

the award unjust.

4. Based on a review of the underlying file, the

affidavits of the attorneys filed with the petition, the

Stipulation filed herein, and the procedure for calculating the

lodestar figure set forth in Rowe , Harold F. X. Purnell and

Maggie M. Schultz’s attorney’s fees totaled $16,301.25. These

fees are determined to be reasonable, and no adjustment is

warranted.

5. Based on the affidavits and Stipulation filed herein,

Petitioner has established that the costs of pursuing the

administrative proceeding disputing the validity of the rule

challenged totaled $408.47.

CONCLUSIONS OF LAW

6. DOAH has jurisdiction of the subject matter of this

proceeding and of the parties thereto, pursuant to Section

120.595, Florida Statutes (2009).

7. Subsection 120.595(3), Florida Statutes, provides in

pertinent part:

* * *

CHALLENGES . . . If the appellate court or

administrative law judge declares a rule or

portion of a rule invalid pursuant to s.

120.56(3) or (5), a judgment or order shall

be rendered against the agency for

reasonable costs and reasonable attorney’s

fees, unless the agency demonstrates that

its actions were substantially justified or

special circumstances exist which would make

the award unjust. An agency’s actions are

“substantially justified” if there was a

reasonable basis in law and fact at the time

the actions were taken by the agency. If

the agency prevails in the proceedings, the

appellate court or administrative law judge

shall award reasonable costs and reasonable

attorney’s fees against a party if the

appellate court or administrative law judge

determines that a party participated in the

proceedings for an improper purpose as

defined by paragraph (1)(e). No award of

attorney’s fees as provided by this

subsection shall exceed $50,000.

Attorney’s fees

8. The method for determining reasonable attorney’s fees,

which is founded on the federal “lodestar approach,” is well

established in Florida. In Florida Patient’s Compensation Fund

v. Rowe , 472 So. 2d 1145, 1151-1152 (Fla. 1985), the Florida

Supreme Court summarized the steps to be followed in computing

attorney’s fees:

In summary, in computing an attorney fee,

the trial judge should (1) determine the

number of hours reasonably expended on the

litigation; (2) determine the reasonable

hourly rate for this type of litigation; (3)

multiply the result of (1) and (2); and,

when appropriate, (4) adjust the fee on the

basis of the contingent nature of the

litigation or the failure to prevail on a

claim or claims.

9. Based on the findings of fact above, and the procedure

for calculating the lodestar figure set forth in Rowe , an

attorney’s fee of $16,301.25 is determined to be reasonable.

10. The costs of pursuing the administrative proceeding

totaled $408.47.

CONCLUSION

Based on the foregoing Stipulation and Conclusions of Law,

it is ORDERED that:

1. Petitioner is awarded reasonable attorney’s fees for

the administrative proceeding in DOAH Case No. 09-1973RX, in the

amount of $16,301.25;

2. Reasonable costs are awarded for the administrative

proceeding in DOAH Case No. 09-1973RX in the amount of $408.47;

and,

3. These sums are to be paid to Petitioner by the

Department of Business and Professional Regulation, with

interest accruing at the statutory rate from October 23, 2009.

DONE AND ORDERED this 11th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of January, 2010.

COPIES FURNISHED :

Harold F. X. Purnell, Esquire

Rutledge, Ecenia & Purnell, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Michael Golen, Assistant General Counsel

Department of Business and

Professional Regulation

Northwood Centre, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jerry Geier, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are 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.