14-004173FC G. B., Z. L., Through His Guardian K. L., J. H., And M. R. vs. Agency For Persons With Disabilities Status: Closed DOAH Final Order on Wednesday, January 27, 2016.

Summary: Petitioners' request for attorney's fees is capped by statutory mandate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

G. B., Z. L., THROUGH HIS

GUARDIAN K. L., J. H., AND M.

R.,

Petitioners,

vs. Case No. 14 - 4173FC

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a hearing was conducted in this case on

February 10, 201 5 , in Tallahassee, Florida, before Administrative

Law Judge R. Bruce McKibben of the Division of Administrative

Hearings, pursuant to the authority set forth in s ec tion

120.57(1), Florida Statutes. Unless otherwise stated

specifically herein, all references to the Florida Statutes will

be to the 2014 codification.

APPEARANCES

For Petitioner s : Gigi Rollini, Esquire

Thomas M. Findley, Esquire

Thomas Bateman, Esquire

Ellery Sedgwick, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

For Respondent: Karl David Acuff, Esquire

Law Office of Karl David Acuff, P.A.

Suite 2

1615 Village Square Boulevard

Tallahassee, Florida 32309 - 2770

Richard D. Tritschler, Esquire

Brian McGrail, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

D avid Yon, Esquire

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

301 South Bronough Street, Suite 200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is the amount of

attorneyÓs fees to be paid by Respondent, Agency for Persons w ith

Disabilities (ÐAPDÑ or the ÐAgencyÑ), to the Petitioners, G.B.,

Z.L., through his guardian K.L., J.H., and M.R.

PRELIMINARY STATEMENT

This matter arises from an Order entered by the Florida

First District Court of Appeal dated July 21, 2014 (the ÐFee

OrderÑ). The Fee Order states as follows:

[PetitionerÓs] motion filed May 12, 2014, for

attorneyÓs fees is granted. This case is

remanded to the tri al court for the

determination of the amount thereof if the

parties are unable to agree on an amount.

The parties were not able to agree on an amount. On September 5,

2014, Petitioners filed a ÐMotion to Reopen or to Establish Fee

Case for Award of Atto rneyÓs Fees and Taxable CostsÑ at the

Division of Administrative Hearings. The matter was assigned to

the undersigned A dministrative L aw J udge. On November 4, 2014,

the undersigned issued an Order directing the parties to provide

notice as to whether the matter had been resolved or, if not, to

propose available dates for final hearing. Each party

unilaterally filed a response to the Order, setting forth

proposed dates for a hearing on the matter of attorneyÓs fees.

The final hearing was held on Februar y 10, 2015. At

hearing, each of the parties was represented by legal counsel.

Petitioners offered three e xhibits into evidence, each of which

was admitted. The Agency did not offer any exhibits, but asked

for leave to submit a late - filed exhibit -- a resp onse to

PetitionersÓ expertÓs affidavit -- upon conclusion of the hearing.

The request was granted. Petitioners asked for leave to submit a

response to the AgencyÓs late - filed exhibit and that request was

also granted. The AgencyÓs late - filed exhibit was filed on

February 17, 2015. Petitioner s then filed a supplemental

affidavit of attorneyÓs fees and costs on February 26, seeking

fees for its work in the fee case.

The proceeding was recorded, transcribed, and a T ranscript

was filed at the Division on M arch 3, 2015. The parties were

given ten days from the date the T ranscript was filed to submit

their proposed final orders. Petitioners and the Agency each

filed proposed final orders, each of which has been considered in

the preparation of this Final Or der.

Subsequent to the submission of proposed final orders,

Petitioner s filed a motion to admit additional evidence. APD

filed an objection to the motion. Petitioner s cited no authority

to support its request for late - filed evidence. Also,

Petitioner s f ailed to confer with counsel for APD concerning the

motion, in derogation of Fl orida Admin istrative Code R ule 28 -

106.204(3). The motion is denied.

