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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MICHAEL BOXBERGER AND KELLI

12BOXBERGER, d/b/a ÐTHE FUNKY

16FIDDLER,Ñ

18Petitioners,

19vs. Case No. 18 - 0279F

25DEPARTMENT OF TRANSPORTATION,

28Respondent.

29_______________________________/

30CO ASTAL RESTAURANT, INC., A

35FLORIDA CORPORATION,

37Petitioner,

38vs. Case No. 18 - 0280F

44DEPARTMENT OF TRANSPORTATION,

47Respondent.

48_______________________________/

49CRUMÓS SERVICE, INC., A FLORIDA

54CORPORATION,

55Petitioner,

56vs. Case No. 18 - 0281F

62DEPARTMENT OF TRANSPORTATION,

65Respondent.

66_______________________________/

67FINAL ORDER

69Pursuant to notice, a formal administrative hearing was

77conducted before Administrative Law Judge Garnett W. Chisenhall

85of the Division of Admini strative Hearings (ÐDOAHÑ), in

94Tallahassee, Florida, on August 9, 2018.

100APPEARANCES

101For Petitioner: Ronald A. Mowrey, Esquire

107Mowrey Law Firm, P.A.

111515 North Adams Street

115Tallahassee, Florida 32301 - 1111

120For Respondent: Richard E. Shine, Esquire

126Douglas Dell Dolan, Esquire

130Department of Transportation

133Mail Station 58

136605 Suwannee Street

139Tallahassee, Florida 32399 - 0458

144STATEMENT OF THE ISSUE

148The issue is whether Petitioners are e ntitled to an award

159of attorney s Ó fees and costs pursuant to section 57.111, Florida

171Statutes (2017). 1/ Petitioners are entitled to such an award if:

182(a) Petitioners were the prevailing parties in a previous

191administrative proceeding initiated by the Department of

198Transportation (Ðthe DepartmentÑ); (b) the DepartmentÓs actions

205were not substantially justified; and (c) no special

213circumstances exist that would make an award of fees and costs

224unju st.

226PRELIMINARY STATEMENT

228On January 16, 2018, Michael Boxberger and Kelli Boxberger,

237d/b/a ÐThe Funky FiddlerÑ ( Ð The Funky Fiddler Ñ ) ; Coastal

249Restaurant, Inc. , a Florida Corporation ( Ð Coastal Restaurant Ñ ) ;

260and CrumÓs Service, Inc. , a Florida Corporation ( Ð CrumÓs

270Service Ñ ) (collectively referred to as ÐPetitionersÑ) , filed

279separate p etitions seeking awards of attorneysÓ fees and costs

289pursuant to section 57.111.

293The undersigned issued Initial Orders on January 16, 2018,

302giving the Department 20 days to file written statements setting

312forth its defenses. The Initial Orders specified that

320Petitioners had 10 days following the filing of the DepartmentÓs

330responses to reque st evidentiary hearings.

336On February 19, 2018, the undersigned issued an Order

345consolidat ing PetitionersÓ cases.

349On February 26, 2018, the undersigned issued a n otice

359scheduling the final hearing to occur on April 11, 2018.

369The Department filed a ÐMotion to Amend Order of Pre -

380hearing Instructions to File Memorandum of LawÑ (Ðthe Motion to

390Am endÑ) on March 2, 2018, asking the undersigned to bifurcate

401this proceeding and establish a briefing schedule enabling the

410parties to present legal arguments as to whether Petitioners

419Ðare small business parties and whether they are prevailing

428small busine ss parties.Ñ After convening a telephonic

436conference on March 14, 2018, the undersigned issued an Order

446giving the parties until March 30, 2018, to file a set of

458stipulated fact s sufficient to enable the undersigned to

467determine: (a) whether the actions at issue were Ðinitiated by

477a state agencyÑ within the meaning of section 57.111(3)(b) ;

486(b) whether Petitioners were Ðprevailing small business partiesÑ

494within the meaning of s ection 57.111(3)(c); and (c) whether

504Petitioners are Ðsmall business parties Ñ within the meaning of

514section 57.111(3)(d).

516After convening a telephonic status conference on April 5,

5252018, the undersigned issued an Order canceling the final

534hearing scheduled for April 11, 2018, and requiring the parties

544to submit an amended set of st ipulated facts by April 20, 2018.

557After the parties filed separate sets of Ðstipulated

565facts,Ñ the undersigned issued an Order on April 30, 2018,

576denying the DepartmentÓs Motion to Amend. The Order explained

585the undersignedÓs reasoning as follows:

590On Ma rch 29, 2018, the parties filed ÐJoint

599Stipulated FactsÑ that set forth each

605partyÓs position rather than a set of facts

613that were undisputed.

616After having a telephonic status conference

622with the parties on April 5, 2018, the

630undersigned advised the par ties as to what

638was expected from a set of stipulated facts

646and issued an Order on April 5, 2018, giving

655the parties an opportunity to submit an

662amended set of stipulated facts by April 20,

6702018.

671The Department of Transportation filed a

677unilateral set of ÐStipulated FactsÑ on

683April 20, 2018. The Petitioners filed their

690unilateral set of ÐStipulated FactsÑ on

696April 24, 2018.

699It is still unclear to the undersigned

706whether the parties agree on all of the

714facts that are material to determining:

720(a) whe ther the actions at issue were

728Ðinitiated by a state agencyÑ within the

735meaning of section 57.111(3)(b); (b) whether

741Petitioners are Ðprevailing small business

746partiesÑ within the meaning o f section

75357.111(3)(c); and (c) whether Petitioners

758are Ðsmall busi ness partiesÑ within the

765meaning of section 57.111(3)(d).

769The undersigned issued a n otice on April 30, 2018,

779scheduling the final heari ng for June 27, 2018.

