15-004332FC Department Of Economic Opportunity vs. Martin County Conservation Alliance And 1000 Friends Of Florida, Inc. Status: Closed DOAH Final Order on Wednesday, February 17, 2016.

Summary: The Department of Economic Opportunity's reasonable attorney's fees on the appeal are $1,800.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ECONOMIC

OPPORTUNITY,

Petitioner,

vs. Case No. 15 - 4332FC

MARTIN COUNTY CONSERVATION

ALLIANCE AND 1000 FRIENDS OF

FLORIDA, INC.,

Respondents.

_______________________________/

FINAL ORDER

The final hearing in this case was held November 10, 2015,

by video teleconference at sites in Tallahassee and West Palm

Beach, Florida, before Bram D.E. Canter, Administrative Law Judge

of the Division of Administrative Hearings ( ÐDOAHÑ).

APPEARANCES

For Petitioner: Christina Arzillo Shideler, Esquire

Department of Economic Opportunity

107 East Madison Street, MSC 110

Tallahassee, Florida 32399

For Respondent: R ichard Grosso, Esquire

Shepard Broad Law Center

Nova Southeastern University

3305 College Avenue

Fort Lauderdale, Florida 33314

STATEMENT OF THE ISSUE

The issue to be determined in this case is the amount of

reasonable attorneyÓs fees to be paid to the Department of

Economic Opportunity (ÐDEOÑ) by Respondents.

PRELIMINARY STATEMENT

On November 4, 2011, the First District Court of Appeal

issued an order awarding atto rneyÓs fees to the appellees in

Martin County Conservation Alliance v. Martin County , 73 So. 3d

856 (Fla. 1st DCA 2011). DEO is the successor agency to the

Department of Community Affairs, which was one of the appellees

in the case. Respondents were the appellants and the losing

parties on appeal.

The parties were not able to reach agreement on the amount

of attorneyÓs fees that should be paid. On July 28, 2015, DEO

requested that an Administrative Law Judge be assigned to

determine the amount.

At the final hearing, DEO presented the testimony of

Joseph Goldstein, L. Mary Thomas, and Richard Shine. DEO

Exhibits 1 - 3 and 6 - 7 were admitted into evidence. Respondents

called no witnesses. RespondentsÓ Exhibits 1 - 4 were admitted

into evidence.

The Transcr ipt of the final hearing was filed with DOAH and

the parties submitted Proposed Final Orders that were considered

in the preparation of this Final Order.

FINDINGS OF FACT

1. Ms. Thomas and Mr. Shine were the agency attorneys who

worked on the appeal.

2. Ms. Thomas reviewed the record on appeal, reviewed the

papers filed in the appellate court, filed a notice of

appearance, researched legal issues associated with the agencyÓs

Notice of Limited Joinder in Answer Brief, and discussed the case

with other at torneys. Ms. Thomas spent seven hours working on

the case.

3. Mr. Shine reviewed the record on appeal, reviewed the

papers filed in the appellate court, filed a notice of

appearance, researched legal issues associated with the agencyÓs

answer brief, and discussed the case with other attorneys.

Mr. Shine spent six hours working on the case.

4. Ms. Thomas and Mr. Shine did not file a brief or

participate in oral argument.

5. DEO is demanding payment of $3 , 900 as the total of its

reasonable attorneyÓs f ees, which was computed by multiplying 13

hours by an hourly rate of $300.

6. As discussed in the Conclusions of Law, the criteria

listed in Rule 4 - 1.5 of the Rules Regulating the Florida Bar must

be used to determine the reasonable attorneyÓs fees in th is case.

Rule 4 - 1.5(b)(1)A

7. The criterion in Rule 4 - 1.5(b)(1)A is Ðthe time and

labor required, the novelty, complexity, and difficulty of the

questions involved, and the skill requisite to perform the legal

service properly.Ñ The legal work was not complex, but it

required specialized skill in land use law.

8. DEO claims the standing issue in the case on appeal was

complex. To the contrary, the First District Court of Appeal

awarded attorneyÓs fees to the appellees because the court

determined th at appellants and their counsel knew or should have

known that no material facts provided a basis for RespondentÓs

standing. Likewise, the agencyÓs counsel knew or should have

known.

9. The evidence presented did not show that the labor of

both Ms. Thom as and Mr. Shine was required. Their work was, in

large part, redundant. Furthermore, Ms. Thomas had only a vague

recollection of much of her work. T he work of Mr. Shine, alone,

would have been sufficient to accomplish the agencyÓs purposes

and efforts in the appeal.

Rule 4 - 1.5(b)(1)B

10. The criterion in Rule 4 - 1.5(b)(1)B is Ðthe likelihood

that the acceptance of the particular employment will preclude

other employment by the lawyer.Ñ There was no evidence presented

regarding this criterion to be con sidered in determining

reasonable fees.

