18-000279F Michael Boxberger And Kelli Boxberger, D/B/A &Quot;The Funky Fiddler&Quot; vs. Department Of Transportation Status: Closed DOAH Final Order on Tuesday, October 30, 2018.

Summary: Petitioners failed to satisfy the requirements for an award of fees and cost pursuant to section 57.111.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL BOXBERGER AND KELLI

BOXBERGER, d/b/a ÐTHE FUNKY

FIDDLER,Ñ

Petitioners,

vs. Case No. 18 - 0279F

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

CO ASTAL RESTAURANT, INC., A

FLORIDA CORPORATION,

Petitioner,

vs. Case No. 18 - 0280F

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

CRUMÓS SERVICE, INC., A FLORIDA

CORPORATION,

Petitioner,

vs. Case No. 18 - 0281F

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

of the Division of Admini strative Hearings (ÐDOAHÑ), in

Tallahassee, Florida, on August 9, 2018.

APPEARANCES

For Petitioner: Ronald A. Mowrey, Esquire

Mowrey Law Firm, P.A.

515 North Adams Street

Tallahassee, Florida 32301 - 1111

For Respondent: Richard E. Shine, Esquire

Douglas Dell Dolan, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

The issue is whether Petitioners are e ntitled to an award

of attorney s Ó fees and costs pursuant to section 57.111, Florida

Statutes (2017). 1/ Petitioners are entitled to such an award if:

(a) Petitioners were the prevailing parties in a previous

administrative proceeding initiated by the Department of

Transportation (Ðthe DepartmentÑ); (b) the DepartmentÓs actions

were not substantially justified; and (c) no special

circumstances exist that would make an award of fees and costs

unju st.

PRELIMINARY STATEMENT

On January 16, 2018, Michael Boxberger and Kelli Boxberger,

d/b/a ÐThe Funky FiddlerÑ ( Ð The Funky Fiddler Ñ ) ; Coastal

Restaurant, Inc. , a Florida Corporation ( Ð Coastal Restaurant Ñ ) ;

and CrumÓs Service, Inc. , a Florida Corporation ( Ð CrumÓs

Service Ñ ) (collectively referred to as ÐPetitionersÑ) , filed

separate p etitions seeking awards of attorneysÓ fees and costs

pursuant to section 57.111.

The undersigned issued Initial Orders on January 16, 2018,

giving the Department 20 days to file written statements setting

forth its defenses. The Initial Orders specified that

Petitioners had 10 days following the filing of the DepartmentÓs

responses to reque st evidentiary hearings.

On February 19, 2018, the undersigned issued an Order

consolidat ing PetitionersÓ cases.

On February 26, 2018, the undersigned issued a n otice

scheduling the final hearing to occur on April 11, 2018.

The Department filed a ÐMotion to Amend Order of Pre -

hearing Instructions to File Memorandum of LawÑ (Ðthe Motion to

Am endÑ) on March 2, 2018, asking the undersigned to bifurcate

this proceeding and establish a briefing schedule enabling the

parties to present legal arguments as to whether Petitioners

Ðare small business parties and whether they are prevailing

small busine ss parties.Ñ After convening a telephonic

conference on March 14, 2018, the undersigned issued an Order

giving the parties until March 30, 2018, to file a set of

stipulated fact s sufficient to enable the undersigned to

determine: (a) whether the actions at issue were Ðinitiated by

a state agencyÑ within the meaning of section 57.111(3)(b) ;

(b) whether Petitioners were Ðprevailing small business partiesÑ

within the meaning of s ection 57.111(3)(c); and (c) whether

Petitioners are Ðsmall business parties Ñ within the meaning of

section 57.111(3)(d).

After convening a telephonic status conference on April 5,

2018, the undersigned issued an Order canceling the final

hearing scheduled for April 11, 2018, and requiring the parties

to submit an amended set of st ipulated facts by April 20, 2018.

After the parties filed separate sets of Ðstipulated

facts,Ñ the undersigned issued an Order on April 30, 2018,

denying the DepartmentÓs Motion to Amend. The Order explained

the undersignedÓs reasoning as follows:

On Ma rch 29, 2018, the parties filed ÐJoint

Stipulated FactsÑ that set forth each

partyÓs position rather than a set of facts

that were undisputed.

After having a telephonic status conference

with the parties on April 5, 2018, the

undersigned advised the par ties as to what

was expected from a set of stipulated facts

and issued an Order on April 5, 2018, giving

the parties an opportunity to submit an

amended set of stipulated facts by April 20,

2018.