FINDINGS AND CONCLUSIONS

1. This matter is related to the promulgation of proposed

rules 65G - 4.0210 throu gh 65G - 4.027 (the ÐProposed RulesÑ) by the

Agency in May 2013 in its effort to follow the mandate issued by

the Florida Legislature concerning the iBudget statute, s ection

393.0662, Fl orida Statute (2010). Petitioners challenged the

Proposed Rules in DOAH Case No. 13 - 1849RP. The Proposed Rules

were upheld by the Administrative Law Judge, but Petitioners

appealed the Final Order to the First District Court of Appeal

(the ÐCourtÑ). The CourtÓs decision was rendered July 21, 2014.

G.B. v. Ag . for Pers . w it h Disab . , 143 So. 3d 454 (Fla. 1 st DCA

2014). The Fee Order was entered by the Court on the same date.

2. The Fee Order had been entered upon the filing of a

motion for appellate attorneyÓs fees filed with the Court by

Appellant s /Petitioners. The moti on set forth three bases for an

award of fees, to wit:

1 ) Section 120.595(2), Florida Statutes ,

which provides:

Challenges to Proposed Agency Rules Pursuant

to Section 120.56(2). Î If the appellate court

or the administrative law judge declares a

proposed rule or portion of a proposed rule

invalid pursuant to s. 120.56(2), a judgment

or order shall be rendered against the agency

for reasonable costs and reasonable

attorneyÓs fees, unless the agency

demonstrates that its actions were

substantially justified or special

circumstances exist which would make the

award unjust. An agencyÓs actions are

Ðsubstantially justifiedÑ 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 proceedin gs, the

appellate court or administrative law judge

shall award reasonable costs and reasonable

attorneyÓs fees against a party if the

appellate court or administrative law judge

determines that a party participated in the

proceedings for an improper purpo se as

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

attorneyÓs fees as provided by this

subsection shall exceed $50,000.

2) Section 120.595(5), Florida Statutes ,

which provides:

Appeals. Î When there is an appeal, the court

in its discretion may award reason able

attorneyÓs fees and reasonable costs to the

prevailing party if the court finds that the

appeal was frivolous, meritless, or an abuse

of the appellate process, or that the agency

action which precipitated the appeal was a

gross abuse of the agencyÓs d iscretion. Upon

review of the agency action that precipitates

an appeal, if the court finds that the agency

improperly rejected or modified findings of

fact in a recommended order, the court shall

award reasonable attorneyÓs fees and

reasonable costs to a prevailing appellant

for the administrative proceeding and the

appellate proceeding.

3) Section 120.569(2)(e), Florida Statutes ,

which provides:

All pleadings, motions, or other papers filed

in the proceeding must be signed by the

party, the partyÓs at torney, or the partyÓs

qualified representative. The signature

constitutes a certificate that the person 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 hara ss or to cause unnecessary

delay, or for frivolous purpose or needless

increase in the cost of litigation. If a

pleading, motion or other paper 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 expense

incurred because of the filing of the

pleading, motion, or other paper, including a

reasonable attorneyÓ s fee.

3. The Court did not specifically address which of

PetitionersÓ stated bases for award of attorneyÓs fees was being

relied upon when granting PetitionersÓ motion. Petitioners

assert that it must therefore be presumed that the Court granted

the re quest for fees on the basis of all three of PetitionersÓ

bases. There is no other support for that presumption, as the

Fee Order is silent on the issue. It could equally be presumed

that only one of the bases was relied upon by the Court. Thus, a

determ ination of the appropriate basis for fees is critical in

the determination of the amount of fees to be awarded, as will be

set forth more particularly below. The Fee Order establishes

only that attorneyÓs fees are awarded, with leave for the parties

to de termine the appropriate amount or, failing to do so, obtain

direction from an Administrative Law Judge on the matter. There

is no issue as to whether Petitioners are entitled to fees or

costs, only the amount to be awarded.

