22-001562F John Wilson vs. Florida Fish And Wildlife Conservation Commission Status: Closed DOAH Final Order on Wednesday, October 12, 2022.

Summary: Petitioners did not prove that Respondent either filed the Administrative Complaints for an improper purpose or participated in the underlying license revocation proceeding for an improper purpose. Petitioners' Motions for Attorney's Fees are DENIED.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P ATSY B RADLEY , A S P ERSONAL

R EPRESENTATIVE OF T HE E STATE OF

D REW K AISER ,

Petitioner ,

vs. Case No. 22 - 1561F

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent.

/

J OHN W ILSON ,

Petitioner,

vs. Case No. 22 - 1562F

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent.

/

F INAL O RDE R

A duly - noticed final hearing was held in th e s e case s on August 8 , 20 2 2, in

Tallahassee, Florida ; and on August 22, 2022 , via Zoom Conference , before

Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of

Administrative Hearings.

A PPEAR ANCES

For Petitioners: Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryan t & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

For Respondent: Rhonda E. Parnell, Esquire

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

S TATEMENT OF T HE I SSUE

Whether Petitioners are entitled to attorneyÔs fees and costs, pursuant to

section s 120.569(2)(e) and 120.595(1) , Florida Statutes, relating to the

underlying permit revocation action, Case Nos. 21 - 2139 and 21 - 2140.

P RELIMINARY S TATEMENT

By letters dated June 4, 2021, the Florida Fish and Wildlife Conservation

Commission (ÑCommissionÒ) notified Drew Kaiser and John Wilson o f the

CommissionÔs intent to revoke, and deny renewal of, their individual

authorized gopher tortoise agent permits (ÑAgency Action lettersÒ). The

Agency Action letters informed them of their right to request a hearing to

contest the CommissionÔs decision within 21 days of receipt of the letters.

On June 25, 2021, Mr. Kaiser and Mr. Wilson each filed a Petition for

Formal Administrative Hearing with the Commission contesting the

revocation and non - renewal of their licenses. On July 7, 2021, the

Commission forwarded the Petitions to the Division of Administrative

Hearings (ÑDivisionÒ) for assignment of an Administrative Law Judge to

conduct a disputed fact - finding hearing. The cases were assigned C ase

Nos. 21 - 2139 and 21 - 2141 and assigned to the undersigned, who consolidated

them for final hearing.

On September 3, 2021, Petitioners filed separate Motions for AttorneyÔs

Fees, Expenses , and Costs (ÑMotionsÒ) pursuant to both sections 120.569(2)(e)

and 120.595(1).

The undersigned conducted a final hearing on th e consolidated cases on

October 12 through 14, 2021, and, on February 14, 2022, issued a

Recommended Order recommending dismissal of the Agency Action letters.

In the Recommended Order, the undersigned reserved jurisdiction to rule on

the Motions following entry of the Final Order in the consolidated cases,

provided that renewed Motions were filed within 30 days of entry of the Final

Order.

The Commission entered its Final Order on May 16, 2022, adopting the

undersignedÔs Recommended Order with the excepti on of one footnote, and

dismissed the Agency Action letters. Petitioners filed their Renewed Motions

on May 24, 2022.

The Renewed Motions were consolidated for final hearing, which was

conducted in person on August 8 , 2022 , and continued via Zoom confere nce on

August 22, 2022 . At the final hearing, Petitioner , John Wilson , testified on

his own behalf and Petitioner Ô s Exhibits 2, 8 , 9, 12, 29, 32, 43 through 45,

and 48 were admitted into evidence. Respondent offered the testimony of

Claire Sundquist - Blunde n, the leader of the CommissionÔs wildlife diversity

conservation section, and stipulated to the introduction of all of the admitted

exhibits in the underlying license revocation case, which were officially

recognized by the undersigned.

The proceedings w ere not recorded, by a court reporter or otherwise, thus

no transcript of the proceedings is available. At the conclusion of the final

hearing, the parties requested an extension of time Ð 30 days instead of

10 d ays Ð to file their proposed orders.

The partie s timely filed their proposed orders on September 21, 2022.

Unless otherwise noted, all citations to the Florida Statutes are to the

2021 version.

F INDINGS OF F ACT

1. The Commission is the state agency with the authority to exercise

regulatory and executi ve powers of the state with respect to wild animal life.

See Art. IV, § 9, Fla. Const.; § 379.1025, Fla. Stat. (2022).

2. The Commission has designated the gopher tortoise as a State

Threatened Species, subject to protective provisions adopted by Commissio n

rule. See Fla. Admin. Code R. 68A - 27.003(2)(f)5. Both the tortoise and its

burrow are protected under state law, and gopher tortoises must be relocated

before any land clearing or development takes place on property where

gopher tortoises are located.

3 . The CommissionÔs Gopher Tortoise Program governs the capture and

removal of gopher tortoises from development site s and relocation of those

tortoises to Commission - permitted recipient sites, as well as monitoring and

maintenance of recipient sites.

