10-008893 David Cope And Cynthia Cope vs. Department Of Environmental Protection And City Of Gulf Breeze Status: Closed DOAH Final Order on Wednesday, October 26, 2011.

Summary: Request for sanctions denied where motion filed after Recommended Order entered.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID AND CYNTHIA COPE, )

)

Petitioner s, )

)

vs. ) Case No. 10 - 8893

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION AND CITY OF GULF )

BREEZE, )

)

Respondent s , )

)

and )

)

PAUL TAMBURRO, )

)

Intervenor. )

_______________________________ )

FINAL ORDER

This Order concerns the City of Gulf Breeze's (City's)

Motion for Sanct ions (Motion) filed on June 3, 2011, under

section 120.569(2)(e), Florida Statutes , which authorizes the

"presiding officer," the administrative law judge in this case,

to sanction a party who files pleadings, motions, or other

papers for an improper purpo se. On the same day, the Department

of Environmental Protection (Department) and Intervenor Paul

Tamburro (Intervenor) filed papers joining in and adopting the

Motion. On July 13 and August 8, 2011, the City filed

Supplement s to its Motion . The M otion is directed against

Petitioners, who unsuccessfully challenged the City's

application for a Consolidated Wetland Resource Permit (Permit)

and Sovereign Submerged Lands Authorization (Authorization) .

See Cope v. City of Gulf Breeze and Dep't of Envtl. Pro t. , Case

No. 10 - 8893, 2011 Fla. ENV LEXIS 8 3 (Fla. DOAH April 20, 2011),

adopted , OGC Case No. 10 - 2342 , 2011 Fla. ENV LEXIS 82 ( Fla. DEP

June 6, 2011). Petitioners did not appeal the final order. By

agreement of the parties, the record in the underlying

proceeding , as supplemented by Petitioners and the City o n

September 23, 2011, is being used to adjudicate the claim. 1

P roposed final orders were filed by Petitioners and the City on

October 13, 2011. (Intervenor , but not the Department, filed a

joinder in the City's proposed final order . ) The parties have

indicated that a hearing on the entitlement issue is

un necessary. The moving parties have the burden to prove their

entitlement to an award of sanctions under the statute. See

Friends of Nassau Cnty., Inc. v. Nassau Cnty. , 752 So. 2d 42, 52

(Fla. 1st DCA 2000)(Padovano, J., dissenting).

Prior to the City's filing the Motion, t he following

relevant events occurred. On August 10, 2010, the Department

issued a notice of intent to issue a Permit and Authorization to

the City, which would allow the City to place fill and

vegetation on sovereign submerged lands adjacent to Deadman's

Island in Pensacola Bay as the last part of a three - phase

restoration project . On September 1, 2010, Petitioners, who

reside near the project, filed a Petition for Formal

Administrative Hearing (Petition) challenging the proposed

action on numerous grounds . 2 After the City filed a motion to

dismiss , or in the alternative, motion for mo re definite

statement and motion to strike on September 15, 2010, an Order

was entered framing the issues to be tried as follows: whether

the City possess ed sufficient upland interest for the proposed

activities on submerged lands; whether the proposed ac tivities

constitute d a restoration project; whether the drawings and

plans were incomplete or inaccurate ; whether the activities were

set back a minimum of 25 feet inside the City's riparian rights

line; and whether the pro ject would unreasonably infringe on

Petitioners' riparian rights. See Order on Motions, Oct. 1,

2010. Notably, all of the allegations were related to the

A uthorization , and not the Permit .

Prior to the hearing, discovery was conducted by the

parties . 3 At the parties' prehearing conference on February 16,

2011, Petitioners' counsel identified only two matters at issue:

whether the City had sufficient upland proprietary interest in

Deadman's Island and whether the project complied with Florida

Administ rative Code Rule 18 - 21.005(1)(c)16., which authorizes

the issuance of a letter of consent for management activities

associated with the protection of a historic site. O n

February 24, 2011, s eparate pre - hearing stipulations

( statements ) were filed by Petitioners and the moving parties.