4. DOAH has jurisdiction over the parties and the subject

matter of this proceeding under the August 6, 2014, Mandate of

the First DCA, and under section 120.595(2). Although it is

herein determined that section 120.595(2) is the appropriate

provision to be considered for fees in thi s case, each of the

other statutory sections argued in PetitionersÓ motion for fees

will be addressed nonetheless.

Section 120.595(5)

5. If section 120.595(5) is to be the basis for fees, it

must be shown that Respondent is guilty of a Ðgross abuseÑ of its

discretion. ÐGross abuseÑ is not defined in statute. As stated

by the Court in Allstate Floridian Insurance Co. v. Ronco

Inventions, LLC , 890 So. 2d 300, 302 (Fla. 2d DCA 2004), ÐThe

troublesome nature of our review here is the admittedly high

Ògr oss abuse of discretionÓ standard. . . . However, we have no

definition of what a ÒgrossÓ abuse of discretion includes or how

it differs from an abuse of discretion. We can only assume that

it is more egregious than a typical abuse of discretion.Ñ The

C ourt cited Canakaris v . Canakaris , 382 So. 2d 1197 (Fla. 1980),

in which the Supreme Court iterated that if reasonable men could

differ on an issue, there was no abuse of discretion to act one

way or the other.

6. Other courts, looking at the issue of Ðab use of

discretionÑ in administrative matters, have struggled with a

definitive description or definition. In Citizens to Preserve

Overton Park, Inc., et al. v. Volpe, Secretary of Transportation ,

401 U.S. 402; 91 S. Ct. 814; 23 L. Ed. 2d 136 (1971), the C ourt

was trying to determine whether the Transportation Secretary had

acted within his discretion. The Court decided it Ðmust consider

whether the decision was based on clear error or judgment.

[citations omitted] Although this inquiry into the facts is t o be

searching and careful, the ultimate standard of review is a

narrow one. The Court is not empowered to substitute its

judgment for that of the agency.Ñ Id. , at 416. And, as found by

another Court, whether an act is arbitrary, capricious, or an

abuse of discretion is Ðfar from being entirely discrete as a

matter of the ordinary meaning of language. . . . Rather than

denoting a fixed template to be imposed mechanically on every

case within their ambit, these words summon forth what may best

be describ ed as an attitude of mind in the reviewing court one

that is Òsearching and carefulÓ . . . yet, in the last analysis,

diffident and deferential.Ñ Natural Res . Def . Council, Inc., et

al . v. Sec . and Exch . Comm 'n , et al . , 606 F.2d 1031, 1034, U.S.

App. DC ( 1979).

7. In F t . Myers Real Estate Holdings, LLC, v. Dep artment of

Bus iness and Prof essional Reg ulation , 53 So. 3d 1158 (Fla. 1 st

DCA 2011), the Court awarded fees under s ection 120.595(5). In

that case, the agency denied party status to the applicant fo r

services. The Court said, ÐThe position taken by the Division in

the dismissal order, and maintained in this appeal, is so

contrary to the fundamental principles of administrative law

that, by separate order, we have granted AppellantÓs motion for

attor neyÓs fees under section 120.595(5), Florida Statutes.Ñ The

Court did not, however, define gross abuse of discretion any more

specifically than that.

8. Likewise, in Salam v. B oard of Prof essional Eng ineers ,

946 So. 2d 48 (Fla. 1 st DCA 2006), the Court f ound that an

agencyÓs intentional delay on acting upon a petition for formal

administrative hearing warranted fees under the statute. The

Salam Court did not further define gross abuse of discretion; it

merely found that such abuse existed under the circu mstances of

the case.

9. Gross abuse of discretion must, by definition, be more

difficult to ascertain than simple abuse of discretion. Gross

abuse implies that the Agency first believed its intended action

was improper, yet engaged in the action despit e that knowledge.

