20-002557FC Doug Williams And Sherry Williams vs. City Of Coral Springs Police Officers' Pension Fund Status: Closed Recommended Order on Friday, February 19, 2021.

Summary: Petitioners have not demonstrated entitlement to costs and reasonable attorney's fees as "prevailing parties" pursuant to section 185.05(5), Fla. Stat.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D OUG W ILLIAMS A ND S HERRY W ILLIAMS ,

Petitioners ,

vs. Case No. 20 - 2557FC

C ITY OF C ORAL S PRINGS P OLICE O FFICERS Ô

P ENSION F UND ,

Respondent .

/

R ECOMMENDED O RDER

On November 30, 2020, a duly - noticed hearing was held by Zoom video

conference at locations in Coral Gables, Coral Springs, and Tallahassee,

Florida , before Robert S. Cohen, an Administrative Law Judge (ÑALJÒ)

ass igned by the Division of Administrative Hearings (ÑDOAHÒ) .

A PPEARANCES

For Petitioner: Brandon J. Hechtman, Esquire

Wicker, Smith, O Ô Hara, McCoy & Ford, P.A .

2800 Ponce De Leon Boulevard, Suite 800

Coral Gables, Florida 33134

For Resp ondent: Kenneth R. Harrison, Esquire

Sugarman & Susskind, P.A.

100 Miracle Mile, Suite 300

Coral Gables, Florida 33134

Bonni Spatara Jensen, Esquire

Klausner, Kaufman, Jenson & Levinson

7080 Northwest 4th Street

Plantation, Florida 33317

S TATEMENT OF T HE I SSUE

The issue to be determined is whether Petitioners are entitled to an award

of reasonable prevailing party attorney Ô s fees and costs stemming from a

prior consolidated action before A LJ F. Scott Boyd, DOAH Case Nos. 16 - 3298

and 16 - 3302, pursuant to s ection 185.05 , Florida Statutes. Before the final

hearing, the p arties stipulated to an amount of reasonable prevailing party

attorney Ô s fees and costs if th e undersigned determines that Petitioners are

entitled to an award of reasonable prevailing party attorney Ô s fees and costs

stemming from that prior action before ALJ Boyd.

P RELIMINARY S TATEMENT

The p arties jointly offered 14 exhibits that were admitted into evidence,

without objection. No witnesses were cal led to testify by the parties. The

underlying factual history of this dispute is set forth in the Recommended

Order by A LJ Boyd in DOAH Case Nos. 16 - 3298 and 16 - 3302. This dispute

comes for determination after a series of writs of certiorari were granted i n

favor of Petitioners, Doug and Sherry Williams ( ÑPetitionersÒ or

ÑWilliamsesÒ), the o rders having been admitted into evidence as Exhibits 11

through 14. After a continuance, th e final hearing was conducted on

November 30, 2020, by Zoom video conference. The one - volume T ranscript of

the final hearing was electronically filed on January 7, 2021. Both p arties

timely filed proposed recommended orders that were duly considered in the

preparation of this Recommended Order.

References to the Florida Statutes ar e to the 2020 codification .

F INDINGS OF F ACT

1. The City of Coral Springs is a municipality in Broward County, Florida.

It exercises broad power pursuant to a rticle VIII, section 2 of the Florida

Constitution, and the Municipal Home Rule Powers Act, c hapt er 166, Florida

Statutes .

2. The City Commission of the City of Coral Springs (ÑCommissionÒ) may

create other offices, boards, or commissions to administer the affairs of the

city and may grant them powers and duties.

3. The Commission has adopted the Cora l Springs Police Officers Ô Pension

Plan (Ñthe PlanÒ), which is amended from time to time by ordinance and is set

forth in sections 13 - 5 through 13 - 17 of the Code of Ordinances of the City of

Coral Springs.

4. The Plan is administered by the City of Coral S prings Police Officers Ô

Pension Fund Board of Trustees (Ñ Board Ò) , the powers of which are set forth

in sections 13 - 13 through 13 - 15 of the Code of Ordinances of the City of Coral

Springs.

5. The Plan is a local - law defined pension plan created pursuant to

c hapter 185.

6. In February 2016 , the Board adopted a policy to allow for the

suspension of pension benefits of members who were charged with crimes

specified at section 112.3173 , Florida Statutes , and whose benefit payments

had equaled or exceeded their c ontributions to the Plan.

7. T he Williamses are retired polic e officers whose pension benefits had

fully vested at the time of the enactment of the aforementioned suspension

policy .