Although not a model of clarity, P etitioners' pre - hearing

statement indicated that they were still contesting the

Authorization in the following respects: whether the drawings

attached to the application demonstrated that the filling and

vegetation would actually expand Deadman's Island [and interfere

with Petitioners' view] ; whether the p roposed activities

compl ied with rule 18 - 21.005(1)(c)16. ; and whether the

activities would unreasonably infringe on their riparian rights .

(The statement is unclear as to whether Petitioners intended to

pursue their claim that the City lacked sufficient upland

interest to engage in the activities; regardless, proof on this

issue was submitted by the City at final hearing.) The final

hearing was conducted on March 1 and 2, 2011; a Recommended

Order in favor of the City was issued on April 20, 2011; and a

Final Order approving the Permit and Authorization was rendered

by the Department on June 6, 2011.

At the conclusion of the final hearing on March 2, 2011,

the Department announced that it would "likely . . . file a

motion for attorney's fees in this case based on the evidence

[it] heard" but was "not sure" under which statute the motion

would be filed. Tr., Vol. III, p. 413. The City also indicated

that it "intend[ed] to do the same [,] " while the Intervenor

expressed the same intention. Id. In their proposed

recommended orders, both the City and Department requested that

jurisdiction be retained in the case "for the purpose of

considering the anticipated request for attorney's fees, costs,

or sanctions against the Petitioners under any provisions

applicable at that time." (Intervenor did not file a proposed

recommended order.) Because no motion was pending when the

Recommended Order was issued, the matter was not substantively

addressed by that order except for noting that no request had

yet been filed. On April 25, 2011, the day the City says it

received a copy of the Recommended Order, it filed a motion to

confirm the existence of jurisdiction to consider a request for

attorney's fees, costs , and sanctions . This motion was opposed

by Petitioners. By Order dated May 6, 2011, the undersigned

allowed the moving parties to file a request for sanctions under

section 120.569(2)(e) , but denied as being untimely their

request to seek fees and costs under section 120.595(1) . This

ruling was reconfirmed by Order dated July 18, 2011, but with a

strong and explicit reminder to the City that while th e

undersigned still had jurisdiction to consider such a request,

a n unwarranted delay in seeking sanctions , as Petitioners argue

is the case here, militates, in and of itself, against granting

the requested relief. Petitioners continue to maintain that the

undersigned has no jurisdiction to entertain the Motion.

Several broad tenets govern a sanctions request. First, an

essential element of a claim for sanctions is for the moving

parties to identify a specific pleading, motion, or other paper

interposed for an improper purpose, "such as to harass or to

cause unnecessary delay, or for frivolous purpose or needless

increase in the cost of litigation." § 120.569(2)(e), Fla.

Stat.; French v. Dep't of Ch ild . & Fam s. , 920 So. 2d 671, 676 - 77

(Fla. 5th DCA 2006). To determine whether a paper is filed for

an improper purpose, it is necessary to determine whether the

filing is reasonable under the circumstances. Mercedes Lighting

& Elec . Supply Co. v. Dep't of Gen. Serv s . , 560 So. 2d 272, 276

(Fla. 1st DCA 1990). The determination must be based on an

objective evaluation of the circumstances existing at the time

the papers were filed. See Friends of Nassau Cnty . , 752 So. 2d

at 57. (Unlike claims under sections 57.111 and 57.105(5),

liability under section 120.569(2)(e) is determined only based

on the circumstances as of the time of the filing of the

offending document, not subsequently.) The issue is not whether

the non - moving part y would ultimately prevail on the merits.

Rather, the question is whether a party or attorney made a

reasonable inquiry of the facts and law prior to signing and

filing a pleading, motion, or other paper. Id. at 52. Finally,

and especially relevant here , if an obvious offending paper is

filed, a party is obligated to promptly take action to mitigate

the amount of resources expended in defending against the

offending paper. See Mercedes , 560 So. 2d at 276 - 77. A delay

in seeking sanctions undermines the mitigation principle that

applies to the imposition of sanctions. Id. The purpose of the

statute is to deter subsequent abuses , a purpose not well - served

if an offending pleading is fully litigated and the offender is

not punished until th e end of the trial. Id.