That is, that the Agency acted intentionally to do something it

knew to be wrong. Proof of such intent would be extremely

difficult. 1/

10. One need only look at the plain language of the CourtÓs

opinion in the rule challenge appeal a t issue here to see that

there was no gross abuse of discretion. The Court ultimately

held that although the AgencyÓs rules Ðdirectly conflict with and

contravene the LegislatureÓs clear languageÑ concerning

development of an algorithm to assist with the distribution of

funds to needy Floridians, Ð[W]e recognize the difficulty in

adhering to the LegislatureÓs command to create an algorithm

solely capable of determining each clientÓs level of need.

Further, we accept that [Respondent] is attempting to find a

reasonable way to administer funds to the tens - of - thousands of

people in need that it assists.Ñ G.B. et al . , supra , 143 So. 3d

454, 458. Nothing in that language suggests that the Agency knew

its proposed rule was improper or that it was doing anythin g

intentionally wrong.

11. Rather, the language of the CourtÓs decision indicates

that Respondent was certainly attempting to exercise its

discretion properly in the adoption of the Proposed Rules.

Despite the Agency Ós attempts to justify the rules both at final

hearing and on appeal, the Court found that the Proposed Rules

did not comport with the specific authorizing statute. That

failure did not, ipso facto , establish that there was a gross

abuse of the AgencyÓs discretion. Besides, upon hearing all the

testimony and reviewing the evidence, the undersigned initially

upheld the Proposed Rule; that, in and of itself, is some

indication that the AgencyÓs efforts were legitimate. Thus, in

the present matter, there is no rational basis for finding that

g ross abuse of discretion was involved in the CourtÓs award of

attorneyÓs fees.

Section 120.569(2)(e)

12. As for section 120.569(2)(e), there is no evidence to

support PetitionersÓ contention that the proposed rule addressed

in the rule challenge procee ding (DOAH Case No. 13 - 1849RP) was

interposed for any improper purpose. The appellate court said,

Ð[W]e accept that APD is attempting to find a reasonable way to

administer funds to the tens - of - thousands of people in need that

it assists.Ñ Id. Clearly, the Agency did not act for an

improper purpose; its best efforts to follow the Legislative

mandate for an iBudget simply fell short. The Proposed Rules

contravened certain specific requirements of the governing

statute. In order to find a way to meet its mandate, the Agency

made a Herculean effort, yet failed. Although Petitioners argue

that an Ðimproper purposeÑ was implied by the Court in the Fee

Order, there is no substantive support for that position. Not

only was APDÓs attempt to find a Ðreasonable wayÑ to discharge

its responsibility found wanting by the Court, experts in the

field who testified at the underlying hearing disagreed as well.

There was no dispute about the intended purpose of the Proposed

Rules, only as to how that intent was to be e ffectuated. There

was never any dispute as to the Proposed RulesÓ intended purpose;

they were meant to find a way to serve the tens - of - thousands of

people in need.

13. There is nothing in any of the AgencyÓs actions in this

case that would be even argua bly described as Ðinterposed 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.Ñ This attorneyÓs fee section does not apply to

the facts of this case.

Sec tion 120.595(2)

14. Finally, in section 120.595(2), the Legislature has

declared that if an appellate court or administrative law judge

declares all or part of a proposed rule invalid, an order will be

entered awarding reasonable attorneyÓs fees and c osts (unless the

agency demonstrated that its actions were substantially

justified). The Court ultimately concluded that the proposed

rules Ðdirectly conflict with and contravene the LegislatureÓs

clear language.Ñ That being the case, the Court seems to be

finding that the AgencyÓs actions -- promulgating the Proposed

Rules -- was not substantially justified, even if the Court did

recognize the difficulty faced by APD in its efforts to comply

with the statutes at issue.

15. By process of elimination, secti on 120.595(2) is the

basis for the CourtÓs award of attorneyÓs fees in the present

case. That being so, the award is capped at $50,000.

16. The Agency has conceded that Petitioners are entitled

to at least $50,000 in fees, as well as costs in the amount of

$41,609.65.

