17-002678FC Marion County, Polk County, And Seminole County vs. Department Of Juvenile Justice Status: Closed DOAH Final Order on Tuesday, June 6, 2017.

Summary: Final Order after Remand awarding appellants their attorneys' fees and costs incurred in the appeal pursuant to the parties' stipulation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY, POLK COUNTY,

AND SEMINOLE COUNTY,

Petitioners,

vs. Case No. 17 - 2678FC

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

_______________________________/

FINAL ORDER EN TERING AN AWARD

FOR APPELLATE ATTORNEYSÓ FEES AND COSTS

After a final hearing was scheduled to be heard in this

case before James H. Peterson III, Administrative Law Judge with

the Divi sion of Administrative Hearings, the parties, on June 1,

2017, filed a Stipulation for Entry of Agreed Final Order for

Appellate AttorneysÓ Fees and Costs .

APPEARANCES

(as set forth in the Stipulation)

For Petitioner s Marion County, Polk County, and Seminole

County :

Gregory Stewart, Esquire

Carly J. Schrader, Esquire

Lynn M. Hoshihara , Esquire

Nabors, Giblin & Nickerson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

Matthew G. Minter, Esquire

Marion County Attorney Ós Office

601 Southeast 25th Avenue

Ocala, Florida 34471

Michael S. Craig, Esquire

Polk County Attorney Ó s Office

Drawer AT01, Post Office Box 9005

Bartow, Florida 33831 - 9005

A. Bryant Applegate, Esquire

Lynn P. Porter - Carlton, Esquire

Seminole County Attorney Ó s Office

1101 East 1st Street

Sanford , F lorida 32771

For Respondent Department of Juvenile Justice:

Brian D. Berkowitz, General Counsel

Michael J. Wheeler, Esquire

John L. Milla, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

STATEMENT OF THE ISSUE

Determination, after remand, of an appropriate award for

reasonable attorneysÓ fees and costs incurred by Petitioners in

consolidated appeals.

PRELIMINARY STATEMENT

Petitioners, along with othe r Florida c ounties, challenged

the annual reconcilia tions of the Department of Juvenile Justice

(the Department or Respondent) for fiscal years (FY) 2009 - 10,

2010 - 11, and 2011 - 12, determining each c ountyÓs share of

detention costs under section 985.686, Florida Statutes, and

reconciling the c ounties Ó estima ted costs to their actual costs.

These cases were styled Bay County, et al. v. Department of

Juvenile Justice , DOAH Case No. 11 - 0995 (consolidated); Okaloosa

County, Florida v. Department of Juvenile Justice , DOAH Case

No. 11 - 5894; and Volusia County, et al. v. Department of

Juvenile Justice , DOAH Case No. 13 - 1442 (consolidated). Final

hearings were scheduled in each of these cases. Before final

hearings were held, certain of the DepartmentÓs rules relating

to detention cost share were invalidated in a s eparate

proceeding. Okaloosa C nty . , et al. v. Dep Ó t of Juv . Just . ,

Case No. 12 - 0891RX (Fla. DOAH July 17, 2012), aff Ó d Dep Ó t of

Juv . Just . v. Okaloosa Cnty . , Case No. 1D12 - 3929, 113 So. 3d

1074 (Fla. 1st DCA 2013) ( the Rule Challenge). As a result of

the decision reached in the Rule Challenge, the Department and

the c ounties entered into Joint Stipulations agreeing to the

amounts overcharged to the c ounties for detention cost share for

the fiscal years at issue.

Thereafter, jurisdiction was relinquished t o the

Department. The Department entered F inal O rders which failed

to adopt the Joint Stipulations, and also determined that

Petitioners were not entitled to any remedy for their

overcharges for detention cost share. Thereafter, 20 c ounties,

including Pe titioners, appealed these F inal O rders to the First

District Court of Appeal (the First District) . The three

separate appeals were consolidated before the First District,

as Marion County , et al . v. Department of Juvenile Justice ,

Case Nos. 1D15 - 0589, 1D1 5 - 590 and 1D15 - 592 (consolidated).