788On May 18, 2018, the Department filed a ÐMotion to Dismiss

799as the Division of Administrative Hear ings Lacks Jurisdiction

808and Petitioners Are Not a Prevailing Small Business PartyÑ (Ðthe

818Motion to DismissÑ). Rather than making a case that DOAH lacks

829jurisdiction over the instant case, the DepartmentÓs arguments

837pertained to whether Petitioners could m aintain a claim for

847attorneysÓ fees under section 57.111. The undersignedÓs May 21,

8562018, Order disposing of the Motion to Dismiss stated the

866following:

867The Department argues in part that

873PetitionersÓ pursuit of attorneysÓ fees is

879premature because there has been no

885proceeding before a circuit court or DOAH

892regarding the underlying dispute between the

898parties. However, the plain language of

904section 57.111 indicates that a party can be

912entitled to attorneysÓ fees even if there

919has been no underlying procee ding before a

927circuit court or DOAH.

931The first step in this analysis is to

939determine whether the Department initiated

944an administrative proceeding.

947Section 57.111(4)(a) provides that:

951an award of attorneyÓs fees and

957costs shall be made to a

963prevail ing small business party in

969any adjudicatory proceeding or

973administrative proceeding pursuant

976to chapter 120 initiated by a

982state agency , unless the actions

987of the agency were substantially

992justified or special circumstances

996exist which would make the awar d

1003unjust.

1004( emphasis added). Section 57.111(3)(b)

1009provides in pertinent part that Ðinitiated

1015by a state agencyÑ means that the state

1023agency Ð[w]as required by law or rule to

1031advise a small business party of a clear

1039point of entry after some recognizable e vent

1047in the investigatory or other free - form

1055proceeding of the agency.Ñ

1059Contrary to the DepartmentÓs argument,

1064section 57.111 does not require that a

1071proceeding be referred to DOAH before a

1078party is entitled to attorneysÓ fees. The

1085statute merely require s that a state agency

1093initiate an administrative proceeding, and

1098the pleadings currently before the

1103undersigned indicate that the Department

1108initiated an administrative proceeding

1112because a ÐNotice of Intent to Modify

1119Driveway Connection(s)Ñ issued by the

1124Department on August 4, 2017, advised

1130Petitioners of their right to petition for a

1138formal or informal administrative hearing.

1143The Department also argues that Petitioners

1149cannot be a Ðprevailing small business

1155partyÑ because the parties have not executed

1162a settlement agreement. Section

116657.111(3)(c)2. provides in pertinent part

1171that a small business party is a Ðprevailing

1179small business partyÑ when Ð[a] settlement

1185has been obtained by the small business

1192party which is favorable to the small

1199business party o n the majority of the issues

1208which such party raised during the course of

1216the proceeding . . . .Ñ

1222A similar argument was made in Playbig

1229Therapy and Recreation Zone, LLC; Kelley H.

1236Hutto, P.T.; and Rachel Schrlepp v. Ag. for

1244Health Care Admin. , Case No. 16 - 3972F (Fla.

1253DOAH Jan. 27, 2017), and the Administrative

1260Law Judge concluded that a written

1266settlement agreement was not required in

1272order for a party to be considered a

1280Ðprevailing small business partyÑ under

1285section 57.111(3)(c)2.:

128798. AHCA argues t hat section

129357.111(3)(c)2. cannot apply to the

1298instant case because there was no

1304oral or written settlement

1308agreement between the parties.

131299. While there may not have been

1319a meeting of the minds between the

1326parties, AHCA clearly capitulated,

1330and Petiti oners clearly prevailed.

1335It would be absurd to interpret

1341the term ÐsettlementÑ in section

134657.111(3)(c)2. as requiring that

1350there be an agreement between the

1356parties. See Williams v. State ,

1361492 So. 2d 1051, 1054 (Fla.

13671986)(stating that Ð[s]tatutes, as

1371a rule, will not be interpreted so

1378as to yield an absurd result.Ñ).

1384If that were the case, agencies

1390acting without substantial

1393justification could avoid an award

1398of fees by taking unilateral

1403action to remedy a situation after

1409realizing that a small business

1414party was about to prevail.

1419Accordingly, the undersigned denied the Motion to Dismiss.

1427The undersigned convened the final hearing on June 27,

14362018. Because arrangements had not been made for a court

1446reporter, the final hearing could not proceed as sch eduled. On

1457June 29, 2018, the undersigned issued a n otice rescheduling the

1468final hearing to occur on July 25, 2018.

1476After considering a Motion for Continuance , filed on

1484July 23, 2018, the undersigned issued a n otice on July 24, 2018,

1497rescheduling the f inal hearing for August 9, 2018.

1506During the August 9, 2018, final hearing, Petitioners

1514presented the testimony of Ronald Fred Crum and Rita Sadler.

1524Petitioners did not move any exhibits into evidence.

1532Neither Michael Boxberger nor Kelli Boxberger appea red at

1541the final hearing. Counsel for Petitioners announced at the

1550outset of the final hearing that Ms. Boxberger was in North

1561Carolina in order to appear in a court proceeding unrelated to

1572the instant case. In response to a question from the

1582undersigned , PetitionersÓ counsel stated that he would not be

1591seeking a continuance.

1594The Department presented the testimony of Reid Carter

1602Johnson, Kerrie Harrell, and Rodney Chamberlain. The

1609DepartmentÓs Exhibits 1 through 5 and 9 through 11 were accepted

1620into e vidence.

1623The transcript was filed on August 21, 2018, and t he

1634parties timely submitted their p roposed f inal o rders on

1645August 31, 2018 . T he undersigned considered those filings in

1656the preparation of this Final Order.

1662FINDING S OF FACT

1666The following Findi ngs of Fact are based on the oral and

1678documentary evidence adduced at the final hearing, matters

1686subject to official recognition, and the entire record in this

1696proceeding:

1697The Parties

16991. The Department is the state agency responsible for

1708coordinating the planning of a safe, viable, and balanced state

1718transportation system that serves all regions of Florida.