The Department of Transportation filed a

unilateral set of ÐStipulated FactsÑ on

April 20, 2018. The Petitioners filed their

unilateral set of ÐStipulated FactsÑ on

April 24, 2018.

It is still unclear to the undersigned

whether the parties agree on all of the

facts that are material to determining:

(a) whe ther the actions at issue were

Ðinitiated by a state agencyÑ within the

meaning of section 57.111(3)(b); (b) whether

Petitioners are Ðprevailing small business

partiesÑ within the meaning o f section

57.111(3)(c); and (c) whether Petitioners

are Ðsmall busi ness partiesÑ within the

meaning of section 57.111(3)(d).

The undersigned issued a n otice on April 30, 2018,

scheduling the final heari ng for June 27, 2018.

On May 18, 2018, the Department filed a ÐMotion to Dismiss

as the Division of Administrative Hear ings Lacks Jurisdiction

and Petitioners Are Not a Prevailing Small Business PartyÑ (Ðthe

Motion to DismissÑ). Rather than making a case that DOAH lacks

jurisdiction over the instant case, the DepartmentÓs arguments

pertained to whether Petitioners could m aintain a claim for

attorneysÓ fees under section 57.111. The undersignedÓs May 21,

2018, Order disposing of the Motion to Dismiss stated the

following:

The Department argues in part that

PetitionersÓ pursuit of attorneysÓ fees is

premature because there has been no

proceeding before a circuit court or DOAH

regarding the underlying dispute between the

parties. However, the plain language of

section 57.111 indicates that a party can be

entitled to attorneysÓ fees even if there

has been no underlying procee ding before a

circuit court or DOAH.

The first step in this analysis is to

determine whether the Department initiated

an administrative proceeding.

Section 57.111(4)(a) provides that:

an award of attorneyÓs fees and

costs shall be made to a

prevail ing small business party in

any adjudicatory proceeding or

administrative proceeding pursuant

to chapter 120 initiated by a

state agency , unless the actions

of the agency were substantially

justified or special circumstances

exist which would make the awar d

unjust.

( emphasis added). Section 57.111(3)(b)

provides in pertinent part that Ðinitiated

by a state agencyÑ means that the state

agency Ð[w]as required by law or rule to

advise a small business party of a clear

point of entry after some recognizable e vent

in the investigatory or other free - form

proceeding of the agency.Ñ

Contrary to the DepartmentÓs argument,

section 57.111 does not require that a

proceeding be referred to DOAH before a

party is entitled to attorneysÓ fees. The

statute merely require s that a state agency

initiate an administrative proceeding, and

the pleadings currently before the

undersigned indicate that the Department

initiated an administrative proceeding

because a ÐNotice of Intent to Modify

Driveway Connection(s)Ñ issued by the

Department on August 4, 2017, advised

Petitioners of their right to petition for a

formal or informal administrative hearing.

The Department also argues that Petitioners

cannot be a Ðprevailing small business

partyÑ because the parties have not executed

a settlement agreement. Section

57.111(3)(c)2. provides in pertinent part

that a small business party is a Ðprevailing

small business partyÑ when Ð[a] settlement

has been obtained by the small business

party which is favorable to the small

business party o n the majority of the issues

which such party raised during the course of

the proceeding . . . .Ñ

A similar argument was made in Playbig

Therapy and Recreation Zone, LLC; Kelley H.

Hutto, P.T.; and Rachel Schrlepp v. Ag. for

Health Care Admin. , Case No. 16 - 3972F (Fla.

DOAH Jan. 27, 2017), and the Administrative

Law Judge concluded that a written

settlement agreement was not required in

order for a party to be considered a

Ðprevailing small business partyÑ under

section 57.111(3)(c)2.:

98. AHCA argues t hat section

57.111(3)(c)2. cannot apply to the

instant case because there was no

oral or written settlement

agreement between the parties.

99. While there may not have been

a meeting of the minds between the

parties, AHCA clearly capitulated,

and Petiti oners clearly prevailed.

It would be absurd to interpret

the term ÐsettlementÑ in section

57.111(3)(c)2. as requiring that

there be an agreement between the

parties. See Williams v. State ,

492 So. 2d 1051, 1054 (Fla.

1986)(stating that Ð[s]tatutes, as

a rule, will not be interpreted so

as to yield an absurd result.Ñ).