8. In February 2016, t he Board sought to suspend Petitioners Ô benefits

und er the newly - adopted policy because Petitioners had been charged with

crimes specified in section 112.3173 and the benefit payments made to the m

had exceeded their contributions to the plan.

9. Petitioners requested a formal hearing to challenge the autho rity of the

Board to adopt the suspension policy.

10. Petitioners Ô benefits were never suspended at any time during the

pendency of this suspension matter.

11. The Board contracted with DOAH to conduct the formal hearing under

the authority of s ection 120. 65(6) , Florida Statutes.

12. D OAH assigned A LJ Boyd to the prior consolidated action , who issued

pre - hearing instructions requiring a statement of all issues. The issue of

attorney Ô s fees was not included by the parties.

13. ALJ Boyd conducted the formal h earing on September 30, 2016 , and

October 10, 2016.

14. On November 18, 2016, A LJ Boyd issued a R ecommended O rder

finding that the Board did not have the authority to adopt the policy nor

apply it to Petitioners .

15. The R ecommended O rder made no mention o f awarding attorney Ô s fees

or costs.

16. Nether Petitioners nor the Board filed exception s to the R ecommended

O rder.

17. Petitioners raised the issue of fees in a letter to the Board dated

December 2, 2016.

18. Counsel for Petitioners appeared at a hearing held before the Board in

December 2016 and sought fees as set forth in the December 2 , 2016, letter.

19. The Board adopted ALJ Boyd Ô s R ecommended O rder in toto on

January 3, 2017.

20. The Board also denied Petitioners Ô request for a hearing regarding an

a ward of attorney Ô s fees.

21. On January 13, 2017, Petitioners sought an award of attorney Ô s fees by

filing with DOAH a Verified Motion for Prevailing Party Attorney Ô s Fees and

Costs.

22. On March 1, 2017, ALJ Boyd entered an O rder dismiss ing Petitioners Ô

m otion for fees , stating he lacked jurisdiction to hear the issue of fees . That

O rder was not appealed.

23. Prior to the f inal h earing in this matter , Petitioners successfully

petitioned the Seventeenth Judicial Circuit Court to compel the Board to

grant th em a hearing on entitlement to the fees and to quash the O rder

denying fees for violation of due process . Petitioners then successfully

defe nded an appeal of that O rder by the Board to the Fourth District Court of

Appeal and a motion for rehearing thereon. Petitioners are not seeking fees

for these extraordinary writ actions as these efforts do not fall under

c hapters 185 or 120.

24. The parties stipulated that Ñthe Williamses prevailed in challenging

the Board Ô s authority to create a policy suspending the benefits.Ò

25. The Board never applied its proposed suspension policy to Petitioners .

26. Petitioners continue to receive their benefits to this day.

27. Criminal charges against Petitioners remained pending at the time of

the hearing in this matter .

28. P etitioners are only seeking entitlement here to a n attorney Ô s fee and

costs award for their successful challenge of the suspension policy .

C ONCLUSIONS OF L AW

29 . DOAH has jurisdiction to hear this case and render a recommended

order under section 120.65(6 ), which provides:

The division is authorized to provide

administrative law judges on a contract basis to

any governmental entity to conduct any hearing

not covered by this section.

30. The contracting of DOAH with other Ñgovernmental entitiesÒ does

not r equire that the provisions of chapter 120 necessarily apply to the

proceedings. Local governments contracting with DOAH frequently have local

procedures for the proceedings adjudicated by DOAH ALJs. Some of these are

adopted by ordinance; others by collect ive bargaining agreements, where

applicable; and still others by local governing boards such as code

enforcement boards, and pension plan boards, to name a few.

31. ALJ Boyd Ô s Order Granting Motion to Dismiss in DOAH Case

No. 17 - 0 599F (the fee case initi ated by Petitioners) following the underlying

matter, DOAH Case Nos. 16 - 3298 and 16 - 3302, held that DOAH was without

jurisdiction to entertain a motion for fees since the jurisdiction of DOAH had

ended with the issuance of ALJ Boyd Ô s Recommended Order and no motion or

request for fees had been filed with DOAH prior to that O rder Ô s issuance. See

Dep Ô t of Mgmt. Servs., Div. of Ret. v. City of Wilton Manors , Case No. 11 -

2224F (Fla. DOAH July 11, 2011) ( per curiam ), aff Ô d sub nom . , Dep Ô t [sic] of