4. T he Commission has adopted extensive Gopher Tortoise Permitting

Guidelines (Ñthe GuidelinesÒ) governing the requirements to survey a

potential development site for gopher tortoises and burrows, regulating the

capture and trapping of gopher tortoises, as wel l as the transport of tortoises

to a recipient site, and the release of the tortoises to the recipient site. See

Fla. Admin. Code R. 68A - 27.003(2)(f)5.

5. Prior to his death, Drew Kaiser held Authorized Gopher Tortoise Agent

permit number GTA - 09 - 00005E, i ssued by the Commission and effective

March 18, 2019 through March 31, 2021. The permit was issued to Drew

Kaiser, Kaiser Consulting Group, LLC, 931 South Ridgewood Avenue, Suite

B3, Edgewater, Florida.

6. The permit authorized Mr. Kaiser to undertake the following activities:

1. conduct gopher tortoise surveys;

2. capture gopher tortoises using bucket traps and

hand shovel excavation of gopher tortoise burrows;

3. mark, transport, and release captured gopher

tortoises at recipient sites; and

4. supe rvise backhoe excavation of gopher tortoise

burrows to capture gopher tortoises.

7. John Wilson holds Authorized Gopher Tortoise Agent permit number

GTA - 19 - 00123, issued by the Commission and effective November 4, 2019

through November 4, 2021. The permi t is issued to John Wilson, Kaiser

Consulting Group, 4323 Kezar Court, Orlando, Florida.

8. Mr. WilsonÔs permit authorizes him to undertake the following

activities:

1. conduct gopher tortoise surveys, and

2. mark, transport, and release captured gophe r

tortoises at recipient sites.

9. Both permits contain conditions and provisions governing the

authorized activities, including the requirement to comply with the

Guidelines.

10. Mr. KaiserÔs permit also provided that the Ñactivities authorized under

th is Permit must be carried out by the Permittee or the AssistantsÒ

designated by the permittee, and that the Ñ[p]ermittee shall be as fully

responsible for activities conducted by Assistants È to the same extent as if

they had themselves carried out those a ctivities.Ò

11. Mr. Kaiser listed Mr. Wilson as one of his Assistants on his 2019

application for renewal of his Authorized Gopher Tortoise Agent permit.

12. Mr. Kaiser owned Kaiser Consulting Group (ÑKCGÒ) and Mr. Wilson is

employed by KCG as a project ma nager.

13. Recipient sites are privately or publicly - owned lands of 25 acres or

more subject to permitting by the Commission to accept gopher tortoises

needing relocation out of harmÔs way from development.

14. The allegations in the Agency Action letters in the underlying permit

discipline cases relate to activities that occurred at the following

Commission - permitted recipient sites:

1. Padgett Creek, Long - Term Gopher Tortoise

Recipient Site permit number GTLR - 18 - 00001;

2. C. Herman Beville Ranch, Long - T erm Gopher

Tortoise Recipient Site permit number GTLR - 10 -

00003D;

3. Highlands Ranch, Long - Term Gopher Tortoise

Recipient Site permit number GTLR - 17 - 00001;

4. Triple S Ranch, Long - Term Gopher Tortoise

Recipient Site permit number GTLR - 20 - 00001;

5. Russakis Investments, Long - Term Gopher

Tortoise Recipient Site permit number GTLR - 13 -

00005;

6. Russakis Ranch, Long - Term Gopher Tortoise

Recipient Site permit number GTLR - 11 - 00003C;

and

7. Williamson Cattle Company, Long - Term Gopher

Tortoise Recipien t Site permit number GTLR - 19 -

00003A.

15 . KCG prepared the application for each of the recipient site permits.

KCG also prepared the Gopher Tortoise Habitat Management Plan for each

of the recipient sites. Each of the subject recipient site permits is is sued to

the landowner.

16 . Applicants for a recipient site permit must identify an Authorized

Gopher Tortoise Agent associated with the permit. Each permit names Drew

Kaiser as the authorized agent, with an address of Kaiser Consulting Group,

LLC, 931 Sout h Ridgewood Avenue, Suite B3, Edgewater, Florida.

17 . The Guidelines require Commission staff to conduct site visits at

recipient sites after initial permitting and after receipt of monitoring reports

from the permitteeÔs authorized agent. Additionally, ra ndom site visits are

conducted every year to 18 months; ideally, during different seasons.

18 . Erik Seckinger, a senior gopher tortoise conservation biologist for the

Commission, conducted a site visit at the Padgett Creek recipient site

(ÑPadgett CreekÒ) on March 11, 2021. Mr. Wilson met Mr. Seckinger at

Padgett Creek and accompanied him during the site visit.

19 . During the site visit, Mr. Seckinger made several observations of

concern, including multiple deceased tortoises in varying states of decay;

ev idence of silt fencing (the enclosure material used for soft release ÑpensÒ of

gopher tortoises at recipient sites) that had been breached; portions of silt

fencing which had fallen down; and piles of silt fencing lying on the ground.

He also found evidenc e leading him to conclude that one pen on the recipient

site had been overstocked.

20 . Mr. Seckinger submitted an inspection report to the Commission

noting that the conditions observed violated specific provisions of both the

Guidelines and the Padgett Cr eek permit.