If that were the case, agencies

acting without substantial

justification could avoid an award

of fees by taking unilateral

action to remedy a situation after

realizing that a small business

party was about to prevail.

Accordingly, the undersigned denied the Motion to Dismiss.

The undersigned convened the final hearing on June 27,

2018. Because arrangements had not been made for a court

reporter, the final hearing could not proceed as sch eduled. On

June 29, 2018, the undersigned issued a n otice rescheduling the

final hearing to occur on July 25, 2018.

After considering a Motion for Continuance , filed on

July 23, 2018, the undersigned issued a n otice on July 24, 2018,

rescheduling the f inal hearing for August 9, 2018.

During the August 9, 2018, final hearing, Petitioners

presented the testimony of Ronald Fred Crum and Rita Sadler.

Petitioners did not move any exhibits into evidence.

Neither Michael Boxberger nor Kelli Boxberger appea red at

the final hearing. Counsel for Petitioners announced at the

outset of the final hearing that Ms. Boxberger was in North

Carolina in order to appear in a court proceeding unrelated to

the instant case. In response to a question from the

undersigned , PetitionersÓ counsel stated that he would not be

seeking a continuance.

The Department presented the testimony of Reid Carter

Johnson, Kerrie Harrell, and Rodney Chamberlain. The

DepartmentÓs Exhibits 1 through 5 and 9 through 11 were accepted

into e vidence.

The transcript was filed on August 21, 2018, and t he

parties timely submitted their p roposed f inal o rders on

August 31, 2018 . T he undersigned considered those filings in

the preparation of this Final Order.

FINDING S OF FACT

The following Findi ngs of Fact are based on the oral and

documentary evidence adduced at the final hearing, matters

subject to official recognition, and the entire record in this

proceeding:

The Parties

1. The Department is the state agency responsible for

coordinating the planning of a safe, viable, and balanced state

transportation system that serves all regions of Florida.

§ 334.044(1), Fla. Stat. As part of its duties, the Department

regulates Ð[v]ehicular access and connections to or from the

State Highway System . . . in order to protect the public

health, safety, and welfare.Ñ £ 335.182(1), Fla. Stat.

2. CrumÓs Service is owned by Ronald Crum and has been in

operation for over 50 years. It is located in Panacea, Florida,

adjacent to St ate Road 30/61 (ÐHighway 98 Ñ).

3. CrumÓs Service has less than 10 employees, and

Mr. CrumÓs net worth is less than two million dollars .

4. Coastal Restaurant is owned by Rita Sadler and has been

in her family since the 1950s. It is next to CrumÓ s Service and

is also adjacent to Highway 98.

5. Coastal Restaurant has approximately seven full - time

employees, and Ms. SadlerÓs net worth does not exceed two

million dollars .

6. Kelli Boxberger operates The Funky Fiddler located on

Highway 98 in Panacea. The Funky Fiddler has bee n in operation

since the 1950s.

7. Driveway connections on state roads must be permitted

or grandfathered. § 335.1825, Fla. Stat.; Fla. Admin. Code R.

14 - 96.011(3)(a). Because PetitionersÓ driveways were in place

before 1988, they are grandfathered. § 335.187(1), Fla. Stat.

Facts Specific to the Instant Case

8. On April 7, 2014, the Wakulla County Board of

Commissioners voted unanimously to support the design and

construction of sidewalks and multiuse paved paths. In order to

further that effort, Wakulla County requested that the

Department fund sidewalk construction from Piney Street to

Jer Be Lou Boulevard in Panacea. The proposed sidewalk was

intended to address safety concerns associated with peopl e

walking along Highway 98.

9. The Departme nt funded the sidewalk project and

incorporated it into a s eparate project to resurface a seven

mile portion of Highway 98 running through Wakulla County.

10. The sidewalk project required the Department to

evaluate whether existing driveways along High way 98 needed to

be modified for pedestrian safety.

11. If the Department determined that particular driveways

needed to be modified, then it sent written notifica tion to the

property owners.

12. On August 4, 2017, the Department issued letters to

Mr. Crum, Ms. Sadler, and the Boxberger s referencing work on the

portion of Highway 98 running from the Franklin County line to

Boykin Road in Wakulla County. The letters stated the

following:

While developing the above - referenced

project, [the Department ] is required to

evaluate existing driveway access

connections and modify those which will

create a traffic operations or safety

problem. As part of this project, sidewalk

will be constructed between Piney Street and

Dickson Bay Road. The existing drivew ays

adjacent to the proposed construction work

for this project also required evaluation

for safety of pedestrians. The Department

has completed this evaluation and is

notifying you of its proposed action with

this Notice of Intent to Modify Driveway

Conn ection(s).

