19-006579F Mb Doral, Llc, D/B/A Martini Bar vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed DOAH Final Order on Wednesday, February 26, 2020.

Summary: Attorneys' fees and costs assessed in favor of Petitioner and against Respondent pursuant to section 120.595(4), Florida Statutes, and a joint stipulation in an unadopted rule challenge.

For Respondent: Megan Kachur, Esquire

Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco

2601 Blair Stone Road

Tallahassee, Florida 32399

S TATEME NT O F T HE I SSUES

Whether Petitioner, M.B. Doral, is entitled to attorneys’ fees and costs

pursuant to section 120. 595(4), Florida Statutes (2019); and , if so, the

amount.

P RELIMINARY S TATEMENT

On December 21, 2018, Petitioner MB Doral filed a Petition Ch allenging

Validity of Existing Rule 61A - 4.020 and Determination Regarding Unadopted

Rule. With respect to the unadopted rule challenge, MB Doral contended that

the Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Toba cco’s (Department) “ABT Form 6017

Application and Inspection Report for Off - Premises Storage Permit” (ABT

Form 6017), constituted an umpromulgated rule. On January 23, 2019, the Department filed a Motion to Bifurcate and Stay Proceedings, in which it

state d that the Department had commenced the rulemaking process to revise

Florida Administrative Code R ule 61A - 4.020 (which was the subject of the

existing rule challenge) to, inter alia , promulgate ABT Form 6017. On

January 25, 2019, t he undersigned entered an Order Granting Respondent’s

Motion to Bifurcate and Stay Proceedings, which: (1) stayed MB Doral’s

unadopted rule challenge pending the proposed rulemaking, p ursuant to

section 120.56(4)(b) ; (2) bifurcated DOAH Case Number 18 - 6768RX, so that

the parties c ould proceed on MB Doral’s existing rule challenge; and (3)

ordered the Department to provide the undersigned with a status report within 30 days.

1

1 The undersigned conducted a final hearing on MB Doral’s existing rule challen ge, and

issued a Final Order on February 21, 2019 , that concluded that rule 61A - 4.020 was a valid

Thereafter, the Department provided six separate status reports on the

proposed rulemaking for rule 61A - 4.02 0, spanning a period of time b etween

February through October 2019. In its Sixth Status Report on Proposed

Rulemaking for Rule 61A - 4.020, Florida Administrative Code, filed

October 11, 2019, the Department indicated the amendments to rule 61A -

4.020, which included promulgating ABT Form 6017, would become effective

October 16, 2019. On October 24, 2019, the undersigned entered an Order to

Show Cause, noting that a new version of rule 61A - 4.020 became effective on

October 16, 2019 , that promulgated ABT Form 6017, and ordering the parties

to show cause why the undersigned should not dismiss MB Doral’s remaining

unadopted rule challenge. After reviewing MB Doral’s response to the Order

to Show Cause, the undersigned, on November 6, 2019, entered an Order

Dismis sing Unadopted Rule Challenge and Retaining Jurisdiction, which

dismissed MB Doral’s remaining unadopted rule challenge, and retained

jurisdiction to consider a request for attorneys’ fees and costs pursuant to

section 120.595(4)(b).

MB Doral then filed a Motion for Award of Attorneys’ Fees and Costs on

December 3, 2019, and on December 10, 2019, the Department filed its Response in Opposition to Petitioner’s Motion for an Order Awarding

Attorneys’ Fees and Costs. The undersigned thereafter noticed this ma tter for

final hearing for February 21, 2020. On February 11, 2020, the Department filed a Notice of Filing of Joint Stipulation for Attorneys’ Fees and Costs

(Joint Stipulation). The Joint Stipulation includes the following: “The parties

jointly request e ntry of an order directing Respondent to pay Petitioner the

sum of $7,500.00 (SEVEN THOUSAND FIVE HUNDRED AND 00/100 DOLLARS) in attorneys’ fees and costs[.]”

exercise of delegated legislative authority. M.B. Doral has appealed the Final Order to the

First District Court of Appeal, Case Number 1D19 - 0820, which remai ns pending.

The Division opened this separate “fee” case for the purpose of address ing

attorneys’ fees and c osts. The undersigned issues this Final Order based on

the Joint Stipulation, which renders a hearing unnecessary.

F INDINGS O F F ACT

1. On December 21, 2018, Petitioner MB Doral filed a Petition

Challenging Validity of Existing Rule 61A - 4.020 and Determina tion

Regarding Unadopted Rule, in DOAH Case Number 18 - 6768RX.

2. On January 25, 2019, t he undersigned entered an Order Granting

Respondent’s Motion to Bifurcate and Stay Proceedings, which stayed MB

Doral’s unadopted rule challenge pending the proposed rul emaking that

would promulgate ABT Form 6017.

3. On October 16, 2019, amendments to rule 61A - 4.020 became effective,

which promulgated ABT Form 6017.