After consolidation, the case was briefed and argued, but

before a decision was rendered, the Legislature passed section

985.6865, Florid a Statutes, creating a new cost sharing system

to apply prospectively. Ch. 2016 - 152 , Laws of Fla. This

legislation created a system where, in exchange for dismissing

all pending litigation, the c ounties would be responsible for

detention cost share under a new 50/50 split of the costs

between the c ounties and the State. Seventeen of th e c ounties

filed notices of voluntary dismissal. Petitioners Marion

County, Polk County, and Seminole County, however, are unique in

that these c ounties had previously opted out of the detention

cost share system, as permitted by section 985.686(10) and

d etermined not to dismiss their appeals.

The First District requested further briefing after the

passage of the 2016 legislation. Petitioners, as the only

remaining Appellants, submitted supplemental briefing

continuing to maintain their position on appeal that the

Department erred by rejecting the Joint Stipulations, and by

determining that no refunds would be provided for the

overpayments made by Petitioners. Petitioners also argued that

the 2016 legislation did not compel dismissal of their appeals.

Ult imately, the First District agreed with Petitioners on

all issues. Marion C nty . , et al . v. DepÓ t of Juv. Just . , Case

Nos. 1D15 - 0589, 1D15 - 590 and 1D15 - 592, 42 Fla. L. Weekly D 765

(Fla. 1st DCA A pril 4, 2017). First, the Court determined that

Petitioner s were not compelled to dismiss their appeals. The

First District also determined that the Department is bound by

the Joint Stipulations, and that it has a duty to provide a

reconciliation to Petitioners that constitutes more than simply

a reconciliation on paper.

The First District also awarded PetitionersÓ motion for

attorneysÓ fees under section 120.595(5), Florida Statutes, and

determined that the DepartmentÓs action in rejecting the Joint

Stipulations and unilaterally correcting the countiesÓ

overpaym ent amounts constituted a gross abuse of discretion

warranting appellate fees. The Court remanded (the Remand) fo r

further proceedings, and the M andates were issued on April 20,

2017.

Following the M andates, the above - styled case was

initiated by a Consol idated Notice of Filing (Notice) and a

Consolidated Motion for Award of Appellate AttorneysÓ Fees and

Costs filed by Petitioners on May 9, 2017 (Motion). Attached

to t he Motion were affidavits of PetitionersÓ counsel of

record, Carly J. Schrader, and coun selÓs accounting manager,

Carol Lamb, along with the actual invoices presented to Marion

County, Polk County, and Seminole County, setting forth the

attorneysÓ fees incurred on appeal. Such fees, at the standard

hourly rates charged collectively to Petiti oners, total

$35,658.03.

In addition, attached to the Motion were the affidavits of

Carly J. Schrader and Carol Lamb, and attachments setting forth

the costs sought by Petitioners pursuant to Florida Rule of

Appellate Procedure 9.400, for the filing fees for the three

notices of appeal in the total amount of $192.87.

Because the three separate appeals were consolidated

before the First District and only one award of fees and costs

was sought as to all three appeals, the Motion was filed as a

Consolidated M otion for Award of AttorneysÓ Fees and Costs in

the previously closed DOAH Case Nos. 11 - 0995 , 11 - 5894, and

13 - 1442. In addition, Marion County, Polk County, and Seminole

County are the only parties remaining from the prior

proceedings before the Divisio n. Therefore, at PetitionersÓ

request, this case was restyled as set forth above.

FINDING S OF FACT

1. As the First District has determined PetitionersÓ

entitlement to an award of fees, the only issue remaining to be

determined at the time the above - style d case was opened after

remand was the amount of fees and costs.

2. After a telephonic status conference and the scheduling

of this case for a final hearing, on June 1, 2017, the parties

to this case filed a Stipulation for Entry of Agreed Final Order

for Appellate AttorneysÓ Fees and Costs (Stipulation).