13. The letters then state that Ð[p]ursuant to

Sections 334.044(14) and 335.182, Florida Statutes, the

Department is initiating action to alter the existing connection

of your property to [Highway 98] as identified on the enclosed

ÐDRIVEWAY DETAIL.Ñ

14. In other words, the Department was providing notice

that it intended to install a sidewalk in front of CrumÓs

Service and Coastal Restaurant. The proposed sidewalks would

have modified the driveways onto the properties , but would not

have closed them.

15. The DepartmentÓs proposed modification to the

Boxberger property involved a 39 - foot wide driveway connection

and a sidewalk on either side of the driveway.

16. All of the DepartmentÓs proposed modifications

pertained to land complete ly with in the DepartmentÓs right - of -

way.

17. The DepartmentÓs August 4, 2017, letters closed by

advising Mr. Crum, Ms. Sadler, and the Boxbergers that they had

21 days to request a formal administrative hearing if they

disagreed with the DepartmentÓs prop osed action.

18. Mr. Crum was concerned that the proposed sidewalk

would Ðtotally annihilateÑ his business. Many of his customers

use cars or trucks to tow boats. According to Mr. Crum, the

DepartmentÓs proposal would have resulted in there being

insu fficient space in his parking lot for vehicles towing boats.

19. Ms. Sadler was concerned that the proposed sidewalk

would destroy the parking spaces in front of her restaurant.

20. On August 17, 2017, staff members from the Florida

House and Senate organized a constituent meeting at a local

restaurant to hear concerns abo ut the resurfacing project.

21. Mr. Crum, Ms. Sadler, a handful of constituents, two

legislative staff members, and Reid Carter Johnson, a government

affairs liaison from the Depar tment, attended the meeting .

22. Business owners told Mr. Johnson that the proposed

sidewalk would impair access between thei r property and

Highway 98.

23. Mr. Johnson told those present that the DepartmentÓs

engineers would confer with anyone who had concerns about the

proposed sidewalk. 2/

24. On approximately August 18, 2017, Mr. Crum and

Ms. Sadler hired Ronald A. Mowrey, Esquire , to represent them in

this matter. On August 23, 2017, CrumÓs Service and Coastal

Restaurant filed petitions seeking t o challenge the DepartmentÓs

proposed action through forma l administrative hearings.

25. Engineers from the Department conducted a site visit

with Mr. Crum, Ms. Sadler, and their attorney on August 29,

2017, at CrumÓs Service and Coastal Restaurant. Aft er listening

to Mr. Crum and Ms. SadlerÓs concerns, the engineers stated that

they would revi ew all of the information.

26. Engineers from the Department also met with

Ms. Boxberger on August 29, 2017, in order to conduct a site

visit pertaining to the location of T he Funky Fiddler. At that

time, Ms. Boxberger had not retained counsel.

27. Ms. Boxberger was concerned that the DepartmentÓs

proposed modification would prevent her from displaying

merchandise in front of her store on the DepartmentÓs rig ht - of -

way. She was also concerned that the DepartmentÓs proposal

would deprive her busi ness of three parking spaces.

28. On September 18, 2017, Ms. Boxberger filed a petition

to challenge the DepartmentÓs proposed action through a form al

administrative hearing.

29. Petitioners did not hear from the Department again

until the Department issued each of them an ÐAmended Notice of

Intent to Modify Driveway Connections(s)Ñ ( Ðthe Amended

Notice (s) Ñ ), on November 20, 2017.

30. The Amended Notices stated th at :

[ P ]ursuant to Sections 334.044(14), 335.182

and 335.187, Florida Statutes, as well as

Rules 14 - 96.011 and 14 - 96.015 Florida

Administrative Code, the Department has

reviewed the existing connection of your

property to [Highway 98]. Subsequent to the

i nitial Notice of Intent to Modify Driveway

Connections, the Department met with you on -

site on August 29, 2017 and engaged in other

coordination efforts with your

representative to consider information,

documents, reports and alternative

solutions. After taking into consideration

the concerns expressed in these discussions,

the Department has amended its plans as

detailed in ÐEXHIBIT AÑ.

