17-001884GM James Anderson vs. City Of St. Pete Beach Status: Closed DOAH Final Order on Tuesday, February 20, 2018.

Summary: City failed to demonstrate that the initial pleading in this case was filed for an improper purpose. Request for sanctions denied.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES ANDERSON,

Petitioner,

vs. Case No. 17 - 1884GM

CITY OF ST. PETE BEACH,

Respondent,

and

RIA - BRECKENRIDGE, INC.; RIA -

CORAL REEF, INC.; RIA - SANDPIPER,

INC.; RIA - TRADEWINDS, INC.; AND

RESORT INNS OF AMER ICA, INC.,

Intervenors.

_______________________________/

FINAL ORDER

This cause is before the undersigned on the City's Renewed

Motion for Attorney's Fees and Costs (Renewed Motion) pursuant

to section 163.3184(9), Florida Statutes. The City contends

that Petitioner's initial pleading in this case is not a "good

faith filing" and was intended to cause unnecessary delay and to

increase the City's cost of litigation. In lieu of an

evidentiary hearing, the City and Petitione r have agreed that

the existing record and legal argument previously submitted are

sufficient to determine whether an appropriate sanction, if any,

should be imposed against Petitioner.

The following facts are drawn from the existing record. On

Februar y 27, 2017, the City adopted Ordinance No. 2017 - 03, which

amends the Capital Improvements Element of the Comprehensive

Plan (Plan). The amendment removes the outdated 2010 through

2015 version of the Capital Improvement Schedule. This

Ordinance was adopt ed as a part of the plan amendment process

and is subject to an in compliance challenge.

On the same date, the City adopted Ordinance No. 2016 - 23,

which adopts an updated Capital Improvement Schedule. The

ordinance was adopted outside of the plan amendme nt process

pursuant to section 163.3177(3)(b), which provides in part that

"modifications to update the 5 - year capital improvement schedule

may be accomplished by ordinance and may not be deemed to be

amendments to the local comprehensive plan." Because t he new

schedule is not deemed to be an amendment to the Plan, it is not

subject to an in compliance challenge. Presumably, a challenge

to this type of ordinance must be pursued in circuit court.

On March 24, 2017, Petitioner, through his counsel, filed

his Petition for Formal Administrative Hearing (Petition)

challenging Ordinance No. 2017 - 03. He alleges 1) the amended

Capital Improvements Element does not include all components

required by section 163.3177(3)(a)2., 4., and 5.; and 2) the new

amendments are internally inconsistent with other Plan

provisions because the Plan no longer contains a Capital

Improvement Schedule. These allegations are based on the

premise that the City's updated Capital Improvement Schedule is

located in a separate ordinance rather than in the Plan itself.

According to Petitioner, the schedule must be updated through

the regular comprehensive plan amendment process, and not by

separate ordinance, in order for the Capital Improvements

Element to be in compliance. The issue of how to properly

construe the statute is one of first impression.

During his deposition, Petitioner could not recall whether

he read the Petition before it was filed. He also testified

that the allegations in the Petition were based on facts

supplied b y his counsel.

After determining that no material facts were in dispute,

on August 29, 2017, the undersigned issued a Recommended Order,

which concluded that Petitioner's argument was specious and

produces a result that would render the statute a nullity. It

would mean the process in section 163.3177(3)(b) could never be

used by a local government because this would result in a

Capital Improvements Element lacking all required components.

Accordingly, the City's interpretation of the law was determined

t o be more reasonable than Petitioner's. The plan amendment was

determined to be in compliance, and jurisdiction was retained

for the limited purpose of considering the City's Motion for

Attorney's Fees and Costs.

On November 27, 2017, the Department of E conomic

Opportunity (DEO) issued a Final Order. With minor exceptions,

the Final Order adopted the Recommended Order and determined the

plan amendment was in compliance. Notably, DEO concluded that

Petitioner's interpretation of section 163.3177(3)(b) wa s not as

reasonable, or more reasonable than, the undersigned's

interpretation of the law.

Section 163.3184(9) provides as follows:

(9) The signature of an attorney or party

constitutes a certificate that he or she has

read the pleading, motion, or oth er paper

and that, to the best of his or her

knowledge, information, and belief formed

after reasonable inquiry, it is not

interposed for any improper purpose, such as

to harass or to cause unnecessary delay, or

for economic advantage, competitive reasons,

or frivolous purposes or needless increase

in the cost of litigation. If a pleading,

motion, or other paper is signed in

violation of these requirements, the

administrative law judge, upon motion or his

or her own initiative, shall impose upon the

person who signed it, a represented party,

or both, an appropriate sanction, which may

include an order to pay the other party or

parties the amount of reasonable expenses

incurred because of the filing of the

pleading, motion, or other paper, including

a reason able attorney's fee.

