19-005210F Lee Lightsey vs. Florida Fish And Wildlife Conservation Commission Status: Closed DOAH Final Order on Tuesday, March 31, 2020.

Summary: Notice of intended agency action is not a paper filed in a "proceeding." Therefore no fees available under ?120.569(2)(e) for Notice of Intent allegedly issued for an improper purpose.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L EE L IGHTSEY ,

Petitioner ,

vs. Case No. 19 - 5210F

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

F INAL O RDER

This cause comes before the undersigned on a motion for award of

attorney' s fees and costs filed by Petitioner, Lee Lightsey.

A PPEARANCES

For Petitioner: Bert J. Harris, Esquire

Swaine, Harris & Wohl, P.A.

401 Dal Hall Boulevard

Lake Placid, Florida 33852

For Respondent: Bridget Kelly McDonnell, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Joseph Yauger Whealdon, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Sharmin Royette Hibbert, Esquire

Florida Fish and Wildlife Conserva tion Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

S TATEMENT O F T HE I SSUE

Is an Agency' s notice of its intended decision a pleading or a paper filed in

a proceeding co nducted pursuant to section 120.569(2)(e), Florida

Statutes(2019)? 1

P RELIMINARY S TATEMENT

This attorney's fees 2 matter began with three petitions of Mr. Lightsey ,

each requesting a formal administrative hearing to challenge the denial by

Respondent, Flori da Fish and Wildlife Conservation Commission

(Commission) , of three license applications. The disputes were about the

Commission's denial of a Hunt Preserve License (DOAH Case No. 18 - 5428), a

Game Farm License (DOAH Case No. 19 - 3187), and a Blanket Hunt Re serve

License (DOAH Case No. 19 - 1298). On joint motions of the parties,

jurisdiction of Case numbers 19 - 3187 and 19 - 1298 was relinquished to the

Commission. Consequently, this matter involves only the fees motion filed in

Case number 18 - 5428.

The parties e ventually settled the licensing dispute. They agreed to sever

the attorney' s fees and costs dispute for resolution by the Division of

Administrative Hearing s (Division) , if necessary . The facts material to the

initial legal issues that the fees motion pres ents are not in dispute.

Mr. Lightsey seeks fees under section 120.569(2)(e). 3 The undersigned

rendered an O rder requiring the parties to file memoranda relevant to

specific threshold issues. The O rder required each party to file a

memorandum that , among other things :

(a) identifies each document Petitioner maintains is

a basis for granting relief under section

120.569(2)(e), Florida Statutes (2018);

1 All citations are to the 2019 codification of the Florida Statutes unless otherwise noted. The

2018 statutes are identical.

2 This Order will some times refer to attorney ' s fees and costs collectively as fees or attorney ' s

fees.

3 His motion also seeks fees under section 120.595(1). A separate order disposes of that claim.

(b) addresses the question of whether each

document identified as required by (a) is a

pleading, motion, or other paper filed in this

"proceeding" as used in section 120.569(2)(e);

(c) analyzes the meaning of "filed in the proceeding"

as used in section 120.569(2)(e), including whether

Respondent's Notice of Denial is a document filed

in this proceeding [.] .

The parties timely filed memoranda. They have been considered in the

preparation of this Final O rder. Mr. Lightsey ' s memorandum did not

specifically identify any document that he maintained was a basis for

granting relief under section 120.569(2) (e) , othe r than Respondent's Amended

Notice of Denial . 4

F INDINGS O F F ACT

1. The Commission denied an application by Mr. Lightsey for issuance of a

Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended

Notice), signed by Major Rob Beaton, Divis ion of Law Enforcement, advised

Mr. L i ghtsey that the Commission intended to deny his application .

2. The Amended Notice i nclud ed this dispositive paragraph: " Due to the

facts stated above, pursuant to 68 - 1.010, F.A.C, your application for a HPL

has been d enied. We are processing your application fee for a refund, and you

sh ould receive it within 21 days." The Amended Notice also advised

Mr. Lightsey of his right to request a hearing to challenge the intended

decision.

3. Mr. Lightsey challenged the propos ed denial and requested a formal

administrative hearing. Mr. Lightsey brought his challenge under section

120.57(1), which creates a right to a formal hearing to dispute a proposed

agency action . The Commission referred the matter to the Division for

4 Any claims based on papers other than the Amended Notice are deemed abandone d since

the memorandum does not specifically identify any other papers.

assig nment of an Administrative Law Judge and conduct of the hearing.

