12-002795F Okaloosa County, Florida, And Nassau County, Florida vs. Department Of Juvenile Justice Status: Closed DOAH Final Order on Monday, July 15, 2013.

Summary: Petitioners are entitled to recover attorneys' fees and costs incurred in their challenge to an existing rule.

Case No. 12-2795F

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OKALOOSA COUNTY, FLORIDA, AND

NASSAU COUNTY, FLORIDA,

Petitioners, FINAL ORDER

vs.

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

/

This came before the undersigned on Petitioners’ Motion for

Award of Attorneys’ Fees and Costs, and renewed motion for

attorneys’ fees and costs as set forth in Petitioners’ Response

to Order Continuing Case in Abeyance and Requiring Status

Report. Based upon the affidavits filed by Petitioners and the

pleadings of record which reflect a lack of any genuine dispute

as to the appropriate amount of fees and costs to be awarded, no

hearing of the matter is necessary.

APPEARANCES

For Petitioners: Gregory T. Stewart, Esquire

Carly J. Schrader, Esquire

Lynn M. Hoshihara, Esquire

Nabors, Giblin & Nickerson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

For Respondent: Michael J. Wheeler, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue to be determined is the amount of attorneys’ fees

and costs to be awarded to Petitioners pursuant to section

120.595(3), Florida Statutes (2012).

PRELIMINARY STATEMENT

This is an action for attorneys’ fees and costs following a

successful challenge by Petitioners to existing rules

(Challenged Rules) of the Department of Juvenile Justice

(Department) pursuant to section 120.56, Florida Statutes, on

the basis that the Challenged Rules conflicted with section

985.686, Florida Statutes, the law implemented.

In Case No. 12-0891RX, a Final Order was issued on July 17,

2012, invalidating the Challenged Rules and determining that an

award of attorneys’ fees and costs was appropriate based upon

section 120.595(3), Florida Statutes. The Final Order retained

jurisdiction to determine the amount of attorneys’ fees and

costs to be awarded to Petitioners.

On August 15, 2012, Petitioners filed their Motion for

Award of Attorneys’ Fees and Costs, and the case was assigned

Case No. 12-2795F. Shortly thereafter, Respondent filed its

Notice of Appeal of the underlying Final Order invalidating the

Challenged Rules. The Department sought a stay of the Motion

for Attorneys’ Fees and Costs. As a result, on September 24,

2012, the undersigned entered an Order placing the matter in

abeyance for 60 days to give the parties ample opportunity to

attempt to reach agreement on the appropriate amount of fees and

costs to be awarded. Subsequently, on December 6, 2012, another

Order was entered continuing the abeyance of this matter until

entry of a Mandate by the First District Court of Appeal in Case

No. 12-0891RX.

On June 5, 2013, the First District Court of Appeal

affirmed by written opinion the Final Order in DOAH Case

No. 12-0891RX. Dep’t of Juv. Just. v. Okaloosa Cnty. , Case

No. 1D12-3929, 38 Fla. L. Weekly D 1249 (Fla. 1st DCA June 5,

2013). The Court’s Mandate followed on June 21, 2013.

On June 28, 2013, Petitioners filed a status report in this

case, and requested that attorneys’ fees and costs be awarded to

Petitioners and against the Department in the amount of

$50,000.00. In response, the Department filed a Motion to Deny

the Awarding of Attorneys’ Fees, but subsequently requested, and

was granted, leave to withdraw its motion in opposition to the

award of fees.

Based upon the pleadings and other matters of record, the

following findings of fact are made:

FINDINGS OF FACT

1. Petitioners, Okaloosa County and Nassau County, filed a

challenge to existing rules of the Department of Juvenile

Justice pursuant to section 120.56, Florida Statutes, on the

basis that the rules conflicted with section 985.686, Florida

Statutes, the law implemented. Okaloosa Cnty. & Nassau Cnty. v.

Dep’t of Juv. Just. , DOAH Case No. 12-0891RX (Fla. DOAH July 17,

2012).

2. The Petition specifically alleged that “Petitioners are

obligated to pay their attorneys a reasonable fee and are

entitled to recover their reasonable costs and attorneys’ fees

under section 120.595(3), Florida Statutes,” and requested an

award of attorneys’ fees and costs pursuant to the same.

