20-002515F 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 Friday, June 12, 2020.

Summary: Attorney's fees and costs assessed in favor of Petitioner and against Respondent pursuant to section 120.595(3), Florida Statutes, Florida Rule of Appellate Procedure 9.400(a), and a Joint Stipulation in an existing rule challenge.

For Respondent: Megan Kachur, Esquire

Department of Business and Professional Regulation,

2 601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

S TATEMENT O F T HE I SSUE S

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

pursuant to section 120.595(3), Florida Statutes (2019), and Florida Rule of

Appellate Procedure 9.400; and if so, the amount.

P RELIMINARY S TATEMENT

On December 21, 2018, MB Doral filed a Petition Challenging 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 Tobacco’s (Department) “ABT Form 6017 Application and

Inspection Report for Off - Premises Storage Permit” (ABT Form 6017)

constituted an u n promulgated rule. On January 23, 2019, the Department

filed a Motion to Bifurcate and Stay Proceedings, in which it stated 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 challeng e) 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, pursua nt to section 120.56(4)(b ) ;

(2) bifurcated DOAH Case No. 18 - 6768RX, so that the parties could 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

The undersigned conducted a final hearing on MB Doral’s existing rule

challenge, and issued a F inal O rder on February 21, 2019, which concluded

that rule 61A - 4.020 was a valid exercise of delegated legislative authority.

MB Doral appealed the Final Order to the First Dist rict Court of Appeal,

Case No. 1D19 - 0820. On April 27, 2020, the First District Court of Ap peal

issued an opinion that reversed the F inal O rder and concluded that rule 61A -

4.020 was an invalid exercise of delegated legislative authority. MB Doral,

LLC, d/ b/a Martinibar v. Dep’t of Bus. & Prof’l Reg., Div. of Alcoholic Bev. &

Tobacco, 2020 WL 1987120 (Fla. 1st DCA April 27, 2020).

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

May 22, 2020, seeking an award of attorneys’ fees and co sts in the existing

rule challenge and subsequent appeal, pursuant to section 120.595(3) and Florida Rule of Appellate Procedure 9.400. On June 4, 2020, the Department

filed a Notice of Filing of Joint Stipulation for Attorneys’ Fees and Costs

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

jointly request entry of an order directing Respondent to pay Petitioner the sum of $24,000.00 (TWENTY - FOUR THOUSAND AND 00/100 DOLLARS) in

attorneys’ fees and costs[.]”

1 The Department engaged in rulemaking that ultimately resulted, in October 2019, in

amendments to r ule 61A - 4.020 that promulgated ABT Form 6017. 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 cost s pursuant to section 120.595(4).

On December 3, 2019, MB Doral filed a Motion for Attorneys’ Fees and Costs, seeking an award of attorneys’ fees and costs incurred in the unadopted rule challenge pursuant to section 120.595(4)(b). On February 26, 2020, th e undersigned, in DOAH Case No. 19 - 6579F,

entered a Final Order that approved a joint stipulation between the parties concerning

attorneys’ fees and costs in that unadopted rule challenge.

The Division of A dministrative Hearings (Division) opened this separate

“fee” case for the purpose of address ing attorneys’ fees and costs. 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, MB Doral filed a Petition Challenging Validity

of Existing Rule 61A - 4.020 and Determination Regarding Unadopted Rule, in

DOAH Case No. 18 - 6768RX.

2. The undersigned bifurcated the unadopted rule challenge and

conducted a final hearing on the existing rule challenge on January 24, 2019.

On February 21, 2019, the undersigned entered a final order that concluded

that rule 61A - 4.020 was a valid exercise of delegated legislative authority.

3. MB Doral appealed the final order to the First Dist rict Court of Appeal.

On April 27, 2020, the First District Court of Ap peal issued an O pinion that

reversed the Final Order and concluded that rule 61A - 4.020 was an invalid

exercise of delegated legislative authority. MB Doral, LLC, d/b/a Martinibar

v. Dep ’t of Bus. & Prof’l Reg., Div. of Alcoholic Bev. & Tobacco, 2020 WL

1987120 (Fla. 1st DCA April 27, 2020).

4. On May 22, 2020, MB Doral filed a Motion for Attorneys’ Fees and

Costs (Motion), seeking an award of attorneys’ fees and costs incurred in the exi sting rule challenge and subsequent appeal, pursuant to section

120.595(3), Florida Statutes, and Florida Rule of Appellate Procedure 9.400.

5. On June 4, 2020, the Department filed a Notice of Filing Joint

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

Stipulation for Attorneys’ Fees and Costs.

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

a final order assessing the sum of $24,000.00 for attorneys’ fees and costs in the existing rule challenge and subsequ ent appeal, which the undersigned

bifurcated from the unadopted rule challenge in DOAH Case No. 18 - 6768RX.

7. The Joint Stipulation further states that the parties agree that the

F inal O rder direct the Department to seek immediate approval for payment

with in 30 days of the F inal O rder, and that the undersigned retain

jurisdiction to enforce the terms of the F inal O rder.

C ONCLUSIONS O F L AW

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

pursuant to section 120.595.

9. MB Doral seeks att orneys’ fees and costs in the existing rule challenge

pursuant to section 120.595(3), which provides:

If the appellate court or administrative law judge

declares a rule or portion of a rule invalid pursuant

to s. 120.56(3) or (5), a judgment or order shall be

rendered against the agency for reasonable costs

and reasonable attorney’s fees, unless the agency demonstrates that its actions were substantially

justified or special circumstances exist which would

make the award unjust. An agency’s actions are “sub stantially justified” if there was a reasonable

basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the

proceedings, the appellate court or administrative

law judge shall award reasonable costs and reasonable a ttorney’s fees against a party if the

appellate court or administrative law judge determines that a party participated in the

proceedings for an improper purpose as defined by

paragraph (1)(e). No award of attorney’s fees as

provided by this subsection sha ll exceed $50,000.

10. MB Doral also seeks costs incurred in its successful appeal, pursuant

to Florida Rule of Appellate Procedure 4.000(a).

2

2 The undersigned notes that it does not appear that Petitioner se eks attorneys’ fees

incurred for its successful appeal. The undersigned also notes that it does not appear that

Petitioner filed a motion for attorneys’ fees on appeal, pursuant to Florida Rule of Appellate

Procedure 9.400(b).

11. 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.

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

undersigned assesses the sum of $24,000 .00 in attorneys’ fees and costs in the

existing rule challenge and appeal, 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 is

O RDERED that:

A. Respondent, Department of Business an d Professional Regulation,

Division of Alcoholic Beverages and Tobacco, shall pay Petitioner, MB Doral,

LLC, d/b/a MartiniBar, the sum of $24,000.00, made payable directly t o M B

Doral, LLC, and provided to MB 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 of the date of this Final Order.

D ONE A ND O RDERED this 12 th day of June, 2020 , in Tallahassee, Leon

County, Florida.

R OBERT J. T ELFER III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 2 th day of June, 2020.

C OPIES F URNISHED :

Megan Kachur, Esquire

Department of Business and Professional Regulation

2601 Blai r S tone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Michael Martinez, Esquire

GreenSpoon Marder

Suite 530

215 South Monroe Street

Tallahassee, Florida 32399

(eServed)

Halsey Beshears, Secretary

Department of Business and Professional Regulation

2601 Blair S tone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Sterling Whisenhunt, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

2601 Bla ir s tone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ra y Treadwell, General Counsel

Office of General Counsel

Department of Business and Professional Regulation

2601 Blair S tone 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 commenced 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 dis trict where the agency maintains its headquarters

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