3. In the Stipulation, the parties agreed to the entry of

a final o rder for the award of $35,658.03 as reasonable

attorneys' fees and $192.87, for taxation of costs incurred, in

the consolidated appeals , to be paid with in 30 days from the

entry of a f inal o rder thereon.

4. The amounts for fees and costs set forth in the

Stipulation are consistent with the attachments to the Motion.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

ju risdiction of this case pursuant to the R emand and section

120.595(5), Florida Statutes.

6. Section 120.595(5) sets forth the statutory basis for

the award of attorneyÓs fees and costs for administrative

appeals, and provides as follows:

(5) Appeals. Ï When there is an appeal, the

court in its discretion may award reasonable

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

a ction which precipitated the appeal was a

gross abuse of the agencyÓs discretion .

Upon review of 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 cou rt shall award reasonable

attorneyÓs fees and reasonable costs to a

prevailing appellant for the administrative

proceeding and the appellate proceeding.

7. In addition, Florida Rule of Appellate Procedure 9.400

provides that costs shall be taxed in favor of the prevailing

party by the lower tribunal on a motion served no later than

45 days after rendi tion of the CourtÓs o rder.

8. Under the facts and law, an award of attorney sÓ fees

and costs in the amount stipulated by the parties as reasonable

is approp riate.

ORDER

I n accordance with the above findings and conclusions, the

Remand, section 120.595(5), Florida Rule of Appellate Procedure

9.400, and the Stipulation, it is hereby

ORDERED:

1. Petitioners Marion County, Polk County, and Seminole

County (Pet itioners) are hereby jointly awarded $35,658.03 as

reasonable attorneysÓ fees, and $192.87 in costs, against

Department of Juvenile Justice in the consolidated appeal before

the First District Court of Appeal, Case Nos. 1D15 - 0589, 1D5 -

0590, and 1D15 - 0592.

2. Payment of the amounts set forth in paragraph 1, above,

shall be made by or on behalf of the Department of Juvenile

Justice to the ÐTrust Account of Nabors, Giblin, & Nickerson,

P.A.Ñ within 30 days from the entry of this Final Order.

3. Upon entry of this Final Order, the final hearing

scheduled in this case before the Division of Administrative

Hearings for July 6, 2017, shall be cancelled , and the file in

this case shall be closed.

DONE AND ORDERED this 6th day of June , 2017 , in

Tallahassee, Leon C ounty, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of June , 2017 .

COPIES FURNISHED:

Michael S. Craig, Esquire

Polk County AttorneyÓ s Office

Drawer AT01 , Post Office Box 9005

Bartow, Florida 33831 - 9005

Matt hew G. Minter, Esquire

Marion County AttorneyÓs Office

601 Southeast 25th Avenue

Ocala, Florida 34471

(eServed)

Brian D. Berkowitz, General Counsel

Department of Juvenile Justice

Knight Building, Room 312V

2737 Centerview Drive

Tallahassee, Florida 3239 9 - 3100

(eServed)

Michael J. Wheeler, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399

(eServed)

John L. Milla, Esquire

Department of Juvenile Justice

2737 Centerview Drive, Suite 3200

Tallahassee, Florida 32399

(e Served)

Gregory Stewart, Esquire

Nabors, Giblin and Nickerson, P.A.

Suite 200

1500 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Lynn M. Hoshihara, Esquire

Nabors, Giblin and Nickerson, P.A.

Suite 200

1500 Mahan Drive

Tallahassee, Florida 32308

(eSe rved)

Carley J. Schrader, Esquire

Nabors, Giblin and Nickerson, P.A.

Suite 200

1500 Mahan Drive

Tallahassee, Florida 32308

(eServed)

A. Bryant Applegate, Esquire

Seminole County AttorneyÓ s Office

1101 East 1st Street

Sanford, Florida 32771

Lynn P. P orter - Carlton, Esquire

Seminole County AttorneyÓ s Office

1101 East 1st Street

Sanford, Florida 32771

(eServed)

Christina K. Daly, Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

(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 proc eedings 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.