Here the moving parties contend that virtually every paper

filed by Petitioners was interposed for an improper purpose,

beginning with the initial Petition, and ending with three

papers filed by Petitioners in response to the Motion. 4 Except

for the latter three papers , all papers to which the Motion is

directed were filed before the final hearing and entry of the

R ecommended O rder. To demonstrate that the delay in filing the

Motion was not unwarranted, in part the City explained i n its

filing to confirm jurisdiction that "it might be a waste of

time, expense, and effort to file such a motion before a

Recommended Order is entered." See Motion to Confirm the

Existence of or to Accept Jurisdiction for Purposes of

Considering Motions for Sanctions, Attorney's Fees and Costs or,

in the Alternative, to Reconsider and/or Modify the Recommended

Order, April 25, 2011, ¶ 15. The City later expl ained that it

wait ed to file its M otion until after the proceeding had

essentially ended because (1) the moving parties decided against

taking any "appreciable discovery" prior to hearing in an effort

to minimize legal expenses ; therefore, they could not h ave known

"until after the Petitioners' presentation of all of their

evidence that their participation in the case (or certain

portions thereof) or filing papers in connection therewith was

done for an improper purpose" ; and (2) the moving parties

desired the entry of the Recommended Order, which "essentially

confirmed" their conclusions regarding Petitioners' improper

intentions . See City Supplement to, and Reply to Petitioners'

Response to, Motion to Confirm the Existence of or to Accept

Jurisdiction for Purposes of Considering Motions for Sanctions,

Attorney's Fees and Costs or, in the Alternative, to Reconsider

and/or Modify the Recommended Order, May 3, 2011, ¶¶ 7 - 8.

Given the record i n this case, had a request for sanctions

(or fees and costs under sections 120.595(1) or 57.105(5)) been

timely filed, a different result might be reached. Here,

however, b ecause the Motion was not filed until after the entry

of the Recommended Order, thi s in itself warrants denial of the

request for sanctions as to all pleadings, motions, or other

papers filed by Petitioners prior to that time. This is

consistent with judicial and administrative rulings that a party

is required to promptly notify the off ending party and tribunal

that an obvious offending paper has been filed. The City

contends, however, that it timely filed a motion to dismiss the

initial pleading ; that on at least three occasions in October

and November 2010 the moving parties advised opposing counsel by

oral communication and email s that sanctions would be sought in

the event they were successful at the final hearing; that the

moving parties sought to dismiss the initial pleading, as

amended, at the beginning of the final hearing; tha t an

evidentiary hearing , followed by favorable findings in a

recommended order , was necessary to confirm that Petitioners'

allegations were unsubstantiated and frivolous; and that post -

hearing depositions reveal ed that Petitioners and their counsel

made no reasonable inquiry with experts or other informed

persons prior to signing the initial complaint . But the motion

to dismiss simply tested the legal sufficiency of the pleading,

not whether the allegations could be proven or were based upon a

reaso nable inquiry prior to the Petition being signed.

Likewise, verbal communications and emails to opposing counsel

warning that fees, costs, and sanctions might be sought at the

conclusion of the proceeding do not trigger the statute or a llow

the offending party to be promptly punished, if warranted, so as

to deter the filing of other papers for an improper purpose.

Similarly, depositions conducted long after the hearing to

verify whether Petitioners investigated the bases for their

allegations in the initial pleading or other papers are too

late. Finally, a party cannot rely on favorable findings in a

recommended order to justify sanctions , since sanctions must be

based on the circumstances existing when the papers ar e filed.

See , e.g. , Beverly Health & Rehab. Serv . - Palm Bay v. Agency for

Health Care Admin. , Case No. 02 - 1297F, 2003 Fla. Div. Adm. Hear.

LEXIS 227 at *6 (Fla. DOAH April 25, 2003) (reliance on findings

in the recommended order that non - moving party's allegations

were not meritorious is not an adequate basis for imposition of

sanctions).

