19-001057F Grabba-Leaf, Llc vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed DOAH Final Order on Friday, March 1, 2019.

Summary: Attorney's fees/costs assessed for administrative hearing and appeal per parties' stipulation for successful unadopted rule challenge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRABBA - LEAF, LLC,

Petitioner,

vs. Case N o. 19 - 1057F

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF ALCOHOLIC BEVERAGES

AND TOBACCO,

Respondent.

_______________________________/

FINAL ORDER

T his case arises from an unadopted rule challenge and

subsequent appeal, in which the appellate court determined that

the challenged agency statement was an unadopted rule. Th is

proceeding, to determine and assess attorneysÓ f ees and costs to

be paid by Respondent to Petitioner , has been assigned to

Elizabeth W. McArthur, Administrative Law Judge of the Division

of Administrative Hearings (DOAH) . 1/ No hearing is necessary,

because the parties have agreed to the amount to be as sessed.

APPEARANCES

For Petitioner: Gerald J. Donnini II, Esquire

Jonathan W. Taylor, Esquire

Moffa, Sutton, & Donnini, P.A.

Suite 930

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

For Respondent: Elizabeth A. Teegen, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The amount of atto rneysÓ fees and costs to be assessed

against Respondent, to be paid to Petitioner pursuant to section

120.595(4) , Florida Statutes, and the First District Court of

AppealÓs Order of Remand .

PRELIMINARY STATEMENT

Following the First District Court of Appeal Ós mandate

issued in Grabba - Leaf, LLC v. Department of Business and

Professional Regulation , Case No. 1D16 - 4273 , Grabba - Leaf, LLC

(Grabba - Leaf or Petitioner ), filed PetitionerÓs Motion to Set

AttorneysÓ Fees and Costs (Motion) . The M otion was filed on

Feb ruary 11, 2019, in DOAH Case No. 16 - 3160RU, the underlying

unad opted rule challenge proceeding.

The next day, February 12, 2019, Grabba - Leaf f iled

PetitionerÓs Notice of Withdrawal of Motion to Set AttorneysÓ

Fees and Costs. Grabba - Leaf also filed a Notic e of Filing, to

which it attached a Joint Stipulation for AttorneyÓs Fees and

Costs (Stipulation) , executed by counsel for Grabba - Leaf and

counsel for Respondent, Department of Business and Professional

Regulation (Department or Respondent) . These Notices were also

filed in the underlying unadopted rule challenge proceeding .

T he Stipulation includes the following: ÐThe parties

jointly request entry of an order directing the department to pay

petitioner the sum of $150,000.00 in attorneyÓs fees and

costs[. ]Ñ Stipulation, ¶ 7.c. 2 /

DOAH opened this separate ÐfeeÑ case for the purpose of

addressing attorneysÓ fees and costs . This Final Order is being

issued on the basis of the partiesÓ Stipulation, which renders a

hearing unnecessary .

FINDING S OF FACT

Base d on the partiesÓ Stipulation, the following facts are

found:

1. On June 8, 2016, Petitioner filed a Petition to

Determine Invalidity of Agency Statements (Petition), pursuant to

section 120.56(4), Florida Statutes. In its Petition, Petitioner

also sough t reasonable trial - level attorneys Ó fees and costs

under section 120.595. 3/

2. By Final Order dated August 26, 2016, the Administrative

Law Judge dismissed the P etition, concluding that the challenged

agency statement did not meet the definition of a rule under

chapter 120. Grabba - Leaf, LLC v. DepÓt of Bus. & ProfÓl Reg. ,

Case No. 16 - 3160RU (Fla. DOAH Aug. 26, 2016).

3. The Final Order was appealed to the First District Court

of Appeal in Grabba - Leaf, LLC v. Department of Business and

Professional Regula tion , Case No. 1D16 - 4273. In the appeal,

Grabba - Leaf moved for appellate fees and costs pursuant to

section 120.595 .

4 . On November 6, 2018, the First District Court of Appeal

reversed the Final Order, and held that the challenged agency

statement consti tute s an unadopted and unenforceable rule.

Grabba - Leaf, LLC. v. DepÓt of Bus. & ProfÓl Reg. , 257 So. 3d 1205

(Fla. 1st DCA 2018).

5 . Also on November 6, 2018, the First District Court of

Appeal issued an Order grant ing Grabba - LeafÓs motion for

appellat e attorneyÓs fees and costs under section 120.595, and

remand ing the matter to the lower tribunal with instructions to

assess the amount (Order of Remand) .

6 . On November 27, 2018, the M andate issued. The matter is

now pending at DOAH on remand from the First District Court of

Appeal to assess the amount of appellate attorneysÓ fees to

Grabba - Leaf , as well as on PetitionerÓs request for attorneysÓ

fees and costs for the administrative hearing, made in its

unadopted rule challenge petition .

7 . PetitionerÓ s Motion to Set AttorneysÓ Fees and Costs was

filed on February 11, 2019. The M otion represented that the

parties had been trying to reach a settlement as to both the

request for trial - level attorneysÓ fees and costs and the

appellate attorneysÓ fees and costs ordered by the First District

Court of Appeal. Grabba - Leaf represented that although it

believed that the parties had reached an agreement as to the

total amount, the written agreement had not been executed by

Respondent. Accordingly, Grabba - Leaf a sked that a hearing be

held to determine attorneysÓ fees and costs for the trial level

and the appeal. Attached to the M otion was an affidavit

attesting to the attorneysÓ fees and costs for both the

administrative hearing and the appeal, documented by rec ords

attached to the affidavit .