1726§ 334.044(1), Fla. Stat. As part of its duties, the Department

1737regulates Ð[v]ehicular access and connections to or from the

1746State Highway System . . . in order to protect the public

1758health, safety, and welfare.Ñ £ 335.182(1), Fla. Stat.

17662. CrumÓs Service is owned by Ronald Crum and has been in

1778operation for over 50 years. It is located in Panacea, Florida,

1789adjacent to St ate Road 30/61 (ÐHighway 98 Ñ).

17983. CrumÓs Service has less than 10 employees, and

1807Mr. CrumÓs net worth is less than two million dollars .

18184. Coastal Restaurant is owned by Rita Sadler and has been

1829in her family since the 1950s. It is next to CrumÓ s Service and

1843is also adjacent to Highway 98.

18495. Coastal Restaurant has approximately seven full - time

1858employees, and Ms. SadlerÓs net worth does not exceed two

1868million dollars .

18716. Kelli Boxberger operates The Funky Fiddler located on

1880Highway 98 in Panacea. The Funky Fiddler has bee n in operation

1892since the 1950s.

18957. Driveway connections on state roads must be permitted

1904or grandfathered. § 335.1825, Fla. Stat.; Fla. Admin. Code R.

191414 - 96.011(3)(a). Because PetitionersÓ driveways were in place

1923before 1988, they are grandfathered. § 335.187(1), Fla. Stat.

1932Facts Specific to the Instant Case

19388. On April 7, 2014, the Wakulla County Board of

1948Commissioners voted unanimously to support the design and

1956construction of sidewalks and multiuse paved paths. In order to

1966further that effort, Wakulla County requested that the

1974Department fund sidewalk construction from Piney Street to

1982Jer Be Lou Boulevard in Panacea. The proposed sidewalk was

1992intended to address safety concerns associated with peopl e

2001walking along Highway 98.

20059. The Departme nt funded the sidewalk project and

2014incorporated it into a s eparate project to resurface a seven

2025mile portion of Highway 98 running through Wakulla County.

203410. The sidewalk project required the Department to

2042evaluate whether existing driveways along High way 98 needed to

2052be modified for pedestrian safety.

205711. If the Department determined that particular driveways

2065needed to be modified, then it sent written notifica tion to the

2077property owners.

207912. On August 4, 2017, the Department issued letters to

2089Mr. Crum, Ms. Sadler, and the Boxberger s referencing work on the

2101portion of Highway 98 running from the Franklin County line to

2112Boykin Road in Wakulla County. The letters stated the

2121following:

2122While developing the above - referenced

2128project, [the Department ] is required to

2135evaluate existing driveway access

2139connections and modify those which will

2145create a traffic operations or safety

2151problem. As part of this project, sidewalk

2158will be constructed between Piney Street and

2165Dickson Bay Road. The existing drivew ays

2172adjacent to the proposed construction work

2178for this project also required evaluation

2184for safety of pedestrians. The Department

2190has completed this evaluation and is

2196notifying you of its proposed action with

2203this Notice of Intent to Modify Driveway

2210Conn ection(s).

221213. The letters then state that Ð[p]ursuant to

2220Sections 334.044(14) and 335.182, Florida Statutes, the

2227Department is initiating action to alter the existing connection

2236of your property to [Highway 98] as identified on the enclosed

2247ÐDRIVEWAY DETAIL.Ñ

224914. In other words, the Department was providing notice

2258that it intended to install a sidewalk in front of CrumÓs

2269Service and Coastal Restaurant. The proposed sidewalks would

2277have modified the driveways onto the properties , but would not

2287have closed them.

229015. The DepartmentÓs proposed modification to the

2297Boxberger property involved a 39 - foot wide driveway connection

2307and a sidewalk on either side of the driveway.

231616. All of the DepartmentÓs proposed modifications

2323pertained to land complete ly with in the DepartmentÓs right - of -

2336way.

233717. The DepartmentÓs August 4, 2017, letters closed by

2346advising Mr. Crum, Ms. Sadler, and the Boxbergers that they had

235721 days to request a formal administrative hearing if they

2367disagreed with the DepartmentÓs prop osed action.

237418. Mr. Crum was concerned that the proposed sidewalk

2383would Ðtotally annihilateÑ his business. Many of his customers

2392use cars or trucks to tow boats. According to Mr. Crum, the

2404DepartmentÓs proposal would have resulted in there being

2412insu fficient space in his parking lot for vehicles towing boats.

242319. Ms. Sadler was concerned that the proposed sidewalk

2432would destroy the parking spaces in front of her restaurant.

244220. On August 17, 2017, staff members from the Florida

2452House and Senate organized a constituent meeting at a local

2462restaurant to hear concerns abo ut the resurfacing project.

247121. Mr. Crum, Ms. Sadler, a handful of constituents, two

2481legislative staff members, and Reid Carter Johnson, a government

2490affairs liaison from the Depar tment, attended the meeting .

250022. Business owners told Mr. Johnson that the proposed

2509sidewalk would impair access between thei r property and

2518Highway 98.

252023. Mr. Johnson told those present that the DepartmentÓs

2529engineers would confer with anyone who had concerns about the

2539proposed sidewalk. 2/

254224. On approximately August 18, 2017, Mr. Crum and

2551Ms. Sadler hired Ronald A. Mowrey, Esquire , to represent them in

2562this matter. On August 23, 2017, CrumÓs Service and Coastal

2572Restaurant filed petitions seeking t o challenge the DepartmentÓs

2581proposed action through forma l administrative hearings.

258825. Engineers from the Department conducted a site visit

2597with Mr. Crum, Ms. Sadler, and their attorney on August 29,

26082017, at CrumÓs Service and Coastal Restaurant. Aft er listening

2618to Mr. Crum and Ms. SadlerÓs concerns, the engineers stated that

2629they would revi ew all of the information.