31. The Amended Notices indicat ed that the Department

decided against placing a sidewalk in front of CrumÓs Service

and Coastal Restaurant. 3/

32. The DepartmentÓs Amended Notice to Ms. Boxberger

clarified the substance of the DepartmentÓs proposed action but

set forth no mater ial changes.

33. The Amended Notices to all three Petitioners stated

that they could request a formal administrative hearing if they

disagreed with the proposed action set f orth in the Amended

Notices.

34. Mr. Crum and Ms. Sadler were satisfied and did not

challenge the DepartmentÓs proposed action.

35. As a result, the Department issued Fina l Orders

dismissing the petitions filed by Mr. Crum and Ms. Sadler.

36. As of August 31, 2017, the Department had not disposed

of the petition filed by Ms. Boxberger.

CONCLUSIONS OF LAW

37. DOAH has personal and subject matter jurisdiction in

this proc eeding pursuant to sections 57.111(4), 120.569,

and 120.57(1), Florida Statutes. The Administrative Law Judge

has final order authority in this matter. § 57.111(4)(d), Fla.

Stat.

38. The Florida Legislature has found that small business

parties Ðmay be deterred from seeking review of, or defending

against, unreasonable governmental action because of the expense

of civil actions and administrative proceedings. Because of the

greater resources of the state, the standard for an award of

attorneyÓs fees an d costs against the state should be different

from the standard for an awar d against a private litigant.Ñ

§ 57.111(2), Fla. Stat.

39. Accordingly, the Florida Legislature enacted

section 57.111 , also known as the Florida Equal Access to

Justice Act (Ð FEAJAÑ), to Ðdiminish the deterrent effect of

seeking review of, or defending against, governmental action by

providing in certain situations an award of attorneyÓs fees and

costs against the state.Ñ £ 57.111(2), Fla. Stat.

40. Section 57.111 directs tha t unless otherwise provided

by law, a reasonable sum for ÐattorneyÓs fees and costsÑ shall

be awarded to a private litigant when all five of the following

predicate findings are made:

1. An adversarial proceeding was Ðinitiated

by a state agency.Ñ

2. Th e private litigant against whom such

proceeding was brought was a Ðsmall business

party.Ñ

3. The small business party Ðprevail[ed]Ñ

in a proceeding initiated by a state agency.

4. The agencyÓs actions were not

substantially justified.

5. No special c ircumstances exist that

would make an award of fees unjust.

41. The Department and Petitioners have stipulated that

Petitioners are Ðsmall business partiesÑ within the meaning of

section 57.111. As a result, Petitioners are entitled to award

of fees an d costs if they can demonstrate that: (a) the

Department initiated an adversarial proceeding; (b) Petitioners

were prevailing parties; (c) the DepartmentÓs actions were not

substantially justified; and (d) there are no special

circumstances that would mak e an award of fees and costs unjust.

Did the Department Initiate an Adversarial Proceeding?

42. Section 57.111(3)(b) provides that the term Ðinitiated

by a state agencyÑ means that the state agency: (a) Ð[f]iled

the first pleading in any state or fede ral court in this stateÑ ;

(b) Ð[f]iled a request for an administrative hearing pursuant to

chapter 120Ñ ; or (c) Ð[w]as required by law or rule to advise a

small business party of a clear point of entry after some

recognizable event in the investigatory or other free - form

proceeding of the agency.Ñ

43. The first two descriptions of Ðinitiated by a state

agencyÑ are inapplicable to the instant case. Therefore,

Petitioners must demonstrate that the Department was required to

advise them of their right to r equest a formal administrative

hearing. See Vause v. DepÓt of Nat . Res . , Case No. 89 - 2101F

(F la. DOAH May 24, 1989)(concluding that Ð[i]n proceedings under

Section 57.111, the Petitioner bears the initial burden of

proving that it is a small business part y, that it prevailed,

and that the underlying adjudicatory proceeding pursuant t o

Chapter 120 was initiated by a state agency. Once this showing

is made, the burden shifts to the Agency to demonstrate that its

actions were substantially justified or that special

circumstances exist which would make the award unjust.Ñ).