Rule 4 - 1.5(b)(1)C

11. The criterion in Rule 4 - 1.5(b)(1)C is Ðthe fee, or

rate of fee, customarily charged in the locality for legal

services of similar nature.Ñ DEO presented the testimony of

Joseph Goldstein, a l and use lawyer who practices in the Miami

offices of the law firm of Holland and Knight. It was

Mr. GoldsteinÓs opinion that the customary hourly rate in the

Tallahassee area at the relevant time was $300. 1/

12. Respondents did not present expert testimo ny to refute

Mr. GoldsteinÓs opinion. There is no other evidence in the

record regarding a reasonable hourly rate.

Rule 4 - 1.5(b)(1)D

13. The criterion in Rule 4 - 1.5(b)(1)D is Ðthe significance

of, or amount involved in, the subject matter of the

represen tation, the responsibility involved in the

representation, and the results obtained.Ñ The case on appeal

had moderate significance and the responsibility involved was

moderate. The results obtained were not unusual.

14. The novelty in the appellate cas e was the award of

attorneyÓs fees, but the agency attorneys had nothing to do with

the award. In fact, they opposed the award.

Rule 4 - 1.5(b)(1)E

15. The criterion in Rule 4 - 1.5(b)(1)E is Ðthe time

limitations imposed by the client or by the circumstan ces and, as

between attorney and client, any additional time demands or

requests of the attorney by the client.Ñ There was no evidence

presented regarding this criterion that should be considered in

determining reasonable fees.

Rule 4 - 1.5(b)(1)F

16. The criterion in Rule 4 - 1.5(b)(1)F is Ðthe nature and

length of the professional relationship with the client.Ñ There

was no evidence presented regarding this criterion to be

considered in determining reasonable fees.

Rule 4 - 1.5(b)(1)G

17. The criterion in Rule 4 - 1.5(b)(1)G is Ðthe experience,

reputation, diligence, and ability of the lawyer or lawyers

performing the service and the skill, expertise, or efficiency of

the effort reflected in the actual providing of such service.Ñ

The agency lawyers had spec ialized skill in land use law, but the

case did not require unusual diligence or effort.

Rule 4 - 1.5(b)(1)H

18. The criterion in Rule 4 - 1.5(b)(1)H is Ðwhether the fee

is fixed or contingent, and, if fixed as to amount or rate,

whether the clientÓs ability to pay rested to any significant

degree on the outcome of the representation.Ñ The fee was fixed

because it was based on fixed salaries, but it did not rest on

the outcome of the appeal.

CONCLUSIONS OF LAW

19. DEO has the burden to prove the amount of reasonable

attorneyÓs fees it is due. See Fla. PatientÓs Compensation Fund

v. Rowe , 472 So. 2d 1145 (Fla. 1985).

20. Findings of fact must be based on a preponderance of

the evidence. See § 120.57(1)(j), Fla. Stat. (2015)

21. In Rowe , supra , it was h eld that the criteria listed in

Rule 4 - 1.5 of the Rules Regulating the Florida Bar should be used

to determine reasonable attorneyÓs fees. Id. at 1151.

22. In determining the hours reasonably expended in

providing legal service, the court must look to t he time that

ordinarily would be spent to resolve the particular type of

dispute, which is not necessarily the number of hours actually

expended by counsel in the case. See In re Estate of Platt , 586

So. 2d 328, 333 - 34 (Fla. 1991).

23. Based on the evidence presented, six hours is a

reasonable amount of time for the agencyÓ s participation in the

appeal.

24. Respondents argue that reasonable attorneyÓs fees

cannot be determined in this case because DEO did not produce

billing records. They cite cases regarding the sufficiency of

billing records of private sector attorneys w ho billed by the

hour and sent out invoices to their clients. The agency lawyers

in this case did not bill by the hour, keep billing records, or

send out invoices. Their testimony about the hours expended and

the nature of the case was sufficient to dete rmine that six hours

is a reasonable amount of time.

25. Multiplying six hours of attorney time by a rate of

$300 per hour produces a total of $1,800 in attorneyÓs fees.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

OR DERED that the Department of Economic OpportunityÓs

reasonable attorney Ó s fee s are determined to be $1,800.

DONE AND ORDERED this 17th day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Admin istrative 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 Hearin gs

this 17th day of February , 2016 .

ENDNOTE

1/ No party addressed the propriety of applying private sector

hourly rates to public sector attorneys.

COPIES FURNISHED:

Richard Grosso, Esquire

Shepard Broad Law Center

Nova Southeastern University

3305 College Avenue

Fort Lauderdale, Florida 33314

(eServed)

Christina Arzillo Shideler, Esquire

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399

(eServed)

Cissy Proctor, Executive Director

D epartment of Economic Opportunity

Caldwell Building , MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

James W. Poppell, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallaha ssee, Florida 32399 - 4128

(eServed)

Katie Zimmer, Agency Clerk

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(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 admini strative 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 Ap peal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.