263726. Engineers from the Department also met with

2645Ms. Boxberger on August 29, 2017, in order to conduct a site

2657visit pertaining to the location of T he Funky Fiddler. At that

2669time, Ms. Boxberger had not retained counsel.

267627. Ms. Boxberger was concerned that the DepartmentÓs

2684proposed modification would prevent her from displaying

2691merchandise in front of her store on the DepartmentÓs rig ht - of -

2705way. She was also concerned that the DepartmentÓs proposal

2714would deprive her busi ness of three parking spaces.

272328. On September 18, 2017, Ms. Boxberger filed a petition

2733to challenge the DepartmentÓs proposed action through a form al

2743administrative hearing.

274529. Petitioners did not hear from the Department again

2754until the Department issued each of them an ÐAmended Notice of

2765Intent to Modify Driveway Connections(s)Ñ ( Ðthe Amended

2773Notice (s) Ñ ), on November 20, 2017.

278130. The Amended Notices stated th at :

2789[ P ]ursuant to Sections 334.044(14), 335.182

2796and 335.187, Florida Statutes, as well as

2803Rules 14 - 96.011 and 14 - 96.015 Florida

2812Administrative Code, the Department has

2817reviewed the existing connection of your

2823property to [Highway 98]. Subsequent to the

2830i nitial Notice of Intent to Modify Driveway

2838Connections, the Department met with you on -

2846site on August 29, 2017 and engaged in other

2855coordination efforts with your

2859representative to consider information,

2863documents, reports and alternative

2867solutions. After taking into consideration

2872the concerns expressed in these discussions,

2878the Department has amended its plans as

2885detailed in ÐEXHIBIT AÑ.

288931. The Amended Notices indicat ed that the Department

2898decided against placing a sidewalk in front of CrumÓs Service

2908and Coastal Restaurant. 3/

291232. The DepartmentÓs Amended Notice to Ms. Boxberger

2920clarified the substance of the DepartmentÓs proposed action but

2929set forth no mater ial changes.

293533. The Amended Notices to all three Petitioners stated

2944that they could request a formal administrative hearing if they

2954disagreed with the proposed action set f orth in the Amended

2965Notices.

296634. Mr. Crum and Ms. Sadler were satisfied and did not

2977challenge the DepartmentÓs proposed action.

298235. As a result, the Department issued Fina l Orders

2992dismissing the petitions filed by Mr. Crum and Ms. Sadler.

300236. As of August 31, 2017, the Department had not disposed

3013of the petition filed by Ms. Boxberger.

3020CONCLUSIONS OF LAW

302337. DOAH has personal and subject matter jurisdiction in

3032this proc eeding pursuant to sections 57.111(4), 120.569,

3040and 120.57(1), Florida Statutes. The Administrative Law Judge

3048has final order authority in this matter. § 57.111(4)(d), Fla.

3058Stat.

305938. The Florida Legislature has found that small business

3068parties Ðmay be deterred from seeking review of, or defending

3078against, unreasonable governmental action because of the expense

3086of civil actions and administrative proceedings. Because of the

3095greater resources of the state, the standard for an award of

3106attorneyÓs fees an d costs against the state should be different

3117from the standard for an awar d against a private litigant.Ñ

3128§ 57.111(2), Fla. Stat.

313239. Accordingly, the Florida Legislature enacted

3138section 57.111 , also known as the Florida Equal Access to

3148Justice Act (Ð FEAJAÑ), to Ðdiminish the deterrent effect of

3158seeking review of, or defending against, governmental action by

3167providing in certain situations an award of attorneyÓs fees and

3177costs against the state.Ñ £ 57.111(2), Fla. Stat.

318540. Section 57.111 directs tha t unless otherwise provided

3194by law, a reasonable sum for ÐattorneyÓs fees and costsÑ shall

3205be awarded to a private litigant when all five of the following

3217predicate findings are made:

32211. An adversarial proceeding was Ðinitiated

3227by a state agency.Ñ

32312. Th e private litigant against whom such

3239proceeding was brought was a Ðsmall business

3246party.Ñ

32473. The small business party Ðprevail[ed]Ñ

3253in a proceeding initiated by a state agency.

32614. The agencyÓs actions were not

3267substantially justified.

32695. No special c ircumstances exist that

3276would make an award of fees unjust.

328341. The Department and Petitioners have stipulated that

3291Petitioners are Ðsmall business partiesÑ within the meaning of

3300section 57.111. As a result, Petitioners are entitled to award

3310of fees an d costs if they can demonstrate that: (a) the

3322Department initiated an adversarial proceeding; (b) Petitioners

3329were prevailing parties; (c) the DepartmentÓs actions were not

3338substantially justified; and (d) there are no special

3346circumstances that would mak e an award of fees and costs unjust.

3358Did the Department Initiate an Adversarial Proceeding?

336542. Section 57.111(3)(b) provides that the term Ðinitiated

3373by a state agencyÑ means that the state agency: (a) Ð[f]iled

3384the first pleading in any state or fede ral court in this stateÑ ;

3397(b) Ð[f]iled a request for an administrative hearing pursuant to

3407chapter 120Ñ ; or (c) Ð[w]as required by law or rule to advise a

3420small business party of a clear point of entry after some

3431recognizable event in the investigatory or other free - form

3441proceeding of the agency.Ñ

344543. The first two descriptions of Ðinitiated by a state

3455agencyÑ are inapplicable to the instant case. Therefore,

3463Petitioners must demonstrate that the Department was required to

3472advise them of their right to r equest a formal administrative

3483hearing. See Vause v. DepÓt of Nat . Res . , Case No. 89 - 2101F

3498(F la. DOAH May 24, 1989)(concluding that Ð[i]n proceedings under

3508Section 57.111, the Petitioner bears the initial burden of

3517proving that it is a small business part y, that it prevailed,

3529and that the underlying adjudicatory proceeding pursuant t o

3538Chapter 120 was initiated by a state agency. Once this showing

3549is made, the burden shifts to the Agency to demonstrate that its

3561actions were substantially justified or that special

3568circumstances exist which would make the award unjust.Ñ).