Accepting the City's invitation to rule otherwise would

encourage a party to sit back and fully litigate a case, and

depend ing on the final outcome, to then seek sanctions under

section 120.569(2)(e) ; clearly, this process is not contemplated

by the statute . See , e.g. , Spanish Oaks of Cent . Fla., LLC v.

Lake Region Audubon Soc 'y , Inc. , Case No. 05 - 4644F, 2006 Fla.

Div. Adm. Hear. LEXIS 294 at *48 (Fla. DOAH July 7, 2006)(where

moving party did not file request for sanctions until "just

prior to the final hearing," delay warranted denial of request) ;

Rustic Hills Phase III Prop . Owners Ass'n v. Olson , Case No. 00 -

4792 , Order Denying Sanctions Under Section 120.569(2)(e) , (Fla.

DOAH July 31, 2001)(where moving parties waited until final

hearing to seek sanctions, and the basis for sanctions was the

weakness of the evidentiary presentation , sanctions not

awarded) ; Hasselback v. Dep't of Envtl. Prot . , Case No. 07 - 5216,

2011 Fla. ENV. LEXIS 63 (Fla. DOAH June 14, 201 1 )(failure to

timely take action to mitigate the amount of resources expended

in litigating the permit criteria warranted denial of request

for sanctions) ; Still v. New River Solid Waste Ass'n , Case No.

01 - 1033, 2001 Fla. Div. Adm. Hear. LEXIS 2720 (Fla. DO AH Aug. 7,

2001)( request denied where moving party waited until final

hearing to seek sanctions directed to non - moving party's amended

petition for hearing ) ; Alfonso v. Constr. Indus. Licensing Bd. ,

Case No. 05 - 4711, Order Denying Motion for Attorney's Fee s,

(Fla. DOAH July 26, 2006) ( sanctions denied as being untimely

where request was filed two weeks after proposed recommended

orders were submitted by parties) . The moving parties have

cited no contrary authority on this issue . Accordingly, as to

all papers filed prior to the filing of the Motion, the request

for sanctions is denied.

The remaining papers for which sanctions are sought are

three filed by Petitioners' counsel in response to the Motion:

(a) Petitioners' Response in Opposition to City's Motion for

Imposition of Florida Statute 120.569(2)(e) Sanctions and DEP's

and Intervenor's Adoption and Joinder Therein filed on June 13,

2011; (b) Petitioners' Motion to Stay Pending Discovery

Proceedings Related to Pending Fla. Stat. 120.569(2(E) [ sic ]

Sanctions Motions file d on July 8, 2011 ; and (c) Petitioners'

Motion to Dismiss City's, DEP's and Intervenor's Motions for

Imposition of Fla. Stat. 120.5 69(2)(e) Sanctions for Lack of

Jurisdiction filed on July 29, 2011. The first paper argued

that the undersigned lacks subject matter jurisdiction to

consider the Motion and that the challenged pleadings, motions,

and papers were not filed for an improper purpose. 5 The second

filing requested a stay of the City's pending discovery requests

until the jurisdictional issue was resolved. The purpose of the

third paper was "to insure proper preservation of the

jurisdiction issue in this case in the event of a subsequent

appellate proceeding that includes the jurisdictional issue."

While the three papers are redundant in certain respects, g iven

the totality of the circumstances, it is concluded that none was

interposed for an improper purpose, that each was rea sonable

under the circumstances existing at that time, and that each was

filed in good faith to assert (a) that no paper was filed in

this case for an improper purpose, and (b) that the Motion is

untimely and therefore the undersigned lack s jurisdiction to

consider the same. Because it has not been established that the

three paper s w ere interposed in this matter for an improper

purpose , entitlement to sanctions has not been shown . As to

these papers, t he Motion is also denied.

DONE AND ORDERED this 26th day of October , 2011 , in

Tallahassee, Leon County, Florida.

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 26th day of October , 2011 .