Admin. Hrgs . v . City of Wilton Manors , 88 So. 3d 953 (Fla. 4th DCA 2012). In

DOA H Case No. 17 - 0 599F, Petitioners emphasized that an agency has not

rendered a final order until it is Ñfiled with the agency clerk.Ò Hill v. Div. of

Ret. , 687 So. 2d 1376, 1377 (Fla. 1st DCA 1997). However, the jurisdiction of

DOAH depends not upon the date of the final order, but upon the date of the

recommended order , at which time the referring entity (here, the Board)

regains jurisdiction . Procacci Commercial Realty, Inc. v. HRS , 690 So. 2d 603,

608 - 09 (Fla. 1st DCA 1997) (referring agency regains jurisdiction upon entry

of recommended order). As ALJ Boyd noted in his Order Granting Motion to

Dismiss in DOAH Case No. 17 - 0599F:

Petitioners Ô further argument that it had no basis

to file a mo tion for fees prior to the Recommended

Order and subsequent determination of a

prevailing party by Respondent is also rejected.

While the outcome is unknown, the basis for

entitlement to fees under a prevailing party

provision is known from the outset. See Advanced

Chiropractic & Rehab. Ctr. v. United Auto. Ins. Co. ,

140 So. 3d 529, 536 (Fla. 2014) (distinguishing

section 627.428 fees from statutes providing fees

based on events that occur during the cause of

action [such as fees claimed under section 57.10 5] ).

There was no barrier erected by ALJ Boyd in the underlying proceeding to

filing a motion for attorney Ô s fees prior to entry of the Recommended Order

and relinquishment of jurisdiction to the Board. In his O rder, ALJ Boyd could

have retained jurisdict ion to consider the award of attorney Ô s fees had such a

request been timely made. Further, a s noted below, this matter does not even

involve an Ñagency , Ò as that is defined in section 120.52(1).

32. After a series of circuit and appellate court proceedings determined

that Petitioners were entitled to a hearing on their motion for attorney Ô s fees,

this proceeding ensued. Other than the fact that Petitioners were granted a

right to the hearing in this matter, nothing has changed since 2017.

33. Despite this m atter arising as the result of state court proceedings

ordering that a hearing be held on the issue of attorney Ô s fees, that does not

negate the fact that a motion for fees was required prior to issuance of the

Recommended Order in the underlying case , pre ferably in time to allow the

ALJ to make required findings, or to reserve jurisdiction for a possible

subsequent hearing to do so. Palacios v. Dep Ô t of Bus. & Prof Ô l Reg. , Case

Nos. 99 - 4163F and 99 - 4164F (Fla. DOAH Nov. 20, 2000); Sell a rs v. Broward

C ty . S ch. Bd. , Case No. 97 - 3540F (Fla. DOAH Sept. 25, 1997). However, in

deference to the circuit court and Fourth District Court of Appeal Ô s finding s

that this matter must be brought before the undersigned for hearing on

PetitionersÔ request for prevailing part y attorney Ô s fees , the following

conclusions of law explain why such request is both premature and explains

why Petitioners are not even prevailing parties entitled to make such a

request at this time .

3 4 . The Williamses continue to receive benefits while the parties await the

outcome of the criminal proceeding that may or may not trigger the

application of section 112.3173 at some future date. As such, when the y

prevailed in challenging the Board Ô s authority to create the 2016 policy

related to the suspens ion of benefits, this did not mean they prevailed on the

question of the forfeiture of their benefits. Consequently, they are not

prevailing parties under section 185.05(5).

3 5 . As the subject criminal proceedings are ongoing and no forfeiture by

the Board has been initiated under section 112.3173, any determination on

prevailing party status in such a forfeiture proceeding is premature. Common

sense dictates that Petitioners are not able to seek fees in a forfeiture

proceeding unless , at some time in the f uture , one is initiated and they

prevail in that proceeding .

3 6 . As to the issue of whether this matter is governed by chapter 120, the

Administrative Procedure Act ( Ñthe ActÒ), t he Board i s not an ÑagencyÒ for

purposes of the Act , as defined at section 12 0.52(1).

3 7 . Hearings before the Board related to the status of members Ô benefits

are quasi - judicial proceedings. The ministerial act of an entity contracting

with DOAH , however, does not , in and of itself , convert a municipal pension

plan into an entity d eemed an ÑagencyÒ for purposes of chapter 120. See First

Quality Home Care, Inc. v. All . for Aging, Inc. , 14 So. 3d 1149 ( Fla. 3d DCA

2009) (contractor of state agency is not an agency for the purposes of

c hapter 120).