4. The parties settled the licensing dispute before the hearing . Their

settlement agreement provided for the Commission issuing each of the denied

licenses. The parties' agreement also provi ded for severing the attorney's fees

and costs claim and leaving it pending for the Division to resolve if the

parties could not agree. The order closing the file in th is case severed the fees

and costs claim and reserved jurisdiction over it . The parties could not agree.

The division re - opened the fees case as DOAH Case No. 19 - 5210F. This

proceeding followed.

C ONCLUSIONS O F L AW

Jurisdiction

5. Sections 120.569 and 120.57 grant the Division jurisdiction over the

issues in and parties to this proceeding.

Se ction 120.569(2)(e)

6. Section 120.569(2)(e) provides for sanctions to be imposed during

proceedings at the Division for filings made for improper purposes. It states:

All pleadings, motions, or other papers filed in the

proceeding must be signed by the pa rty, the party's

attorney, or the party' s qualified representative.

The signature constitutes a certificate that the

person has read the pleading, motion, or other

paper and that, based upon reasonable inquiry, it is

not interposed for any improper purpose s, such as

to harass or to cause unnecessary delay, or for

frivolous purpose or needless increase in the cost of

litigation. If a pleading, motion, or other paper is

signed in violation of these requirements, the

presiding officer shall impose upon the per son who

signed it, the represented party, or both, an

appropriate sanction, which may include an order

to pay the other party or parties the amount of

reasonable expenses incurred because of the filing

of the pleading, motion, or other paper, including a

r easonable attorney ' s fee.

7. The statute requires the presiding officer to impose an appropriate

sanction which may include payment of expenses incurred because of the

pleading , including reasonable attorney' s fees. This means that an order

resolving a cl aim under section 120.569(2)(e) is a final order , not a

recommended order.

8. Mr. Lightse y maintains that the Commission' s notice advising that it

was denying his license application is a pleading, motion, or other paper filed

in th is proceeding and that t he Commission filed it for an improper purpose.

Determining whether the statute permits Mr. Lightsey's claim for fees and

costs requires determining what is "the proceeding." If the proceeding means

the entire licensure pro cess starting with Mr. Lightsey' s application, the

statute may authorize him to seek fees and costs before the Commission. It is

worth noting that the Administrative Law Judge would not be the presiding

officer authorized to impose sanctions for events that occurred at the

Commission, inc luding the Amended Notice . If "the proceeding" means the

case litigated before the Division after the Commission referred the dispute

to the Division, the statute does not authorize Mr. Lightsey to recover fees

based upon claims about the Amended Notice .

9. Mr. Lightsey cites no cases to support his claim to fees under this

section. He relies upon two arguments. The first is that, " If the nature of the

papers and other documents served by the Commission pertaining to the

DOAH proceedings do not constitute the type of paper described in s ection

120.569(2)(e), Florida Statutes, then no proceeding under 120.569 or 120.57

will qualify." The argument is flawed. Parties file many pleadings, motions,

or papers in the course of litigating administrative disputes at the Division.

Discovery motions, motions to dismiss, motions in limine, and proposed

recommended orders are a few examples. The docket in Case No. 18 - 5428

reflects many filings by both parties in the proceeding while it was pending at

the Division.

10. I ssuance of the Amended Notice i s only a statement of an agency' s

proposed action. The notice is issued by and filed at the agency. It is one of

m any steps possible in an agency' s investigation or review process. Other

steps, many of which generate document s, include requests for additional

information, requests for clarification, and rejection of documents. T he

disagreement only becomes a "proceeding" at the Division if an affected

citizen or business requests a hearing. Accepting Mr. Lightsey' s argument

th at the Amended Notice is a paper filed in a proceeding would mean that

every other paper an agency generates in the process of reviewing a license or

permit application is a paper filed in a proceeding that may give rise someday

to a right to recover attor ney' s fees and costs from the agency at the Division.

11. Mr. LightseyÔs argument i s inconsistent with the statute' s recitation of

the sorts of papers that give rise to a claim f or fees. The statute provides:

" The signature constitutes a certificate that the person has read the pleading,

motion, or other paper and that, based upon reasonable inquiry, it is not

interposed for any improper purposes, such as to harass or to cause

unnecessary delay, or for frivolous purpose or needless incr ease in the cost of

litigation." These are factors that manifest in litigation , not in the preceding

administrative review and formulation of proposed action. For example, there

can be no " needless inc rease in the cost of litigation" until there is litigation.

And there is no litigation until a party seeks an administrative hearing.

Similarly, the statute, taken as a whole, plainly creates a means to manage

conduct during litigation , not to punish conduct preceding it.

12 . Chapter 120 does not define "proceeding." Consequently , the

dictionary definition is persuasive. Sch. Bd. v. Survivors Charter Sch., Inc. ,

3 So. 3d 1220, 1233 (Fla. 2009). The Merr iam - Webster Dictionary defines

"proceeding" as a legal action. https://www.merriam -

webster.com/dictionary/proceeding (last viewed March 24, 2020). This is

consistent with the statement in Florida Adminis t rative Code Rule 28 -

106. 1 01 that the rules for decisions determining substantial interests apply

in "proceedings." The administrative review and decision on an application

does not b ecome a legal action until the affected party invokes the procedural

rights created by c hapter 120 and requests a hearing. A notice of intended

decision is the last step in the administrative review, not a step in the

Division " proceedin g."

13. Mr. Lights ey argues that the notice of proposed action triggers every

proceeding under c hapter 120. That is inco rrect. It is the affected party' s

request for a hearing under section 120.569 that triggers the proceeding.

Absent a request for hearing, the proposed act ion becomes final agency action

without any proceeding involving litigation .

14 . Accepting Mr. Lightsey' s argument gives rise to the absurd result that

a regulated citizen or business may recover fees from an agency for any

document generated during any i nvestigation or review. Mr. Lightsey's

argument would apply in decision - making processes that do not have a

"presiding officer," which the statute re lies upon to impose sanctions. A

"presiding officer" is an agency head, administrative law judge, or other

person authorized to conduct administrative hearings or proceedings. Fla.

Admin. Code R. 28 - 106.102. This interpretation conflicts with the well -

established principle that tribunals should avoid interpretations of statutes

that lead to absurd results. Murr ay v. Mariner Health , 994 So. 2d 1051 (Fla.

2008).

15 . Mr. Lightsey' s argument for a broad interpretation of "proceeding"

would also result in an interpretation of the statute that directly conflicts

with the principle that statutes perm itting the recover y of attorney' s fees

should be strictly construed because they are in derogation of the common

law. Pepper's Steel & Alloys, Inc. v. United States , 850 So. 2d 462 (Fla. 2003).

16. Mr. Lightsey' s memorandum subliminally rev eals what the

" proceeding" means , by referring to his requests for a formal proceeding .

These are requests made after the Amended Notice issued. Thus, his

memorandum acknowledges that his Election of Rights requesting a formal

hearing commenced the proceeding.

17 . Mr. Lightsey' s second a rgument is that the provisions of

section 57.111 , Florida Statutes, providing for an award of costs and fees

against an agency should be incorporated into s ection 120.569(2). His

argument is about what sorts of pleadings and papers would justify a fees

awa rd. It does not address the dispositive issue of what is a "proceeding."

Section 57.111 provides for fee claims by small business parties against

agencies required to provide a " clear point of entry [to requ est an

administrative hearing]." The sta tute impl ements the Legislature' s judgment

that certain persons are at a disadvantage in disputes with an agency

because of a disparity in resources. It applies in proceedings "initiated by a

state agency" and limits the right to recover fees to enti ties fitting th e

definition of "small business party." Section 57.111 is a plain statement by

the Legislature about when and why parties may recover fees and costs in

actions " initiated, " as defined b y statute for purposes of that statute , by a

state agency. But that is not the statute that Mr. Lightsey 's motion

advances. 5

18. Section 120.569(2)(e) does not authorize Mr. Lightsey t o recover

attorney' s fees and costs.

D ISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law,

Petitioner' s Motion for Fee s and Costs under section 120.569(2)(e), Florida

Statutes, is D ENIED .

5 That statute limits the amount of fees and costs to $50,000.00.

D ONE A ND O RDERED this 3 1st day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

J OHN D. C. N EWTON , II

Administrative Law Judge

Division of Ad ministrative 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 3 1st day of March , 2020 .

C OPIES F URNISHED :

Bert J. Harris, Esquire

Swaine, Harris & Wohl, P.A.

401 Dal Hall Boulevard

Lake Placid, Florida 33852

(eServed)

Bridget Kelly McDonnell, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Joseph Yauger Whealdon, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Sharmin Royette Hibbert, Esquire

Florida Fish and Wildlife Conservati on Commission

620 South Meridian Street

Tallahassee, Florida 32399

(eServed)

Eric Sutton, Executive Director

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Em ily Norton, General Counsel

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final O rder 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

ag ency clerk of the Division of Administrative Hearings within 30 days of

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

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate distr ict where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.