ENDNOTES

1/ Besides the underlying record, which consists of the three -

volume Transcript and the exhibits received in evidence at the

final hearing, the following items were submitted by the City:

excerpts of the deposition of Petitioners' counsel taken by the

City on September 13, 2011; affidavits of the City Attorney and

City Director of Finance; excerpts of the depositions of the

Copes taken by the City on October 4, 2009, November 5, 2009,

and A ugust 31, 2011; excerpts of Dr. Cope's responses to the

City's First Set of Interrogatories dated August 1, 2011 ;

and the City's responses to Petitioners' First Set of

Interrogatories dated October 25, 2010 . Petitioners submitted

the following items: various correspondence and emails between

the parties; a memorandum authored by the City Manager on

June 6, 2011 ; an article in a local newspaper published on

June 16, 2011; the City's First Set of Interrogatories to

Dr. Cope served on July 1, 2011 ; the complete depositions

(with exhibits and errata sheets) of the Copes and their

attorney taken on August 31 and September 13, 2011 ; and the

City's responses to Petitioners' First Set of Interrogatories

dated October 2 5, 2010 . On October 4, 2011, Petitioners moved

to strike the two affidavits filed by the City. Th e motion is

now moot, given the final d isposition of th is matter.

2/ Petitioners also filed administrative challenges to the

first two phases of the project. See Case Nos. 08 - 3096 and 09 -

4870. The first case was settled by the parties, while

Petitioners filed a voluntary dismissal in the second. One of

the exhibits s ubmitted by Petitioners to supplement the record

indicates that the City spent "up to $100,000" in defending

against these challenges. See Petitioners' Notice of Filing Per

8 - 22 - 2011 Order, Sept. 23, 2011, Item 4.

3 / The City's p re - hearing discovery in cluded re quest s for

admissions , a request for production of documents , and

depositions of the Copes . In addition, the moving parties w ere

authorized to enter Petitioners' property (residence) for the

purpose of taking photographs , which were received as evidence

at hearing . Petitioners served requests for admissions,

requests for production of documents , and interrogatories on the

City and Department, and a request for production of documents

on Intervenor. The City also conducted post - hearing disco very ,

including depositions of the Copes and their attorney.

4/ These papers are identified on pages 9 and 10 of the Motion,

as supplemented on July 13 and August 8, 2011, and include the

initial Petition; all discovery propounded by Petitioners;

various responses by Petitioners to the City's discovery

requests; two papers regarding the attorneys' prehearing

conference; Petitioners' requests for a continuance;

Petitioners' motion to amend their initial pleading;

Petitioners' unilateral pre - hearing stipula tion; Petitioners'

exhibits sought to be utilized at final hearing; Petitioners'

proposed recommended order; and three papers filed in response

to the Motion.

5 / No appellate court has directly addressed the jurisdictional

issue . However , Petitioners rely on several administrative

decisions where requests for sanctions that were filed either

after a voluntary dismissal had been filed by the non - moving

party or jurisdiction had been relinquished to the agency were

deemed to be untimely. The se cases are distinguishable from the

situation here. They also rely on Sellars v. Broward C nty . Sch .

Bd. , Case No. 97 - 3540F, 1997 Fla. Div. Adm. Hear. LEXIS 5678

(Fla. DOAH Sept. 25, 1997) , where a r equest for attorney's fees

and costs (without identifyi ng the statutory basis for relief)

filed after the entry of a recommended order was found to be

untimely. Unlike Sellars , however, here the moving parties

o rally requested at final hearing that jurisdiction be reserved

for that purpose; the y also renewed that request in their

proposed recommended orders.

COPIES FURNISHED:

Thomas M. Brady , Esquire

Post Office Box 12584

Pensacola , Florida 32591 - 1284

Brynna J. Ross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399 - 3000

Matt E. Dannheisser, Esquire

Matt E. Dannheisser, P.A.

504 North Baylen Street

Pensacola , Florida 32501 - 3904

Margery M. Tamburro, Esquire

Margery M. Tamburro, PLLC

114 Highpoin t Drive

Gulf Breeze, Florida 32561 - 4016

NOTICE OF RIGHT TO JUDICIAL REVIEW

A person 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 in the First District, or with the District Court of

Appeal in the Appell ate District where the party resides. The

notice of appeal must be filed within 30 days of rendition of

the order to be reviewed.