44. With regard to the DepartmentÓs obligation to provide

notice of its intended action to Petitioners, Florida

Administrative Code Rule 14 - 96.011(5) provides that the

Department must provi de the following notice if it intends to

modify a grandfathered connection , such as those at issue in the

instant case:

(5) Notification Process for Modification

of Unpermitted Connections. Notice of the

DepartmentÓs intended action will be

provided in a ccordance with Rule Chapter 28 -

106, F.A.C. The DepartmentÓs action will

become final unless a timely petition for a

hearing is filed in accordance with Rule

Chapter 28 - 106, F.A.C. In order to be

timely, the petition must be filed with the

DepartmentÓs Cl erk of Agency Proceedings

within 21 days after receipt of the

DepartmentÓs notice, in accordance with Rule

Chapter 28 - 106, F.A.C.

(a) The Department shall give written

notice to the property owner, with a copy to

the occupant, for a grandfathered connect ion

if significant changes have occurred or if

the connection is found to cause a safety or

operational problem (as specified in this

rule chapter). The notice will identify the

specific information regarding the safety or

operational problem and request that the

problem be corrected or that a written

agreement on a schedule for the correction

be approved by the Department within 30 days

of receipt of the notice.

45. Therefore, the Department Ð[w]as required by law or

rule to advise a small business part y of a clear point of entry

after some recognizable event in the investigatory or other

free - form proceeding of the agency,Ñ and the Department complied

with that requirement via the n otices issued on August 4, 2017.

Were Petitioners Prevailing Partie s?

46. Section 57.111(3)(c) describes the circumstances in

which a small business party will be deemed to be a Ðprevailing

small business party.Ñ Section 57.111 (3)(c)2 . describes the

only circumstance relevant to the instant case and states a

small bus iness party has prevailed when Ð[a] settlement has been

obtained by the small business party which is favorable to the

small business party on the majority of the issues which such

party raised duri ng the course of the proceeding .Ñ

47. Rule 14 - 96.011(4) (c ) specifies that if the Department

acts to modify a grandfathered connection, then the Department

Ðshall offer an opportunity to meet on site with the property

owner or designated representative.Ñ The rule further specifies

that the Department will consid er Ð[d]ocuments, reports, or

studies obtained by the property owner or lessee and provided to

the Department . Ñ The Department will also consider

Ð[a]lternative solutions proposed by the property owner.Ñ

48. The DepartmentÓs own rule requires it to meet on - site

with property owners and consider alternatives to its proposed

action. It is fair to inf er that the Department adopted

r ule 14 - 96.011(4) (c) partially in an effort to avoid costly

and/or protracted litigation over grandfathered connections.

49. In the instant case, the facts demonstrate that

Petitioners did little other than meet with Department

representatives during the mandatory site visits and voice their

concerns. Afterward, the Department unilaterally issued the

Amended Notices. Rather th an Petitioners using legal or other

means to ÐobtainÑ a settlement, the instant case is an instance

in which the facial intent behind r ule 14 - 96.011(4)(c) was

satisfied. Thus, Petitioners were not Ðprevailing parties.Ñ

Were the DepartmentÓs Actions ÐSubst antially Justified ?Ñ

50. Section 57.111 provides that a party seeking an award

of fees and costs pursuant to the FEAJA is not entitled to an

award if the agency can demonstrate that its actions are

Ðsubstantially justified.Ñ

51. In order to be Ðsubstan tially justified,Ñ the agencyÓs

actions must have had a reasonable basis in law and fact at the

time the action at issue was taken.

52. The agency has the burden of proving by a

preponderance of the evidence that its actions were

Ðsubstantially justified. Ñ See DepÓt of HRS v. South Beach

Pharmacy , 635 So. 2d 117, 121 (Fla. 1st DCA 1994)(noting that

Ðonce a prevailing small business part y proves that it qualifies

as such under section 57.111, the agency that initiated the main

or underlying proceeding has the burden to show substantial

justification or special circumstances.Ñ); £ 120.57(1)(j), Fla.

Stat. (providing that Ð[f]indings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute, and shall be based exclusively on the evidence of

record and on matt ers officially recognized.Ñ).

53. Section 334.044 (14 ) provides that the Department has

the duty Ð[t] o establish, control, and prohibit points of

ingress to, and egress from, the State Highway System, the

turnpike, and other transportation facilities under the

departmentÓs jurisdiction as necessary to ensure the safe,

efficient, and effective maintenance and operation of such

facilities.Ñ

54. Section 335.1 82 provides that Ð[v ]ehicular access and

connections to or from the State Highway System shall be

regulated by the department in accordance with the provisions of

this act in order to protect the public health, safety, and

welfare.Ñ

55. Section 335.181( 2) states:

It is the policy of the Legislature that:

(a) Every owner of property which abuts a

road on the State Highway System has a right

to reasonable access to the abutting state

highway but does not have the right of

unregulated access to such highw ay. The

operational capabilities of an access

connection may be restricted by the

department. However, a means of reasonable

access to an abutting state highway may not

be denied by the department, except on the

basis of safety or operational concerns as

provided in s. 335.184.