17. There remains the issue of whether each of the four

Petitioners is entitled to an award of the maximum fee. In their

(singular) Petition for Administrative Determination of the

Invalidity of Proposed Rules, the parties sought the follo wing

relief:

That a Final Order be entered finding the

Proposed Rules to be an invalid exercise of

delegated legislative authority; and

That Petitioners be awarded their reasonable

attorneyÓs fees; and

Such other relief as the Administrative Law

Judge de ems appropriate.

18. That is, the relief sought by each of the Petitioners

was the same: invalidation of the proposed rules. It cannot be

argued that each Petitioner in his or her own right was seeking

individual redress or damages. Collectively, they wanted the

proposed rules invalidated so that they could return to the

status quo concerning their benefits from the State. In fact,

only one of the four Petitioners presented testimony at the

underlying administrative hearing as to the impact of the

Pro posed Rules. There was no issue as to each PetitionerÓs

standing in the underlying administrative hearing. As stated by

the Agency in its Proposed Final Order in that case:

ÐPetitioners are each recipients of Medicaid Services under the

DD waiver progra m and have been or will be transitioned to the

iBudget system. Stip., pp. 23 - 24. Thus, Petitioners have

standing to challenge the substance of the Proposed Rules.Ñ

19. Petitioners contend that each of the 25,000 - plus

recipients of benefits from the Ag ency could have filed petitions

challenging the Proposed Rule. That is true. But in the rule

challenge proceeding there were four petitioners (ostensibly

representing those other 25,000), each seeking the same relief,

i.e., invalidation of the proposed r ules. And only one of those,

K.L., testified at final hearing in the underlying rule challenge

proceeding. Thus, there is no justification for an award of fees

to each of the Petitioners under s ection 120.595(2).

20. In light of the findings and concl usions above, and

based upon the Order as stated below, the issue of contingency

multipliers is not relevant to the discussion of fees herein.

21. As a general rule in Florida, fees and costs incurred

in litigating entitlement to attorneyÓs fees are col lectible

although time spent litigating the amount of the award is not

compensable. See , e.g. , State Farm Fire & Cas. Co. v. Parma , 629

So. 2d 830, 833 (1993). § 92.931, Fla. Stat.; Stokus v.

Phillips , 651 So. 2d 1244 (Fla. 2d DCA 1995). Inasmuch as the

Agency does not dispute entitlement to attorneyÓs fees, no fees

for the fee case are warranted.

22. The amount of fees sought in this administrative rule

challenge by the Petitioners is, as set forth in their Proposed

Final Order: $255,614.39 for the D OAH rule challenge proceeding;

$154,662.35 for the appeal but also applied a contingent

multiplier for a total of $309,324.70; $62,850.00 for the fee

case but also applied a contingent multiplier for a total of

$94,275.00; and $41,609.65 in taxable costs, for a total of

approximately $660,000.00. While the amount of fees and costs

allowed under the appropriate statute is well less than what

Petitioners sought, it has been deemed legally sufficient by

statute.

ORDER

Based on the foregoing Findings o f Fact and Conclusions of

Law, it is

ORDERED that the Agency for Persons with Disabilities pay to

Petitioners the sum of Fifty Thousand Dollars ($50,000) in

attorneyÓs fees and Forty - one Thousand Dollars ($41,000) in

taxable costs.

DONE AND ORDERED this 2 4th day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of March , 2015 .

ENDNOTE

1/ This effort at defining gross abuse of discretion relies

entirely upon the plain meani ng of the phrase as generally -- but

not specifically -- expressed by various courts.

COPIES FURNISHED:

Karl David Acuff, Esquire

Law Office of Karl David Acuff, P.A.

Suite 2

1615 Village Square Boulevard

Tallahassee, Florida 32309 - 2770

(eServed)

R ichard Ditschler, Esquire

Brian McGrail, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

David Yon, Esquire

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

301 South Bronough Stre et , Suite 200

Tallahassee, Florida 32301

(eServed)

Gigi Rollini, Esquire

Thomas M. Findley, Esquire

Thomas Bateman, Esquire

Ellery Sedgwick, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Barbara Palmer, Exec utive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

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 f iling 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.