Except for including "economic advantage" and "competitive

reasons" as examples of a pleading that is interposed for

an improper purpose, the statute is almost identical to

section 120.569(2)(e). Thus, section 163.3184(9) may be

construed in the same manner as section 120.569(2)(e).

As the proponent of sanctions, the City has the burden of

showing that the signer of the Petition lacked reasonable

justification for doing so. See, e.g. , Friends of Nassau Cnty.,

Inc. v. Nassa u Cnty. , 752 So. 2d 42, 51 (Fla. 1st DCA 2000).

The statute is "aimed at deterrence, not fee shifting or

compensating the prevailing party." Dep't of Health & Rehab.

Servs. v. S.G. , 613 So. 2d 1380, 1384 (Fla. 1st DCA 1993). The

focus of a claim under s ection 163.3184(9) is whether there was

a reasonably clear justification for filing the Petition, and

not on the weakness or strength of Petitioner's allegations.

Thus, "[t]he key to invoking [sanctions] is the nature of the

conduct of counsel and the par ties, and not the outcome."

Mercedes Lighting & Elec. Supply, Inc. v. State, Dep't of Gen.

Servs. , 560 So. 2d 272, 276 (Fla. 1st DCA 1990).

An objective standard is used to determine whether a

pleading was filed for an improper purpose. Friends of Nassa u ,

752 So. 2d at 51. The determination must be based on an

objective evaluation of the circumstances existing at the time

the Petition was filed. The inquiry here is whether counsel

reasonably could have concluded that a justiciable controversy

existed u nder pertinent statutes. Mercedes , 560 So. 2d at 276.

One way to decide the question is to determine whether "the

pleading . . . was based on a plausible view of the law." Id.

Although the City presented evidence that Petitioner relied

on facts provide d by his counsel in the preparation of the

pleading, and he made no independent inquiry on his own, there

is no direct evidence indicating the type or extent of the

inquiry made by counsel prior to signing the Petition.

Based on an objective evaluation of the circumstances

existing at the time the Petition was filed, the undersigned

concludes that the initial pleading is a good faith filing and

was not made for an improper purpose under section 163.3184(9).

The Petition raised a novel question of law not previously

addressed in any administrative decision. It was not

unreasonable for counsel to conclude that the Petition presented

a plausible view of the law, a justiciable controversy existed

under pertinent statutes, and there was a reasonably clear

just ification to proceed. The Renewed Motion is denied.

Finally, a party seeking sanctions should give notice

promptly to this tribunal and the offending party upon

discovering a basis to do so. Mercedes , 560 So. 2d at 277.

Here, even though the City knew, or should have known, that the

principal basis of the Petition boiled down to whether

Petitioner's interpretation of the statute was plausible, it

waited for three months before seeking sanctions. A delay in

seeking sanctions also militates against grant ing the Renewed

Motion. See, e.g. , Spanish Oaks of Cent. Fla., LLC v. Lake

Region Audubon Soc'y, Inc. , Ca se No. 05 - 4644F (Fla. DOAH July 7,

2006). It is, therefore,

ORDERED that the City's Renewed Motion for Attorney's Fees

and Costs pursuant to section 163.3184(9) is denied.

DONE AND ORDERED this 20th day of February , 2018 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee 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 20th day of February , 2018 .

COPIES FURNISHED:

Andrew W. J. Dickman, Esquire

Dickman Law Firm

Post Office Box 771390

Naples, Florida 34107 - 1390

(eServed)

Timothy W. Weber, Esquire

Weber, Crabb & Wein, P.A.

5999 Central Avenue , Suite 203

St. Petersburg, Florida 33710

(eServed)

Michael Oscar Sznapstajler, Esquire

Cobb Cole, P.A.

149 South Ridgewood Avenue , Suite 700

Daytona Beach, Florida 32114

(eServed)

Kelly V. Parsons, Esquire

Cobb & Cole, P.A.

149 South Ridgewood Avenue , Suite 700

Daytona Beach, Florida 32114

(eServed)

Scott A. McLaren, Esquire

Hill Ward Henderson PA

101 East Kennedy Boulevard , Suite 3700

Tampa, Florida 33602

(eServed)

Cissy Proctor, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Peter Penrod, General Counsel

De partment of Economic Opportunity

Caldwell Building , MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Stephanie Chatham, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florid a 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 Appel late 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, accom panied 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.