3. On July 17, 2012, after a final hearing, the

undersigned entered a Final Order invalidating the Challenged

Rules and determining that an award of attorneys’ fees and costs

was appropriate based on section 120.595(3), Florida Statutes.

Jurisdiction was retained to determine the appropriate amount of

fees and costs.

4. The Department appealed the Final Order in DOAH Case

No. 12-0891RX, and on June 5, 2013, the First District Court of

Appeal affirmed by written opinion the Final Order. Dep’t of

Juv. Just. v. Okaloosa Cnty. , Case No. 1D12-3929, 38 Fla. L.

Weekly D 1249 (Fla. 1st DCA June 5, 2013).

5. Petitioners established by affidavit (attached to their

Motion for Award of Attorneys’ Fees and Costs) that they were

billed a total of $89,580.00 in attorneys’ fees for services

directly related to prosecuting DOAH Case No. 12-0891RX. The

hourly rates charged for the work of the attorneys involved in

the case, as well as the amount of time expended on each task,

are reasonable.

6. Since Petitioners incurred attorneys’ fees and costs

well in excess of $50,000.00, they are seeking the maximum

attorneys’ fees and costs award allowable pursuant to section

120.595(3), which is $50,000.00.

7. While no formal written stipulation as to the

appropriate amount of attorneys’ fees and costs has been filed

in this case, there is no indication in this record that the

Department disputes the reasonableness of the $50,000.00 award

being sought by Petitioners. To the contrary, Petitioners filed

a series of e-mail communications between counsel for

Petitioners and the Department reflecting that the Department

“does not dispute the 50K figure and will pay it” after the

appeal is resolved if the Department does not prevail. In

addition, the Department’s Motion to Deny the Awarding of

Attorneys’ Fees contains the statement that “Respondent

stipulated to awarding Petitioners $50,000.00 in attorneys’

fees . . . .”

8. Petitioners have established that the requested award

of $50,000.00 in attorneys’ fees and costs is reasonable.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1),

Florida Statutes (2012).

10. Section 120.595(3) provides in pertinent part:

(3) CHALLENGES TO EXISTING AGENCY RULES

PURSUANT TO SECTION 120.56 (3) AND (5).—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 attorneys’ 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

attorneys’ 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

attorneys’ fees as provided by this

subsection shall exceed $50,000.

11. For the reasons set forth in the Final Order in Case

No. 12-0891RX, an award of fees and costs to Petitioners based

upon section 120.595(3) is appropriate.

12. There does not appear to be any genuine dispute that

Petitioners are entitled to an award of $50,000.00, the maximum

amount allowed pursuant to section 120.595(3). Moreover, the

undersigned concludes that the amount of the award sought by

Petitioners is reasonable.

Accordingly, it is

ORDERED that Petitioners, Okaloosa County and Nassau

County, are hereby awarded the sum total of $50,000.00 in

attorneys’ fees and costs. The above sum is to be paid by

Respondent on or before the 60th day following the entry of this

Final Order.

DONE AND ORDERED this 15th day of July, 2013, in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 15th day of July, 2013.

COPIES FURNISHED:

Terrell K. Arline, Esquire

Bay County Attorneys’ Office

840 West 11th Street

Panama City, Florida 32401-2336

Brian Berkowitz, Esquire

Department of Juvenile Justice

Knight Building, Room 312V

2737 Centerview Drive

Tallahassee, Florida 32399

Michael J. Wheeler, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Linda Brehmer Lanosa, Esquire

Orange County Attorney`s Office

Litigation Section

201 South Rosalind Avenue, 3rd Floor

Post Office Box 1393

Orlando, Florida 32802-1393

John R. Dowd, Esquire

Okaloosa County Attorney`s Office

Post Office Box 404

901 Eglin Parkway

Shalimar, Florida 32579-0404

David Allen Hallman, Esquire

Nassau County Attorney

Suite 6

96135 Nassau Place

Yulee, Florida 32097-8635

Gregory T. Stewart, Esquire

Carly J. Schrader, Esquire

Lynn M. Hoshihara, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

Carl Edward Brody, Esquire

Pinellas County Attorneys’ Office

6th Floor

315 Court Street

Clearwater, Florida 33756

Robert A. Cuevas, Esquire

Miami-Dade County Attorney

Suite 2810

111 Northwest 1st Street

Miami, Florida 33128-1930

Wansley H. Walters, Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Brian Berkowitz, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

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 administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.