357644. With regard to the DepartmentÓs obligation to provide

3585notice of its intended action to Petitioners, Florida

3593Administrative Code Rule 14 - 96.011(5) provides that the

3602Department must provi de the following notice if it intends to

3613modify a grandfathered connection , such as those at issue in the

3624instant case:

3626(5) Notification Process for Modification

3631of Unpermitted Connections. Notice of the

3637DepartmentÓs intended action will be

3642provided in a ccordance with Rule Chapter 28 -

3651106, F.A.C. The DepartmentÓs action will

3657become final unless a timely petition for a

3665hearing is filed in accordance with Rule

3672Chapter 28 - 106, F.A.C. In order to be

3681timely, the petition must be filed with the

3689DepartmentÓs Cl erk of Agency Proceedings

3695within 21 days after receipt of the

3702DepartmentÓs notice, in accordance with Rule

3708Chapter 28 - 106, F.A.C.

3713(a) The Department shall give written

3719notice to the property owner, with a copy to

3728the occupant, for a grandfathered connect ion

3735if significant changes have occurred or if

3742the connection is found to cause a safety or

3751operational problem (as specified in this

3757rule chapter). The notice will identify the

3764specific information regarding the safety or

3770operational problem and request that the

3776problem be corrected or that a written

3783agreement on a schedule for the correction

3790be approved by the Department within 30 days

3798of receipt of the notice.

380345. Therefore, the Department Ð[w]as required by law or

3812rule to advise a small business part y of a clear point of entry

3826after some recognizable event in the investigatory or other

3835free - form proceeding of the agency,Ñ and the Department complied

3847with that requirement via the n otices issued on August 4, 2017.

3859Were Petitioners Prevailing Partie s?

386446. Section 57.111(3)(c) describes the circumstances in

3871which a small business party will be deemed to be a Ðprevailing

3883small business party.Ñ Section 57.111 (3)(c)2 . describes the

3892only circumstance relevant to the instant case and states a

3902small bus iness party has prevailed when Ð[a] settlement has been

3913obtained by the small business party which is favorable to the

3924small business party on the majority of the issues which such

3935party raised duri ng the course of the proceeding .Ñ

394547. Rule 14 - 96.011(4) (c ) specifies that if the Department

3957acts to modify a grandfathered connection, then the Department

3966Ðshall offer an opportunity to meet on site with the property

3977owner or designated representative.Ñ The rule further specifies

3985that the Department will consid er Ð[d]ocuments, reports, or

3994studies obtained by the property owner or lessee and provided to

4005the Department . Ñ The Department will also consider

4014Ð[a]lternative solutions proposed by the property owner.Ñ

402148. The DepartmentÓs own rule requires it to meet on - site

4033with property owners and consider alternatives to its proposed

4042action. It is fair to inf er that the Department adopted

4053r ule 14 - 96.011(4) (c) partially in an effort to avoid costly

4066and/or protracted litigation over grandfathered connections.

407249. In the instant case, the facts demonstrate that

4081Petitioners did little other than meet with Department

4089representatives during the mandatory site visits and voice their

4098concerns. Afterward, the Department unilaterally issued the

4105Amended Notices. Rather th an Petitioners using legal or other

4115means to ÐobtainÑ a settlement, the instant case is an instance

4126in which the facial intent behind r ule 14 - 96.011(4)(c) was

4138satisfied. Thus, Petitioners were not Ðprevailing parties.Ñ

4145Were the DepartmentÓs Actions ÐSubst antially Justified ?Ñ

415350. Section 57.111 provides that a party seeking an award

4163of fees and costs pursuant to the FEAJA is not entitled to an

4176award if the agency can demonstrate that its actions are

4186Ðsubstantially justified.Ñ

418851. In order to be Ðsubstan tially justified,Ñ the agencyÓs

4199actions must have had a reasonable basis in law and fact at the

4212time the action at issue was taken.

421952. The agency has the burden of proving by a

4229preponderance of the evidence that its actions were

4237Ðsubstantially justified. Ñ See DepÓt of HRS v. South Beach

4247Pharmacy , 635 So. 2d 117, 121 (Fla. 1st DCA 1994)(noting that

4258Ðonce a prevailing small business part y proves that it qualifies

4269as such under section 57.111, the agency that initiated the main

4280or underlying proceeding has the burden to show substantial

4289justification or special circumstances.Ñ); £ 120.57(1)(j), Fla.

4296Stat. (providing that Ð[f]indings of fact shall be based upon a

4307preponderance of the evidence, except in penal or licensure

4316disciplinary proceedings or except as otherwise provided by

4324statute, and shall be based exclusively on the evidence of

4334record and on matt ers officially recognized.Ñ).

434153. Section 334.044 (14 ) provides that the Department has

4351the duty Ð[t] o establish, control, and prohibit points of

4361ingress to, and egress from, the State Highway System, the

4371turnpike, and other transportation facilities under the

4378departmentÓs jurisdiction as necessary to ensure the safe,

4386efficient, and effective maintenance and operation of such

4394facilities.Ñ

439554. Section 335.1 82 provides that Ð[v ]ehicular access and

4405connections to or from the State Highway System shall be

4415regulated by the department in accordance with the provisions of

4425this act in order to protect the public health, safety, and

4436welfare.Ñ

443755. Section 335.181( 2) states:

4442It is the policy of the Legislature that:

4450(a) Every owner of property which abuts a

4458road on the State Highway System has a right

4467to reasonable access to the abutting state

4474highway but does not have the right of

4482unregulated access to such highw ay. The

4489operational capabilities of an access

4494connection may be restricted by the

4500department. However, a means of reasonable

4506access to an abutting state highway may not

4514be denied by the department, except on the

4522basis of safety or operational concerns as

4529provided in s. 335.184.