38. Section 185.05(5) states:

For an y municipality, chapter plan, local law

municipality, or local law plan under this chapter:

* * *

(5) In any judicial proceeding or administrative

proceeding under chapter 120 brought under or

pursuant to the provisions of this chapter, the

preva iling party shall be entitled to recover the

costs thereof, together with reasonable attorney Ô s

fees.

39. The action brought by Petitioners and heard by ALJ Boyd was not an

Ñadministrative proceeding under chapter 120.Ò The proceeding retains its

status a s a municipal pension plan proceeding not subject to chapter 120. See,

e.g., Booker Creek Pres., Inc. v. Pinellas Planning Council , 433 So. 2d 1306

(Fla. 2d DCA 1983). The fact that the Board Ô s hearing was conducted

pursuant to section 120.65(6) (contracti ng with DOAH for ALJ services)

cannot , in and of itself, be a basis for a prevailing party attorney Ô s fee award

in favor of Petitioners relying on section 185.05(5). See Palm Bch . Gardens

Police Pension Fund B d. of Trs . v. Beers , 842 So. 2d 911 , 913 - 14 (Fl a. 4th

DCA 2003).

40. Section 112.3173 requires the forfeiture of pension benefits if a

member of a municipal pension plan is convicted of a specified offense. If any

such proceedings were to be initiated by the Board at some future date, then ,

for purpose s of the applicability of section 185.05(5) , such forfeiture

proceedings would not be Ñbrought under or pursuant to the provisions ofÒ

chapter 185 for purposes of triggering the prevailing party provisions in

section 185.05(5). Instead, such proceedings wo uld be brought Ñ under or

pursuant to Ò section 112.3173.

41. Petitioners Ô challenge to the Board Ô s suspension policy was not a

forfeiture proceeding under section 112.3173 , nor was it a proceeding under

or pursuant to chapter 185. A LJ Boyd Ô s November 18, 20 16 , Recommended

Order construed and discuss ed the powers of the Board to adopt a policy

interpreting section 112.3173 under the Code of Ordinances of the City of

Coral Springs and several provisions of Florida Statutes. No benefits were

addressed by th at O rder and no provision of chapter 185 is discussed or even

mentioned by the ALJ .

42. Petitioners heavily rely on a 2014 Florida Supreme Court case , Parker

v. B oar d of Trustees of City Pension Fund for Firefighters & Police Officers in

City of Tampa , 149 So. 3d 1129, 1134 (Fla. 2014) , to support their claim for

attorney Ô s fees here . Parker is distinguishable in that it was a judicial

proceeding brought specifically under the benefits provisions of chapters 175

and 185 , Florida Statutes . U nlike in Parker , Peti tioners Ô case here did not

involve a judicial proceeding or a chapter 120 proceeding under chapter 185.

Parker was brought as a class action that included a request for attorney Ô s

fees , which w as granted by the C ourt. By contrast, the challenge here to the

authority of the Board to adopt the suspension policy was not brought under

or pursuant to the provisions of chapter 185 . T herefore, Petitioners Ô claim did

not trigger the prev ailing party provisions in section 185.05(5) .

43. Based upon the foregoing, Pet itioners have not demonstrated

entitlement to costs and a reasonable attorney Ô s fee as a prevailing party

pursuant to section 185.05(5).

R ECO MMENDATION

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

R ECOMMENDED that the Board enter a final order denying Petitioners Ô

request for prevailing party attorney Ô s fees and costs .

D ONE A ND E NTERED this 19th day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2021 .

C OPIES F URNISHED :

Brandon J. Hechtman, Esquire Bonni Spatara Jensen, Esquire

Wicker, Smith, O Ô Hara, McCoy & Ford, P.A. Klausner, Kaufman, Jensen & Levinson

2800 Po nce de Leon Boulevard , Suite 800 7080 Northwest 4th Street

Coral Gables, Florida 33134 Plantation, Florida 33317

Pedro Herrera, Esquire Kenneth R. Harrison, Esquire

Sugarman & Susskind, P.A. Sugarman & Susskind, P.A.

100 Miracle Mile , Suite 300 100 Miracle Mile , Suite 300

Coral Gables, Florida 33134 Coral Gables, Florida 33134

Gina Orlando, Administrator

City of Coral Springs Police Officers Ô

Pension Fund

9551 West Sample Road

Coral Springs, Florida 33065

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that wil l issue the Final Order in this

case.