(b) The access rights of an owner of

property abutting the State Highway System

are subject to reasonable regulation to

ensure the publicÓs right and interest in a

safe and efficient highway system. This

paragraph does not authorize the department

to deny a means of reasonable access to an

abutting state highway, except on the basis

of safety or operational concerns as

provided in s. 335.184. Property owners are

encouraged to implement the use of joint

access where legally available.

56. The legal authori ties cited above , demonstrate that

the Department had the legal authority, and thus a reasonable

basis in law, for proposing the modifications that were at

issue.

57. The Department also had a reasonable basis in fact

because the modifications were part o f an effort to further a

sidewalk construction project in Panacea and to incorporate it

into a larger project to resurface a seven mile portion of

Highway 98 running through Wakulla County.

Are There Any ÐSpecial CircumstancesÑ That Would Make an Award

of Fees and Costs Unjust?

58. In addition to demonstrating that its actions were

Ðsubstantially justified,Ñ a state agency can avoid paying fees

and costs under section 57.111 if it can demonstrate that there

are special circumstances that would make an aw ard of fees and

costs unjust. See § 57.111(4)(a), Fla. Stat. (mandating that

Ðan award of attorneyÓs fees and costs shall be made to a

prevailing small business party in any adjudicatory proceeding

or administrative proceeding pursuant to chapter 120 init iated

by a state agency, unless the actions of the agency were

substantially justifie d or special circumstances exist which

would make an award unjust.Ñ).

59. Section 57.111 does not define the term Ðspecial

circumstances.Ñ However, Ðthe use of the word ÒspecialÓ

connotes something unusual or unique.Ñ Brown v. Bd. of

Psychological ExamÓr , Case No. 92 - 6307F ( Fla. August 24,

1993)(concluding that Ðnone of these circumstances rises to a

level of being so special or unique as to excuse respondentÓs

actions.Ñ ).

60. As noted above, the Florida Equal Access to Justice

Act is modeled after the Federal Equal Access to Justice Act,

and case law regarding the federal statute provides some

guidance regarding the proper interpretation of Ðspecial

circumstancesÑ in the state statute. For instance, federal case

law states that Ð[t]he EAJAÓs Òspecial circumstancesÓ exception

is a Òsafety valveÓ that gives the court discretion to deny

awards where equitable considerations dictate an award should

not be made.Ñ Vincent v. CommÓr of Soc. Sec. , 651 F.3d 299, 303

(2d Cir. 2011). See also Horton v. Barnhart , 2004 U.S. Dist.

LEXIS 4063, at *7 (S.D. N.Y. 2004)(noting that Ð[t]he terms

Òspecial circumstancesÓ and ÒunjustÓ have not been defined and

thus the court should be guide d by general principles of

equity.Ñ). However, what amounts to a Ðsafety valveÑ is

indistinct because federal case law also states that Ðif the

Òspecial circumstancesÓ exception is to function as an equitable

Òsafety valve,Ó its contours can emerge only o n a case - by - case

basis.Ñ Vincent , 651 F.3d at 303 (noting that Ð[a] prevailing

party can therefore be denied attorneyÓs fees under the EAJA for

Òspecial circumstancesÓ when his own misconduct created the

circumstances that led to the litigation, see Oguac huba , 706

F.2d at 94, and when that partyÓs contributions to the

litigationÓs success were Òmarginal, duplicative and

unnecessary,Ñ see 27.09 Acres , 43 F.3d at 771. These two

examples of Òspecial circumstances,Ó which illustrative, do not

define the excep tion.Ñ).

61. In the instant case, the Department followed its own

rule, acted reasonably, and did not display the intractable

behavior that often leads to section 57.111 proceedings.

Furthermore, the Department was clearly acting in the interests

of public safety and was able to adequately advance that

interest after reevaluating the matter. As a result, special

circumstances would make an award of fees and cost to

Petitioners inequitable.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petitions to Award AttorneysÓ Fees

and Costs filed by Michael Boxberger and Kelli Boxberger, d/b/a

ÐThe Funky FiddlerÑ ; Coastal Restaurant, Inc., a Florida

Corporation ; and CrumÓs Service, Inc. , a Florida Corporation,

are DE NIED.