4533(b) The access rights of an owner of

4541property abutting the State Highway System

4547are subject to reasonable regulation to

4553ensure the publicÓs right and interest in a

4561safe and efficient highway system. This

4567paragraph does not authorize the department

4573to deny a means of reasonable access to an

4582abutting state highway, except on the basis

4589of safety or operational concerns as

4595provided in s. 335.184. Property owners are

4602encouraged to implement the use of joint

4609access where legally available.

461356. The legal authori ties cited above , demonstrate that

4622the Department had the legal authority, and thus a reasonable

4632basis in law, for proposing the modifications that were at

4642issue.

464357. The Department also had a reasonable basis in fact

4653because the modifications were part o f an effort to further a

4665sidewalk construction project in Panacea and to incorporate it

4674into a larger project to resurface a seven mile portion of

4685Highway 98 running through Wakulla County.

4691Are There Any ÐSpecial CircumstancesÑ That Would Make an Award

4701of Fees and Costs Unjust?

470658. In addition to demonstrating that its actions were

4715Ðsubstantially justified,Ñ a state agency can avoid paying fees

4725and costs under section 57.111 if it can demonstrate that there

4736are special circumstances that would make an aw ard of fees and

4748costs unjust. See § 57.111(4)(a), Fla. Stat. (mandating that

4757Ðan award of attorneyÓs fees and costs shall be made to a

4769prevailing small business party in any adjudicatory proceeding

4777or administrative proceeding pursuant to chapter 120 init iated

4786by a state agency, unless the actions of the agency were

4797substantially justifie d or special circumstances exist which

4805would make an award unjust.Ñ).

481059. Section 57.111 does not define the term Ðspecial

4819circumstances.Ñ However, Ðthe use of the word ÒspecialÓ

4827connotes something unusual or unique.Ñ Brown v. Bd. of

4836Psychological ExamÓr , Case No. 92 - 6307F ( Fla. August 24,

48471993)(concluding that Ðnone of these circumstances rises to a

4856level of being so special or unique as to excuse respondentÓs

4867actions.Ñ ).

486960. As noted above, the Florida Equal Access to Justice

4879Act is modeled after the Federal Equal Access to Justice Act,

4890and case law regarding the federal statute provides some

4899guidance regarding the proper interpretation of Ðspecial

4906circumstancesÑ in the state statute. For instance, federal case

4915law states that Ð[t]he EAJAÓs Òspecial circumstancesÓ exception

4923is a Òsafety valveÓ that gives the court discretion to deny

4934awards where equitable considerations dictate an award should

4942not be made.Ñ Vincent v. CommÓr of Soc. Sec. , 651 F.3d 299, 303

4955(2d Cir. 2011). See also Horton v. Barnhart , 2004 U.S. Dist.

4966LEXIS 4063, at *7 (S.D. N.Y. 2004)(noting that Ð[t]he terms

4976Òspecial circumstancesÓ and ÒunjustÓ have not been defined and

4985thus the court should be guide d by general principles of

4996equity.Ñ). However, what amounts to a Ðsafety valveÑ is

5005indistinct because federal case law also states that Ðif the

5015Òspecial circumstancesÓ exception is to function as an equitable

5024Òsafety valve,Ó its contours can emerge only o n a case - by - case

5040basis.Ñ Vincent , 651 F.3d at 303 (noting that Ð[a] prevailing

5050party can therefore be denied attorneyÓs fees under the EAJA for

5061Òspecial circumstancesÓ when his own misconduct created the

5069circumstances that led to the litigation, see Oguac huba , 706

5079F.2d at 94, and when that partyÓs contributions to the

5089litigationÓs success were Òmarginal, duplicative and

5095unnecessary,Ñ see 27.09 Acres , 43 F.3d at 771. These two

5106examples of Òspecial circumstances,Ó which illustrative, do not

5115define the excep tion.Ñ).

511961. In the instant case, the Department followed its own

5129rule, acted reasonably, and did not display the intractable

5138behavior that often leads to section 57.111 proceedings.

5146Furthermore, the Department was clearly acting in the interests

5155of public safety and was able to adequately advance that

5165interest after reevaluating the matter. As a result, special

5174circumstances would make an award of fees and cost to

5184Petitioners inequitable.

5186ORDER

5187Based on the foregoing Findings of Fact and Conclusions of

5197Law, it is ORDERED that the Petitions to Award AttorneysÓ Fees

5208and Costs filed by Michael Boxberger and Kelli Boxberger, d/b/a

5218ÐThe Funky FiddlerÑ ; Coastal Restaurant, Inc., a Florida

5226Corporation ; and CrumÓs Service, Inc. , a Florida Corporation,

5234are DE NIED.

5237DONE AND ORDERED this 30 th day of October, 2018 , in

5248Tallahassee, Leon County, Florida.

5252S

5253G. W. CHISENHALL

5256Administrative Law Judge

5259Division of Administrative

5262Hearings

5263The DeSoto Building

52661230 Apalachee Parkway

5269Talla hassee, Florida 32399 - 3060

5275(850) 488 - 9675

5279Fax Filing (850) 921 - 6847

5285www.doah.state.fl.us

5286Filed with the Clerk of the

5292Division of Administrative Hearings

5296this 30 th day of October, 2018 .

5304ENDNOTE S

53061/ Unless indicated otherwise, all statutory references wi ll be

5316to the 2017 version of the Florida Statutes.

53242/ Mr. Crum and Ms. Sadler testified that the Department was

5335unwilling to consider their concerns during the restaurant

5343meeting and that a representative from the Department

5351essentially told them to hir e an attorney.