21 . Samantha Cobble, gopher tortoise conservation biologist with the

Commission, conducted site visits at the Beville Ranch recipient site (ÑBeville

RanchÒ) on March 10 and May 19, 2021, where she was met by Mr. Wilson,

who accompanied her for the site visits.

22 . During the March 10, 2021 site visit, Ms. Cobble made several

concerning observations including : numerous gopher tortoise carcasses in

various stages of decay, evidence of feral hog rooting, and exotic flora species

in need of manageme nt. Ms. Cobble noted the absence of silt fence pens,

which was inconsistent with after - action reports from Beville Ranch that

gopher tortoises had been released there in February 2021. 1 She also

observed old silt fence material piled on the ground.

23 . Bas ed on Ms. CobbleÔs familiarity with the B eville Ranch management

plan, she concluded that several provisions had been violated, including the

duty to manage feral hogs and exotic vegetation.

24 . During the May 19, 2021 site visit, Ms. Cobble found three ne wly -

installed silt fence pens. Ms. Cobble noted inconsistencies with the Beville

Ranch monitoring report and raised concerns with overstocking of pens.

25 . Ms. Cobble prepared an inspection report documenting her

observations and alleged violations of both the Guidelines and the Beville

Ranch permit.

26 . Kyle Brown is a gopher tortoise conservation biologist for the

Commission. In March 2021, Mr. Brown met with Mr. Kaiser and Mr. Wilson

at the Triple S Ranch recipient site (ÑTriple S RanchÒ) for an annual s ite

inspection. During the site visit, Mr. Brown observed Ñroller choppingÒ at the

site. Roller chopping is a method for clearing out canopy cover and woody

vegetation , and is not an approved management activity in the Triple S

Ranch habitat management pla n.

27 . In 2019, Mr. Seckinger, along with another Commission employee, had

conducted the pre - application site visit in conjunction with K C GÔs application

for permitting Triple S Ranch as a recipient site. At that site visit,

Commission employees visited ab out 70 percent of the site to ground - truth

the habitat maps and vegetation surveys submitted with the 2019

application.

28 . During the March 21, 2021 site visit, Mr. Brown observed habitat

types on the ground that differed from the habitat noted on the ha bitat maps

submitted with the application. He also noted areas where the habitat

differed from that described in the application. Specifically, Mr. Brown noted

1 The Guidelines require silt fence pens to be maintained for six months after release of

gopher tortoises.

that some areas classified as palmetto prarie and shrub and brushland (ideal

habitat for gopher tortoises) were actually improved pasture (not appropriate

habitat for gopher tortoises). Mr. Brown concluded that some habitat had

been improperly classified in the permit application. The result of improperly

classifying the habitat, if proven, would be overallocation of the amount of

acreage available for gopher tortoise habitat. 2

29 . Mr. Brown conducted a second site visit at Triple S Ranch on May 19,

2021 , to verify that silt fence pens were in place to receive gopher tortoises.

Mr. Brown was met at th e site by Mr. Wilson, who accompanied him during

the site visit. Mr. Brown observed, and documented with photographs, holes

in silt fencing and a gap under the silt fence in one area. The pen enclosure is

required to be buried below ground to prevent gophe r tortoises, which are

home - seeking, from escaping from the enclosure, where they are required to

be regularly observed and monitored for six months after release.

30 . Mr. Brown submitted a report to the Commission documenting his

concerns and alleged viol ations of the Guidelines and Triple S Ranch permit.

31 . Nicole Savona is a conservation easement and monitoring compliance

biologist for the Commission. She conducts pre - application visits and annual

site visits of recipient sites.

32 . On September 23, 20 20, Ms. Savona and Mr. Seckinger conducted a

site visit at the Highlands Ranch recipient site (ÑHighlands RanchÒ).

Mr. Kaiser and Mr. Wilson were onsite for this visit. Mr. Wilson provided

Ms. Savona with the most recent monitoring report (dated March 31, 202 0 )

and transect map of the ranch. 3

2 The allegation of improperly classifying h abitat, or falsifying the application , was not

proven at the final hearing in the underlying case.

3 A transect map reflects the linear rows, or transects, on a particular section of the recipient

site which were walked by the gopher tortoise agent to doc ument existing, active, and

abandoned gopher tortoise burrows, as well as any deceased tortoises.

33 . During this site visit, Ms. Savona walked a subset of the transects on

the map to ground - truth the number and location of burrows, as well as the

number of carcasses, noted in Mr. WilsonÔs report. Ms. Savona observ ed many

more Ñreadily apparentÒ gopher tortoise carcasses than were noted in the

monitoring report. Given the state of disarticulation of the gopher tortoise

shells, Ms. Savona determined that many of the carcasses she observed Ð

which she was literally Ñst epping overÒ to match with those mortalities noted

in the monitoring report Ð were older than those noted in the monitoring

report. Thus, she concluded that the permittee had failed to report observed

mortalities, as required by the Guidelines and the Highla nds Ranch permit.

34 . Claire Sundquist - Blunden is the section leader of the CommissionÔs

wildlife diversity conservation section. