17-002090F Stephen J. Williams, As A Trustee For The Sparkhill Trust vs. Florida Department Of Highway Safety And Motor Vehicles Status: Closed DOAH Final Order on Friday, August 11, 2017.

Summary: Petitioner is not an "attorney" under Florida law so is not legally entitled to an award of attorney's fees for prevailing in an unadopted rule challenge under section 120.56(4). Petitioner is entitled to costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN J. WILLIAMS, AS A

TRUSTEE FOR THE SPARKHILL TRUST,

Petitioner,

vs. Case No. 17 - 2090F

FLORIDA DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES,

Respondent.

_______________________________/

FINAL ORDER

T his matter came before Cathy M. Sellers, a designated

Administrative Law Judge ( " ALJ " ) of the Division of

Administrative Hearings ( " DOAH " ) , on the Motion for Attorney ' s

Fees and Costs filed by Petitioner, Stephen J. Willia ms, as a

t rustee for the Sparkhill Trust, on April 6, 2017, seeking an

award of attorney ' s fees and costs against Respondent, Department

of Highway Safety and Motor Vehicles , pursuant to secti on

120.595(4), Florida Statutes (2016) .

APPEARANCES

For Petition er: Stephen Williams

1019 Southeast 4th Place

Cape Coral, Florida 33990 - 1521

For Respondent: Jonathan P. Sanford , Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway, Room A - 432

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issue s in this case are whether Petitioner is entitled

to an award of attorney ' s fees and /or costs, pursuant to

section 120.595(4) ; a nd , if so, the amounts of attorney's fees

and/or costs t o which he is entitled.

PRELIMINARY STATEMENT

O n March 3, 2017, the undersigned issued a n Amended Final

Order in Case No. 16 - 6127RU , determining that a portion of the

Florida Department of Highway S afety and Motor Vehicles Procedure

Manual TL - 10, dated April 30, 2014, and Technical Advisory

RS/TL 14 - 18, dated October 20, 2014 , are unadopted rules that

violate section 1 20.54(1)(a), Florida Statutes. The Amended

F inal O rder retained jurisdiction to c onduct further proceedings

as necessary to award attorney ' s fees and costs, as applicable,

pursuant to section 120.595(4) , upon the timely filing of a

motion, supported by necessary documentation, requesting an award

of attorney ' s fees and costs. Th e Amen ded Final Order was not

appealed.

O n April 6, 2017, Petitioner filed a Motion for At torney ' s

Fees and Costs ( " Motion " ), seeking an award of $86,429.73 in

attorney ' s fees and $119.73 in costs incurred in prosecuting

Case No. 16 - 6127RU .

On April 10, 2 017, the undersigned issued an Amended Order

Regarding Filing Response in Opposition and Scheduling Final

Hearing ( " Amended Order Regarding Response " ) . The Amended Order

Regarding Response gave Respondent 21 days in which to file its

response in oppositio n to the Motion , contesting Petitioner ' s

legal entitlement to attorney ' s fees and costs and disputing the

amount s of each sought by Petitioner . The Amended Order

Regarding Response stated :

Respondent's failure to file a response in

opposition disputing e ither Petitioner's

entitlement to an award of attorney's fees

and costs or the amount of attorney's fees

and costs sought by Petitioner, as set forth

in the Motion, shall be deemed to constitute

a waiver of Respondent's opportunity to

challenge the same .

Amended Order Regarding Response, p. 2, ¶ 1.

On May 1, 2017, Respondent timely filed a Response to

Petitioner ' s Motion for Attorney ' s Fees ( " Response " ). The

Response challenges Petitioner's legal entitlement to an award of

attorney's fees in this procee ding, asserting that Petitioner is

not an " attorney " for purposes of section 120. 595(4 ) . The

Response did not dispute any of the facts alleged in the Motion

or supporting documentation regarding the amount s of attorney's

fees sought in this proceeding . T he Response also did not

di spute Petitioner's legal entitlement 1 / to costs or the amount of

those costs sought in this proceeding .

Upon reviewing the Motion and Response, the undersigned

determined that t here are no dispute d issues of material fact in

th is proceeding that need to be determined through an evidentiary

hearing held under section 120.57(1) . Petitioner requested, and

was granted , leave to file a reply to Respondent's Response. On

May 31, 2017, Petitioner filed his Reply to Respondent's

[ R ] es ponse to Petitioner's Motion for Attorney's Fees ( " Reply " ) .

Based on the Motion, Response, and Reply , and having

determined that there are no disputed issues of material fact

that require a n evidentiary hearing under section 120.57(1), the

undersigned m akes the following Findings of Fact and Conclusions

of Law.

FINDINGS OF FACT

1. On March 3, 2017, DOAH entered an Amended Final Order in

Case No. 16 - 6127RU , determining that a portion of the Florida

Department of Highway Safety and Motor Vehicles Proce dure Manual

TL - 10, dated April 30, 2014, and Technical Advisory RS/TL 14 - 18,

dated October 20, 2014 (hereafter, the " Unadopted Rules " ) , are

unadopted rules that violate section 120.54(1)(a) .

2 . " Stephen J. Williams, as a Trustee for the Sparkhill

Trust, " is Petitioner in this proceeding, and also was Petitioner

in Case No. 16 - 6127RU . Petitioner appeared in Case No. 16 - 6127RU

as a trustee of the Sparkhill Trust ( " Trust " ), which holds title

to the motor vehicle for which a certificate of title was denied

b y Respondent and its agent, the Lee County Tax Collector, in

2014. As previously found in Case No. 16 - 6127RU , Petitioner also

is the beneficiary of the Trust.

3 . Petitioner is not licensed to practice law in Florida ,

and has neither alleged nor shown th at he was licensed or

otherwise authorized to practice law in Florida at any point

during the pendency of Case No. 16 - 6127RU . 2 /

4 . Petitioner received a law degree from the University of

C onnecticut School of Law and is licensed to practice law in

Conne cticut , New York , and the District of Columbia ; however, he

currently is suspended from practicing law in those

jurisdictions . Petitioner also is a lawyer on the R oll of

S olicitor s in England and Wales, but is not currently autho rized

to practice in those jurisdictions because he does not hold a

practicing certificate.

5 . Petitioner asserts in the Motion that he is an attorney

acting in a representative capacity as a trustee on behalf of the

Trust.

6 . Petitioner filed a document titled "Declaration of

Stephen J. Williams in Support of Petitioner's Motion for

Attorney's Fees and Costs" ( " Declaration " ) in support of the

Motion. Although the Declaration represents that it is made

"under penalty of perjury," it does not constitute a legally

sufficient o ath or affidavit because it does not comply with the

requirements of section 92.50(1), Florida Statutes.

S pecifically, it does not c ontain a jurat or certificate of proof

or acknowledgement authenticated by the signature and official

seal of a judge, cler k or deputy clerk of court of record in this

state, or a Unite d States commissioner or notary public in this

state, as required by the statute. 3 /

7 . Petitioner attached an itemized timesheet to the

Declaration. Th e timesheet lists , for each item for w hich

attorney's fees are sought , the date and description of the legal

service s alleged to have been rendered for the particular item ,

and the amount of time alleged to have been spent per item. The

timesheet represents that a total of 54.8 hours were spe nt in

prosecuting Case No. 16 - 6127RU .

8 . Petitioner asserts that he is entitled to a $350.00 per

hour attorney's fee, multiplied by a 1.5 loadstar multiplier, and

a contingency multiplier of three, for a total of $86,310.00 in

attorney's fees.

9 . A ttached to the Declaration i s email correspondence sent

to Petitioner by Kiara Guzzo, Respondent's Public Records

Coordinator , stating that Petitioner owed $119.73 for

Respondent's response to Petitioner's public records request. In

the Declaration, Petit ioner states that "[t]he attached email of

Guzzo email [sic] accurately indicates the out - of - pocket expenses

which have been paid."

1 0 . Pursuant to his statement in the Declaration ,

Petitioner is " exclusively engaged in the practice of law. "

1 1 . P ursuant to his statement in the Declaration,

Petitioner undertook the prosecution of Case No. 16 - 6127RU on a

contingency basis, with his attorney's fees being " limited to

that approved by this tribunal . " 4 /

1 2 . Petitioner previously challenged the Unad opted Rules in

two DOAH proceedings , Case No s . 14 - 6005 RU and 15 - 0484 RU . 5 / Thus,

a s far back as 2014, Respondent was on notice that its statements

( i.e., the Unadopted Rules) may constitute unadopted rules.

CONCLUSIONS OF LAW

1 3 . DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to sections 120.595(4),

120.569, and 120.57(1) .

1 4 . T his proceeding concerns whether Petitioner is

entitled to an award of attorney ' s fees and costs under

s ection 120.595(4) , for succe ssfully challenging the Unadopted

Rules under section 120.56(4) in Case No. 16 - 6127RU ; and, if so,

the amounts of those fees and costs to which he is entitled .

1 5 . Section 120.595(4) states:

(a) If the appellate court or administrative

law judge determ ines that all or part of an

agency statement violates s. 120.54(1)(a), or

that the agency must immediately discontinue

reliance on the statement and any

substantially similar statement pursuant to

s. 120.56(4)(e), a judgment or order shall be

entered again st the agency for reasonable

costs and reasonable attorney ' s fees unless

the agency demonstrates that the statement is

required by the Federal Government to

implement or retain a delegated or approved

program or to meet a condition to receipt of

federal fu nds.

(b ) Upon notification to the administrative

law judge provided before the final hearing

that the agency has published a notice of

rulemaking under s. 120.54(3)(a), such notice

shall automatically operate as a stay of

proceedings pending rulemaking. The

administrative law judge may vacate the stay

for good cause shown. A stay of proceedings

under this paragraph remains in effect so

long as the agency is proceeding

expeditiously and in good faith to adopt the

statement as a rule. The administrative law

judge shall award reasonable costs and

reasonable attorney ' s fees accrued by the

petitioner prior to the date the notice was

published, unless the agency proves to the

administrative law judge that it did not know

and should not have known that the sta tement

was an unadopted rule. Attorneys ' fees and

costs under this paragraph and paragraph (a)

shall be awarded only upon a finding that the

agency received notice that the statement may

constitute an unadopted rule at least 30 days

before a petition unde r s. 120.56(4) was

filed and that the agency failed to publish

the required notice of rulemaking pursuant to

s. 120.54(3) that addresses the state ment

within that 30 - day period. Notice to the

agency may be satisfied by its receipt of a

copy of the s. 120. 56(4) petition, a notice

or other paper containing substantially the

same information, or a petition filed

pursuant to s. 120.54(7). An award of

attorney ' s fees as provided by this paragraph

may not exceed $50,000.

1 6 . Here, Petitioner asserts that he is entitled to an

award of attorney's fees and costs. Because he is assert ing the

affirmative of the issue ÏÏ that is, that he is entitled to

attorney's fees and costs ÏÏ he bears the burden to demonstrate

that entitlement. Young v. Dep't of Cmty . Aff . , 625 So. 2d 831,

833 - 34 (Fla. 1993); Balino v. Dep't of HRS , 348 So. 2d 349, 350

(Fla. 1st DCA 1977) ; see Envtlust v. Dep't of Envtl. Prot. ,

714 So. 2d 493, 497 (Fla. 1st DCA 1998) ( party who asserts a

disputed claim before an administrative agency bears the burden

of establishing the basis for the claim).

1 7 . For the reasons discussed below, it is concluded that

Petitioner is not entitled to an award of attorney's fees in this

proceeding for having prevailed in Case No. 16 - 6127RU .

1 8 . For the reasons discussed below, it is concluded that

Petitioner is entitled to recover $119.73 in costs incurred in

prosecuting Case No. 16 - 6127RU .

Petitioner is not Entitled to an Award of Attorney's Fees

19 . Florida courts strictly construe statutes allowing

attorney 's fees ; this is because under Florida law, statutes

awarding attorney's fees are viewed as in derogation of common

law. Ag . for Health Care Admin . v. HHCI Ltd. P'ship , 865 So. 2d

593, 595 (Fla. 1st DCA 2004).

20 . The term " attorney " is not defined in c hapter 120.

Therefore, it is necessary to turn to other applicable legal

authority addressing what it means to be an " attorney " under

Florida law.

2 1 . Chapter 454, Florida Statutes, addresses attorneys

at law practicing in Florida. Section 454.021(1) states:

" [a]dmissions of attorneys and counselors to practice law in

the state is hereby declar ed to be a judicial function."

S ection 454.021(2) , in pertinent part , states : " [t] he Supreme

Court of Florida [ ( hereafter " Florida Supreme Court " ) ] , being the

highest court of said state , is the proper court to govern and

regulate admissions of attorneys and counselors to practice law

in said state."

2 2 . Additionally, a rticle V, section 15 of the Florida

Constitution , vests the Florida Supreme Court with the exclusive

jurisdiction to regulate the admission of persons to the practice

of law in Florida.

2 3 . To implement its exclusive constitutionally - conferred

(and l egislatively - recognized ) jurisdiction over the practice of

law in Florida, t he Florida Sup reme Court has adopted The Rules

Regulating the Florida Ba r ( " Bar Rules " ) . These rules govern

both the licensed and unlicensed practice of law in Florida . 6 /

2 4 . Rule 10 - 2.1 (c) of the Bar Rules states in pertinent

part : " [A] non [ - ] lawyer or non [ - ] atto rney is an individual who

is not a member of the Florida Bar . This includes, but is not

limited to lawyers admitted in other jurisdictions ."

R. Regulating Fla. Bar 10 - 2.1 (c) (emphasis added).

2 5 . Consonant with this rule , Florida courts consistently

held that attorneys who are not licensed to practice law in

Florida ÏÏ even if admitted to practice law in other jurisdictions

ÏÏ are considered " non - attorneys " under Florida law , and, as such ,

are not entitled to attorney's fees awards .

2 6 . In Chandris, S.A. v. Yanakakis , 668 So. 2d 180 (Fla.

1995), the Florida Supreme Court determined that a lawyer who was

admitted to practice law in Massachusetts , but not in Florida ,

was not an "attorney" under Florida law . Therefore, he was not

entitled to recover att orney's fees u nder a contingency fee

agreement for legal services he had provided in Florida . 7 /

Similarly, i n Morrison v. West , 30 So. 3d 561 (Fla. 4th DCA

2010) , and Vista Design, Inc. v. Silverman , 774 So. 2d 884

(Fla. 4th DCA 2001), the court determin ed that attorney s licensed

to practice law in other jurisdictions but who were not licensed

in Florida were not " attorney s " under Florida law , so were not

entitled to attorney's fees .

2 7 . The decision in Department of Insurance v. Florida

Bankers Ass oci ation , 764 So. 2d 660 (Fla. 1st DCA 2000) , controls

in this proceeding. In that case, a non - attorney successfully

represented a party in a proposed rule challenge proceeding under

section 120.56(2). In denying an award of attorney's fees under

section 12 0.595 (2) , the court held that a party represented by a

non - attorney 8/ in a n administrative proceeding before DOAH was not

entitled to an award of attorney's fees under section 120.595(2).

In so holding, the court interpreted the statute to exclude non -

atto rneys from those entitled to attorney's fees under section

120.595. The court stated: " [n]othing in section 120.595(2) [ 9/ ]

authorizes the award of attorney's fees to non - attorneys . " Id.

at 663 ( quoting Nicoll v. Baker , 668 So. 2d 989, 990 - 91 (Fla.

1996 ) ) . In this case, e ven though Petitioner is licensed to

practice law in jurisdictions other than in Florida, pursuant to

the above - cited authority, he is a non - attorney under Florida

law , so is in the same position as the non - attorney

r epresentative in Flo rida Bankers Association to whom an award of

fees was denied. Under Florida Bankers Association , Petitioner

is not entitled to an award of attorney's fees in this

p roceeding.

2 8 . DOAH precedent also supports the denial of attorney's

fees to Petitioner in this proceeding. In Galloway v. G -

Force/Wackenhut Corp. , Case No. 11 - 4558 (Fla. DOAH May 22, 2013;

FCHR Aug. 19, 2013), an attorney licensed in Alabama , but not in

Florida , appeared as a qualified representative on behalf of the

petitioner in an emplo yment discrimination case . After

prevailing on the merits in the discrimination case, the

petitioner sought an award of attorney's fees for the legal

services rendered by his attorney in the proceeding. T he ALJ

concluded that the petitioner was not entit led to an award of

attorney's fees because his attorney , even though licensed in

another state, was not licensed or otherwise authori zed to

practice law in Florida. 10/

29 . The key point gleaned from the case law discussed above

is that under Florida la w, attorneys who are not licensed or

otherwise authorized to practice law in Florida are considered

" non - attorneys " who are not entitled to awards of attorney's

fees .

3 0 . Here, Petitioner asserts that he is entitled to an

award of attorney's fees becau se he is licensed to practice law

in other jurisdictions. Motion, pp. 3 - 4. He further contends

that Respondent confuses " 'attorneys' fees' with [']attorneys['] "

and that " attorneys' fees " is a " legal term of art " that " does

not contain any of the limits, geographic or otherwise, proffered

by Respondent . " Reply, p. 4. H e thus argues that he is not

subject to Florida's " court and bar " rules . Notably, he does not

cite any legal authority that supports these contentions.

3 1 . Petitioner's position is reje cted. The applicable

statutory and case law discussed above makes clear that under

Florida law, attorneys who are not admitted or otherwise

authorized to practice law in Florida are considered non -

attorneys who are not entitled to attorney's fees awards.

Stated another way, an attorney is only engaged in the authorized

practice of law in Florida, for purposes of being entitled to

attorney's fees under Florida law, if he or she is a member of

the Florida Bar or is otherwise authorized to do so under the

a pplicable exceptions to the Florida Bar licensure requirement.

As previously discussed, Petitioner is not licensed to practice

law in Florida and has not established that he is otherwise

authorized to practice law in Florida under any applicable

exception to Florida Bar licensure. 11/ Accordingly, he is not an

"attorney" under Florida law, so is not entitled to an award of

attorney's fees in this proceeding.

3 2 . Based on the foregoing , it is concluded that Petitioner

is not entitled to an award of attor ney's fees in this

proceeding.

Petitioner is Entitled to an Award of Costs

3 3 . Petitioner submitted , as part of the document ary

support for the Motion, email correspondence from Respondent's

agency clerk informing Petitioner that it would cost

approxima tely $119.73 to respond to Petitioner's public records

request filed with Respondent in connection with Case No. 16 -

6127RU . The email provided an address to which a check or money

order for that amount should be sent.

3 4 . Petitioner did not provide a receipt, copy of a

cancelled check, image of a money order , or any other document to

show that he did, in fact, pay that amount to Respondent for the

records requested. However, he alleged in the Motion that he

incurred $119.73 in costs, and he stated in the Declaration that

" the attached email of Guzzo email accurately indicates out - of -

pocket expenses which have been paid." As noted above,

Respondent did not dispute Petitioner's legal entitlement to, or

the amount of, the costs Petitioner seeks in this p roceeding.

3 5 . B ecause Respondent did not dispute any of the facts

alleged in the Motion or Declaration regarding Petitioner's

entitlement to costs or the amount of those costs, th ose costs

are not in dispute in this proceeding.

3 6 . Therefore , it is co ncluded that Petitioner is entitled

to an award of $119.73 in costs incurred for public records

obtained from Respondent in connection with prosecuting Case

No. 16 - 6127RU .

D OAH Lacks Jurisdiction to Enforce the Amended Final Order

3 7 . As noted above , se ction 120.56(4) state s in part :

" [i] f an administrative law judge enters a final order that all

or part of an unadopted rule violates s. 120.54(1)(a), the agency

must immediately discontinue all reliance upon the unadopted rule

or any substantially simila r statement as a basis for agency

action. " § 120.56(4)(e), Fla. Stat. (emphasis added).

3 8 . Petitioner alleges in his Reply that Respondent

continues to enforce the Unadopted Rules , notwithstanding that

the Amended Final Order issued in Case No. 16 - 6127 RU determined

that the challenged statements were unadopted rules that violated

section 120.54(1)(a) , and that section 120.56(4) (e) mandates that

Respondent immediately discontinue all reliance on them.

Peti tioner contends that as a result of its noncompli ance with

this statutory directive, Respondent has " forfeited its right to

be heard in this tribunal ; " as a remedy , Petitioner requests that

the Response filed in this proceeding be stricken .

39 . The undersigned declines to strike the Respon se because

chapter 120 does not authorize DOAH to impose sanctions on an

agency to enforc e a DOAH final order. Rather, j urisdiction to

enforce agency action lies in the circuit courts of this state,

pursuant to section 120.69.

4 0 . S ection 120.69, titled " Enforc ement of agency action, "

authorizes the circuit courts in this state to enforce " any

agency actio n" ÏÏ which would include the Amended Final Order

issued in Case No. 16 - 6127RU . This remedy is available through

an action brought in circuit court by " any subs tantially

interested person who is a resident of the state. " §

120.69(1)(b) , Fla. Stat . Sections 120.69(1) and (2) address the

procedural and substantive requirements of, as well as the relief

available under, actions brought under section 120.69.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby ORDERED that :

1. Petitioner is not entitled to an award of attorney 's

fees pursuant to section 120.595(4) .

2. Petitioner is entitled to an award of $119.73 in costs

incurre d in prosecuting Case No. 16 - 6127RU .

DONE AND ORDERED this 10th day of August , 2017, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 10th day of August, 2017.

ENDNOTES

1/ In its Response, Respo ndent requests the undersigned to deny

"any entitlement Petitioner has to attorney's fees as well as any

amount associated with those fees." To the extent that this

statement could be read to request denial of costs ÏÏ which is not

at all clear ÏÏ Respondent' s entire argument is devoted to arguing

that Petitioner is not legally entitled to attorney's fees; the

Response simply does not address Petitioner's legal entitlement to

costs. Furthermore, as discussed below, Respondent has not

disputed the amounts of t he attorney's fees and costs sought by

Petitioner ÏÏ only Petitioner's legal entitlement thereto. As

discussed above, Respondent was advised in the Amended Order

Regarding Response issued in this proceeding on April 10, 2017,

that failure to dispute Petitio ner's entitlement to an award of

attorney's fees and costs, or the amounts of attorney's fees and

costs, would constitute a waiver of Respondent's opportunity to

challenge the same.

2/ Petitioner was not admitted pro hac vice as an attorney in

Case No. 16 - 6127RU . See note 11 , infra .

3/ The Declaration states that "under penalty of perjury" the

statements therein are "true." However, there is no indication

that the Declaration ÏÏ which apparently is intended to suffice as

an affidavit ÏÏ was taken or adm inistered by or before any judge,

clerk or deputy clerk of court of record within Florida, or before

any United States c ommissioner or notary public in Florida, and it

did not contain a jurat or certificate of proof or acknowledgement

authenticated by a si gnature and official seal of such officer or

person, as required by section 92.50(1). Accordingly, the

Declaration does not constitute an affidavit under Florida law.

However, as previously noted, Respondent did not dispute any of

the facts alleged in th e Motion or the Declaration; therefore, the

facts alleged in the Motion and the Declaration are undisputed in

this proceeding.

4/ Petitioner asserts that the trustees of the Trust "jointly

agreed" to the contingency fee arrangement. However, a written

copy of such contingency fee agreement was not included in the

documents filed in support of the Motion. Rule 4 - 1.5(f)(1) of the

Rules Regulating the Florida Bar Rules states in pertinent part:

"[a] contingent fee agreement shall be in writing." Althoug h

neither the validity nor the enforcement of the contingency

agreement is at issue in this proceeding, it is noted that to the

extent a contingency fee agreement between Petitioner and the

Trust exists, no information was provided to show that it meets

th is requirement.

5/ Both cases ultimately were dismissed on grounds that did not

reach the substantive merits of Petitioner's challenges to the

Unadopted Rules under section 120.56(4).

6/ In The Florida Bar v. Sperry , 140 So. 2d 587 (Fla. 1962),

vacated on other grounds , Sperry v. Florida , 373 U.S. 379 (1963),

the Florida Supreme Court concluded that the court's

constitutional authority to regulate the practice of law in

Florida "also carries with it the power to prevent the practice of

law by those who are not admitted to the practice." Id. at 588.

To that end, Rule 10 - 2.1(a) defines the "unlicensed practice of

law" as "the practice of law, as prohibited by statute, court

rule, and case law of the state of Florida."

7/ In Chandris , the court observe d that Florida has a unified

bar, the purpose of which is to protect the public, and that by

statute, the rendition of legal services by an attorney not

admitted to practice law in Florida is illegal. See § 454.23,

Fla. Stat. ("a ny person not licensed or otherwise authorized to

practice law in this state who practices law in this state . . .

commits a felony in the third degree.") Thus, the court reasoned

that awarding attorney's fees would reward illegal activities, in

violation of public policy. Id. at 185. The court noted that

there are limited exceptions to the requirement that persons

engaged in the practice of law in Florida must be licensed in

Florida. Those exceptions are: (1) that the lawyer participate

as co - counsel in litigation before state and federal courts in

Florida only to the extent permitted by applicable rules of

temporary admission; (2) transitory professional activities

"incidental" to essentially out - of - state transactions; (3) and

professional activities that constitute "coordinat ing - supervisory"

activities in essentially multistate transactions in which matters

of Florida law are being handled by members of the Florida Bar.

Id. at 184 ( citing Florida Bar v. Savitt , 363 So. 2d 559 (Fla.

1978) ) . Here, Petitioner has not alleged or shown that any of

these exceptions apply to his representation of the Trust in Case

No. 16 - 6127RU . Furthermore, as noted above, Petitioner was not

admitted pro hac vice in this proceeding.

8/ In Florida Bankers Association , the non - attorney

representa tive was not admitted to practice law in Florida

or in any other jurisdiction, and had appeared as a qualified

representative in the rule challenge proceeding, pursuant to

Florida Administrative Code Rule 28 - 106.106(1), which states:

"[a]ny party who app ears in any agency proceeding has the right,

at his or her own expense, to be represented by counsel or a

qualified representative. Counsel means a member of the Florida

Bar or law students certified pursuant to chapter 11 of the [Bar

Rules]."

9/ Altho ugh Florida Bankers Association involved a fees award

under section 120.595(2) rather than under 120.595(4), the term

"attorney's fees , " as used in section 120.595 , has the same

meaning regardless of which subsection in which it appears. See

Nat'l Auto Se rvs. Ctrs. v. F/R 550, LLC , 192 So. 3d 498 (Fla. 2d

DCA 2016)(the same meaning should be given to the same term within

subsections of the same statute); see State v. Hearns , 961 So. 2d

211, 217 (Fla. 2007)(where the Legislature uses the exact same

word in different statutory provisions, it is assumed that the

same meaning is intended to apply). As discussed, the court in

Florida Bankers Association interpreted the statute to exclude

non - attorneys from those entitled to attorney's fees under

section 120.595 .

10/ In Galloway , the ALJ noted that the petitioner's attorney had

not been admitted pro hac vice in that proceeding.

11/ In Case No. 16 - 6127RU , Petitioner did not seek, and was not

required by the undersigned, to appear as a qualified

representative. This is because he appeared as a party

representing himself rather than as an attorney representing the

Trust. To that point, he was a named party to that proceeding

appearing as a trustee on behalf of the Trust. See § 120.52(13),

Fla. Stat. ("party" me ans: "(a) specifically named persons whose

substantial interests are being determined in the proceeding"

(emphasis added)). Had Petitioner intended to appear as an

attorney representing the Trust in Case No. 16 - 6127RU , he was

required to have filed a not ice of appearance pursuant to

rule 28 - 106.105 for purposes of being deemed counsel or a

qualified representative of the Trust. However, he did not do so.

Further, had he entered a notice of appearance, he could not have

been designated "counsel" for the Trust because that term is

expressly limited, under rule 28 - 106.106(1), to only members of

the Florida Bar and designated law students. Presuma bly,

Petitioner could have sought authorization to be admitted pro hac

vice in C ase No. 16 - 6127RU under Rule 4 - 5.5 and Florida Rule of

Judicial Administration Rule 2.505. However, as noted above, he

did not do so. Moreover, in any event, he would not have been

eligible to appear pro hac vice in Case No. 16 - 6127RU because he

is suspended from the practice of law i n other jurisdictions.

See Fla . R . Jud . Admin . 2.510.

COPIES FURNISHED:

Joseph R. Gillespie, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Room A432, MS02

2900 Apalachee Parkway

Tallahassee, Florida 32399

(eServed)

Jonathan P. Sanfo rd , Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway, Room A - 432

Tallahassee, Florida 32399

(eServed)

Stephen Williams

1019 Southeast 4th Place

Cape Coral, Florida 33990 - 1521

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

A nya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Flori da 32399 - 0250

(eServed)

Christie S. Utt, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(eServed)

Terry L. Rhodes, Executive Director

Depa rtment of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B - 443

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(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 t he

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 a gency maintains its headquarters or where a party resides or

as otherwise provided by law.