53593/ Kerrie Harrell, a supervising engineer with the Department,

5368explained why the Department decided to move the proposed

5377sidewalk after the site meeting:

5382ALJ : Can you explain to me why [the

5391Department] changed its mind?

5395A : Sure. As part of installing a sidewalk

5404on a project, our goal is to not only

5413consider vehicles driving on our facility,

5419itÓs pedestrians, cyclists. So whenever we

5425add sidewalk, we want to put it at [a]

5434logical location. And I think the basis of

5442the limits of thi s, I mean, ideally we have

5452all the budget in the world and we construct

5461on the east and west sides of the 3R job,

5471but that wasnÓt ideal.

5475So we focus on what the CountyÓs initial

5483request is and look at the engineering

5490related to it. So we had an engineer

5498propose, put it from Piney Street to the

5506road just north of PoseyÓs which is Dickson

5514Bay Road. So when we heard the property

5522ownersÓ concerns, they see traffic coming

5528into their business more than we do, when

5536they say they have safety concerns for

5543pedestr ians with the traffic coming in, we

5551listen to that.

5554So from our standpoint, when we went back

5562and looked at the engineering reasons why we

5570were putting in the sidewalk is to move

5578pedestrians from one logical location to

5584another, Woolley Park became more l ogical as

5592a connection to Mound Street than Piney

5599Street because there is really nothing past

5606Piney Street. Coastal Restaurant is down

5612there, CrumÓs is down there. They donÓt

5619want the sidewalk in front of them, that was

5628evidenced by the discussions we ha d with

5636them. So the logical generator is Woolley

5643Park. So thatÓs why we stopped at Mound

5651Street and terminated the sidewalk there.

5657If something happens in the future, maybe a

5665sports complex or something gets built to

5672the south, yes, you definitely look at

5679adding that sidewalk length in the future.

5686ALJ : So it sound like what you are saying

5696is that you initially Î the Department

5703initially planned to put the sidewalk in

5710front of Coastal and CrumÓs, and then based

5718on what you heard from Coastal and CrumÓs,

5726you decided, okay, letÓs put it somewhere

5733else; is that a fair statement?

5739A : I wish it were as simple as listening to

5750concerns of the property owner. ThatÓs part

5757of it.

5759ALJ : That was part of it?

5766A : That was part of the consideration we

5775made. We ha d to go back and look at the

5786engineering, because it truly became from an

5793engineering standpoint why do we need

5799sidewalk where we are proposing it and where

5807is the most logical place. So we changed

5815our designs based on engineering reasons,

5821not necessarily unhappy property owners.

5826ALJ : So let me try Î - so would it be fair

5839to say that in light of the concerns raised

5848by the citizens and the fact that it made

5857engineering sense, you went, okay, we can

5864put the sidewalk somewhere else for now

5871anyway unless, li ke you said, a sports

5879complex gets built. I guess is it fair to

5888say based on the concerns from Coastal and

5896CrumÓs and because there was an alternative

5903that made engineering sense, you decided to

5910put the sidewalk somewhere else; is that

5917fair?

5918A : Yes. An d we also knew we had a multiuse

5930path project funded at that point. We knew

5938we could get pedestrians down the west side

5946of U.S. 98 north of that, so it became Î as

5957long as we have something to get them north

5966and south in this area, the priority then

5974becom es that west side project and that next

5983project being installed. ItÓs a combination

5989of all the factors at play.

5995ALJ : So I guess CrumÓs and Coastal, the

6004reasons would apply equally to them because

6011they are right next to each other?

6018A : Yes, sir.

6022COPIES FURNISHED:

6024Richard E. Shine, Esquire

6028Department of Transportation

6031Mail Station 58

6034605 Suwannee Street

6037Tallahassee, Florida 32399

6040(eServed)

6041Ronald A. Mowrey, Esquire

6045Mowrey Law Firm, P.A.

6049515 North Adams Street

6053Tallahassee, Florida 32301 - 1111

6058( eServed)

6060Douglas Dell Dolan, Esquire

6064Department of Transportation

6067Mail Station 58

6070605 Suwannee Street

6073Tallahassee, Florida 32399 - 0458

6078(eServed)

6079Andrea Shulthiess , Clerk of Agency Proceedings

6085Department of Transportation

6088Haydon Burns Building

6091605 Suawa nnee Street, Mail Stop 58

6098Tallahassee, Florida 32399 - 0390

6103(eServed)

6104Erik Fenniman, General Counsel

6108Department of Transportation

6111Haydon Burns Building

6114605 Suawannee Street, Mail Stop 58

6120Tallahassee, Florida 32399 - 0390

6125(eServed)

6126Michael J. Dew, Secretary

6130Department of Transportation

6133Haydon Burns Building

6136605 Suawannee Street, Mail Stop 57

6142Tallahassee, Florida 32399 - 0390

6147(eServed)

6148NOTICE OF RIGHT TO JUDICIAL REVIEW

6154A party who is adversely affected by this Final Order is

6165entitled to judicial review pu rsuant to section 120.68, Florida

6175Statutes. Review proceedings are governed by the Florida Rules

6184of Appellate Procedure. Such proceedings are commenced by

6192filing the original notice of administrative appeal with the

6201agency clerk of the Division of Admini strative Hearings within

621130 days of rendition of the order to be reviewed, and a copy of

6225the notice, accompanied by any filing fees prescribed by law,

6235with the clerk of the District Court of Appeal in the appellate

6247district where the agency maintains its h eadquarters or where a

6258party resides or as otherwise provided by law.