4. On November 6, 2019, the undersigned entered an Order Dismissing

Unadopted Rule Challenge and Retaining Jurisdiction, which dismissed MB

Doral’s remaining unadopted rule challenge and retained jurisdiction to consider a request for attorneys’ fees and costs , pursuant to section

120.595(4)(b).

5. On December 3, 2019, MB Doral filed a Motion for Attorneys’ Fee s and

Costs (Motion), seeking an award of attorneys’ fees and costs incurred in the

unadopted rule challenge pursuant to section 120.595(4)(b ) . The Motion

alleges that MB Doral advised the Department, in wri ting on at least seven

occasions prior to filing the rule challenge petition, and beginning on May 19,

2015, that the Department’s failure to adopt ABT Form 6017 constituted an

unadopted rule. The Motion also alleges that the Department did not file a notice of rulemaking until January 28, 2019. The Moti on further alleges that

the Department has never alleged that the federal government required ABT Form 6017 to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds.

6. On December 10, 2019, the Department f iled its Response in Opposition

to Petitioner’s Motion for an Order Awarding Attorneys’ Fees and Costs.

7. On February 11, 2020, the Department filed a Notice of Filing Joint

Stipulation for Attorneys’ Fees and Costs, which included the Joint

Stipulation f or Attorneys’ Fees and Costs.

8. The Joint Stipulation states that the Department agrees to the entry of

a final order assessing the sum of $7,500.00 for attorneys’ fees and costs in

the unadopted rule challenge, which the undersigned bifurcated from the

e xisting rule challenge in DOAH Case N o. 18 - 6768RX, which is currently

pending before the First District Court of Appeal in Case Number 1D19 - 0820.

9. The Joint Stipulation further states that the parties agree that this

F inal O rder should direct the Departm ent to seek immediate approval for

payment within 30 days of th is Final Order , and that the undersigned retain s

jurisdic tion to enforce the terms of this F inal O rder.

C ONCLUSIONS O F L AW

10. The Division ha s jurisdiction over the parties and subject matter

pursuant to section 120.595.

11. MB Doral seeks attorneys’ fees and costs in the bifurcated unadopted

rule challenge pursuant to section 120.595(4)(b), which provides:

(b) Upon notification to the administrative law

judge provided before the final hearing that the

agency has published a notice of rulemaking under

s. 120.54(3)(a), such notice shall automatically operate as a stay of proceedings pending

rulemaking. The administrative law judge may

vacate the stay for good cause shown. A stay of proceedings u nder this paragraph remains in effect

so long as the agency is proceeding expeditiously

and in good faith to adopt the statement as a rule.

The administrative law judge shall award

reasonable costs and reasonable attorney’s fees accrued by the petitioner p rior to the date the

notice was published, unless the agency proves to

the administrative law judge that it did not know

and should not have known that the statement was an unadopted rule. Attorneys’ fees and costs under

this paragraph … 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. 1 20.54(3) that addresses the statement within that

30 - day period. Notice to the agency may be

satisfied by its receipt of a copy of the s. 120.56(4)

petition, a notice or other paper containing

substantially the same information, or a petition filed pursuan t to s. 120.54(7). An award of

attorney’s fees as provided by this paragraph may not exceed $50,000.

12. Based on the Joint Stipulation, MB Doral and the Department have

agreed to resolve the issue of entitlement and amount of attorneys’ fees and

costs as alleged in the Motion.

13. Neither the Joint Stipulation, nor this Final Order, shall have any

effect or relevance regarding the February 21, 2019 , Final Order entered in

the existing rule challenge in DOAH Case N o. 18 - 6768RX, which is currently

pending b efore the First District Court of Appeal in Case Number 1D19 - 0820.

14. Based on the findings above, and the Joint Stipulation, the

undersigned assesses the sum of $7,500, in attorneys’ fees and costs in the unadopted rule challenge, which the undersigned b ifurcated from the existing

rule challenge, against the Department , to be paid to MB Doral within 30

days of the date of this Final Order, in accordance with the Joint Stipulation.

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it i s

O RDERED that:

A. Respondent, Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco, shall pay Petitioner, M.B. Doral,

LLC, d/b/a MartiniBar, the sum of $7,500.00, made payable directly to M.B.

Doral, LLC, and pro vided to M.B. Doral, LLC, in care of Greenspoon Marder,

P.A.

B. Respondent, Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco, shall seek immediate approval

of payment, and shall render payment within 30 days o f the date of this Final

Order.

D ONE A ND E NTERED this 26 th day of February, 2020, in Tallahassee, Leon

County, Florida.

R OBERT J. T ELFER III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 26 th day of February, 2020.

C OPIES F URNISHED :

Megan Kachur, Esquire

Department of Business and Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Michael Martinez, Esquire

GreenSpoon Marder

215 South Monroe Street , Suite 530

Tallahassee, Florida 32399

(eServed)

Ray Treadwell, General Counsel

Office of the General Counsel

Department of Business and Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Halsey Beshears, Secretary

Department of Business and Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Sterling Whisenhunt, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399 - 2202

(eServed)

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

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

commenc ed by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

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