8 . The next day, on February 12, 2019, Grabba - Leaf filed

PetitionerÓs Notice of Withdrawal of Motion to Set AttorneysÓ

Fees and Costs . Petitioner also filed PetitionerÓs Notice of

Filing to which the partiesÓ S tipulation w as attached .

9 . By the Stipulation, Petitioner and Respondent agree to

the entry of a final order assessing the sum of $150,000.00 for

attorneysÓ fees and costs for both the trial level and appeal, to

be paid by the Department to Grabba - Leaf within 60 day s of entry

of the final order.

10 . The agreed amount for fees and costs set forth in the

Stipulation is generally consistent with the affidavit and

records attached to PetitionerÓs Motion to Set AttorneysÓ Fees

and Costs (later withdrawn) , albeit in the c ontext of a

c ompromise by both parties to avoid the expense and risk

associated with litigating the attorneysÓ fees and costs matter.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter purs uant to the

section 120.595 and the Order of Remand .

1 2 . Petitioner sought attorneysÓ fees and costs in the

underlying unadopted rule challenge pursuant to s ection

120.595(4 ) , which provides in pertinent part :

(a) If the appellate court or administrative

law judge determines that all or part of an

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

that the agency must immediately discontinue

reliance on the statement and any

substantially similar statement pursuant to

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

entered against the agency for reasonable

costs and reasonable attorneyÓs fees, unless

the agency demonstrates that the statement is

required by the Federal Government to

implement or retain a delegated or approved

program or to meet a condition to rec eipt of

federal funds.

(b) . . . AttorneysÓ fees and costs under

. . . paragraph (a) shall be awarded only

upon a finding that the agency received

notice that the statement may constitute an

unadopted rule at least 30 days before a

petition under s. 120 .56(4) was filed and

that the agency failed to publish the

required notice of rulemaking pursuant to

s. 120.54(3) that addresses the statement

within that 30 - day period.

1 3 . Petitioner has met the requirements in section

120.595(4)(b), and is e ntitled t o attorneysÓ fees and costs for

the administrative hearing under section 120.595(4)(a) , to be

assessed against Respondent and paid to Petitioner.

14. Petitioner has also been awarded appellate attorneysÓ

fees and costs for successfully appealing the Final Order issued

in DOAH Case No. 16 - 3160RU. As provided in the Order of Remand,

PetitionerÓs entitlement has already been decided; the only

remaining task is to assess the amount.

1 5 . Based on the findings above, the sum of $150,000.00 in

attorneysÓ fees a nd costs , for both the administrative hearing

and the appeal , is a ssessed against the Department to be paid to

Grabba - Leaf within 60 days of the date of this Order , in

accordance with the Stipulation .

ORDER

Based on the foregoing Findings of Fact and Concl usions of

Law, it is ORDERED that :

1. Respondent, Department of Business and Professional

Regulation , shall pay Petitioner, Grabba - Leaf, LLC, the sum of

$150,000.00 in attorneys Ó fees and costs, made payable directly

to Grabba - Leaf, LLC, and provided to G rabba - Leaf, LLC, in care of

Moffa, Sutton, & Donnini, P.A.

2. Respondent, Department of Business and Professional

Regulation, shall seek immediate approval of payment, and shall

render payment within 60 days of the date of this Order.

DONE AND ORDERED t his 1st day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of March , 2019 .

ENDNOTE S

1/ The Administrative Law Judge who heard and decided the

unad opted rule challeng e has retired.

2 / Th e partiesÓ joint request was not immediately discovered

because it was buried in the Stipulation , which was attached to

PetitionerÓs Notice of Filing that did not indicate any action

was being requested , and because it was filed simul taneously with

PetitionerÓs notice that it was withdrawing its Motion to set

attorneyÓs fees and costs . The joint request would have been

more apparent had the Stipulation been attached to a j oint m otion

filed in substitution for PetitionerÓs Motion as th e vehicle to

request that action be taken.

3/ The request for attorneysÓ fees and costs was made under

section 120.595(4)(a), which is quoted in the Petition . Attached

as Exhibit G to the Petition was the notice provided to

Respondent more than 30 days before the petition was filed that

the statement may constitute an unadopted rule, to demonstrate

compliance with the condition precedent in section 120.595(4)(b)

to an award of attorneysÓ fees and costs under section

120.595(4)( a ) .

COPIES FURNISHED :

Gerald J. Donnini II , Esquire

Moffa, Sutton, & Donnini, P.A.

100 West Cypress Creek Road , Suite 930

Fort Lauderdale, Florida 33309

(eServed)

Jonathan W. Taylor, Esquire

Moffa, Sutton, & Donnini, P.A.

100 West Cypress Creek Road , Suite 930

Fort Lauderd ale, Florida 33309

(eServed)

Alison Parker , Deputy General Counsel

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Robin Smith, Deputy General Counsel

Department of Business and

Pro fessional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Tom Thomas, Deputy General Counsel

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Elizabeth A. T eegen, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Halsey Beshears, Secretary

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed )

Sterling Whisenhunt, Acting Director

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of t he

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the a gency maintains its headquarters or where a party resides or

as otherwise provided by law.