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Date
Proceedings
PDF:
Date: 07/12/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 06/27/2019
Proceedings: Agency Final Order
PDF:
Date: 04/12/2019
Proceedings: Transmittal letter from Claudia Llado forwarding the two-volume Transcript, along with Joint Exhibits, and the Department of Transportation's Motion to Dismiss as the Division of Administrative Hearings Lacks Jurisdiction and Petitioners are not a Prevailing Small Business Party, to the agency.
PDF:
Date: 10/30/2018
Proceedings: DOAH Final Order
PDF:
Date: 10/30/2018
Proceedings: Final Order (hearing held August 9, 2018). CASE CLOSED.
PDF:
Date: 08/31/2018
Proceedings: Proposed Final Order filed.
PDF:
Date: 08/31/2018
Proceedings: Order Granting Attorney Fees to Petitioners (Proposed Final Order; filed in Case No. 18-000281F).
PDF:
Date: 08/31/2018
Proceedings: Order Granting Attorney Fees to Petitioners (Proposed Final Order; filed in Case No. 18-000280F).
PDF:
Date: 08/31/2018
Proceedings: (Proposed Final Order) Order Granting Attorney Fees to Petitioners filed.
PDF:
Date: 07/24/2018
Proceedings: Order Granting Continuance and Rescheduling Hearing (hearing set for August 9, 2018; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 07/23/2018
Proceedings: Motion for Continuance (filed in Case No. 18-000281F).
PDF:
Date: 07/23/2018
Proceedings: Motion for Continuance (filed in Case No. 18-000280F).
PDF:
Date: 07/23/2018
Proceedings: Motion for Continuance filed.
PDF:
Date: 07/03/2018
Proceedings: Motion in Response to Petitioners' Updated Affidavit filed.
PDF:
Date: 06/29/2018
Proceedings: Order Continuing and Rescheduling Hearing (hearing set for July 25, 2018; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 06/28/2018
Proceedings: Status Report filed.
PDF:
Date: 06/25/2018
Proceedings: Updated Affidavit (filed in Case No. 18-000281F).
PDF:
Date: 06/25/2018
Proceedings: Updated Affidavit (filed in Case No. 18-000280F).
PDF:
Date: 06/25/2018
Proceedings: Updated Affidavit filed.
PDF:
Date: 06/22/2018
Proceedings: Amended Joint Pre-hearing Stipulation filed.
PDF:
Date: 06/20/2018
Proceedings: Notice of Appearance filed.
PDF:
Date: 06/18/2018
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 05/21/2018
Proceedings: Order Denying the Department of Transportation's Motion to Dismiss.
PDF:
Date: 05/18/2018
Proceedings: Department of Transportation's Motion to Dismiss as the Division of Administrative Hearings Lacks Jurisdiction and Petitioners' are not a Prevailing Small Business Party filed.
PDF:
Date: 04/30/2018
Proceedings: Petitioners' Amended Stipulated Facts (filed in Case No. 18-000281F).
PDF:
Date: 04/30/2018
Proceedings: Petitioners' Amended Stipulated Facts (filed in Case No. 18-000280F).
PDF:
Date: 04/30/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/30/2018
Proceedings: Notice of Hearing (hearing set for June 27, 2018; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 04/30/2018
Proceedings: Order Denying Motion to Amend Order of Pre-hearing Instructions to File Memorandum of Law.
PDF:
Date: 04/24/2018
Proceedings: Petitioners' Stipulated Facts (filed in Case No. 18-000281F).
PDF:
Date: 04/24/2018
Proceedings: Petitioners' Stipulated Facts (filed in Case No. 18-000280F).
PDF:
Date: 04/24/2018
Proceedings: Petitioners' Stipulated Facts filed.
PDF:
Date: 04/20/2018
Proceedings: Department of Transportation's Stipulated Facts filed.
PDF:
Date: 04/05/2018
Proceedings: Order Canceling Hearing and Requiring an Amended Set of Stipulated Facts (parties to advise status by April 20, 2018).
Date: 04/05/2018
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 04/05/2018
Proceedings: Notice of Filing (Affidavits; filed in Case No. 18-000281F).
PDF:
Date: 04/05/2018
Proceedings: Notice of Filing (Affidavits; filed in Case No. 18-000280F).
PDF:
Date: 04/05/2018
Proceedings: Notice of Filing Affidavits filed.
PDF:
Date: 04/05/2018
Proceedings: Notice of Telephonic Status Conference (status conference set for April 5, 2018; 10:30 a.m.).
PDF:
Date: 03/29/2018
Proceedings: Joint Stipulated Facts filed.
PDF:
Date: 03/14/2018
Proceedings: Order Regarding the Motion to Amend Order of Pre-Hearing Instructions to File Memorandum of Law.
Date: 03/14/2018
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 03/02/2018
Proceedings: Motion to Amend Order of Pre-hearing Instructions to File Memorandum of Law filed.
PDF:
Date: 02/26/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/26/2018
Proceedings: Notice of Hearing (hearing set for April 11, 2018; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 02/19/2018
Proceedings: Order of Consolidation (DOAH Case Nos. 18-0279F, 18-0280F, 18-0281F).
PDF:
Date: 02/15/2018
Proceedings: Petitioner's Request for Evidentiary Hearing filed.
PDF:
Date: 02/14/2018
Proceedings: Notice of Telephonic Status Conference (status conference set for February 19, 2018; 10:00 a.m.).
PDF:
Date: 02/06/2018
Proceedings: Response to Initial Order filed.
PDF:
Date: 02/05/2018
Proceedings: Notice of Appearance (Richard Shine) filed.
PDF:
Date: 01/16/2018
Proceedings: Initial Order.
PDF:
Date: 01/16/2018
Proceedings: Affidavit filed.
PDF:
Date: 01/16/2018
Proceedings: Petition to Award Attorney Fees and Costs filed.

Case Information

Judge:
G. W. CHISENHALL
Date Filed:
01/16/2018
Date Assignment:
01/16/2018
Last Docket Entry:
07/12/2019
Location:
Tallahassee, Florida
District:
Northern
Agency:
Other
Suffix:
F
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (9):

Related Florida Rule(s) (2):