DONE AND ORDERED this 30 th day of October, 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, 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 30 th day of October, 2018 .

ENDNOTE S

1/ Unless indicated otherwise, all statutory references wi ll be

to the 2017 version of the Florida Statutes.

2/ Mr. Crum and Ms. Sadler testified that the Department was

unwilling to consider their concerns during the restaurant

meeting and that a representative from the Department

essentially told them to hir e an attorney.

3/ Kerrie Harrell, a supervising engineer with the Department,

explained why the Department decided to move the proposed

sidewalk after the site meeting:

ALJ : Can you explain to me why [the

Department] changed its mind?

A : Sure. As part of installing a sidewalk

on a project, our goal is to not only

consider vehicles driving on our facility,

itÓs pedestrians, cyclists. So whenever we

add sidewalk, we want to put it at [a]

logical location. And I think the basis of

the limits of thi s, I mean, ideally we have

all the budget in the world and we construct

on the east and west sides of the 3R job,

but that wasnÓt ideal.

So we focus on what the CountyÓs initial

request is and look at the engineering

related to it. So we had an engineer

propose, put it from Piney Street to the

road just north of PoseyÓs which is Dickson

Bay Road. So when we heard the property

ownersÓ concerns, they see traffic coming

into their business more than we do, when

they say they have safety concerns for

pedestr ians with the traffic coming in, we

listen to that.

So from our standpoint, when we went back

and looked at the engineering reasons why we

were putting in the sidewalk is to move

pedestrians from one logical location to

another, Woolley Park became more l ogical as

a connection to Mound Street than Piney

Street because there is really nothing past

Piney Street. Coastal Restaurant is down

there, CrumÓs is down there. They donÓt

want the sidewalk in front of them, that was

evidenced by the discussions we ha d with

them. So the logical generator is Woolley

Park. So thatÓs why we stopped at Mound

Street and terminated the sidewalk there.

If something happens in the future, maybe a

sports complex or something gets built to

the south, yes, you definitely look at

adding that sidewalk length in the future.

ALJ : So it sound like what you are saying

is that you initially Î the Department

initially planned to put the sidewalk in

front of Coastal and CrumÓs, and then based

on what you heard from Coastal and CrumÓs,

you decided, okay, letÓs put it somewhere

else; is that a fair statement?

A : I wish it were as simple as listening to

concerns of the property owner. ThatÓs part

of it.

ALJ : That was part of it?

A : That was part of the consideration we

made. We ha d to go back and look at the

engineering, because it truly became from an

engineering standpoint why do we need

sidewalk where we are proposing it and where

is the most logical place. So we changed

our designs based on engineering reasons,

not necessarily unhappy property owners.

ALJ : So let me try Î - so would it be fair

to say that in light of the concerns raised

by the citizens and the fact that it made

engineering sense, you went, okay, we can

put the sidewalk somewhere else for now

anyway unless, li ke you said, a sports

complex gets built. I guess is it fair to

say based on the concerns from Coastal and

CrumÓs and because there was an alternative

that made engineering sense, you decided to

put the sidewalk somewhere else; is that

fair?

A : Yes. An d we also knew we had a multiuse

path project funded at that point. We knew

we could get pedestrians down the west side

of U.S. 98 north of that, so it became Î as

long as we have something to get them north

and south in this area, the priority then

becom es that west side project and that next

project being installed. ItÓs a combination

of all the factors at play.

ALJ : So I guess CrumÓs and Coastal, the

reasons would apply equally to them because

they are right next to each other?

A : Yes, sir.

COPIES FURNISHED:

Richard E. Shine, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

(eServed)

Ronald A. Mowrey, Esquire

Mowrey Law Firm, P.A.

515 North Adams Street

Tallahassee, Florida 32301 - 1111

( eServed)

Douglas Dell Dolan, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(eServed)

Andrea Shulthiess , Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suawa nnee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0390

(eServed)

Erik Fenniman, General Counsel

Department of Transportation

Haydon Burns Building

605 Suawannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0390

(eServed)

Michael J. Dew, Secretary

Department of Transportation

Haydon Burns Building

605 Suawannee Street, Mail Stop 57

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pu rsuant 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 Admini strative 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 h eadquarters or where a

party resides or as otherwise provided by law.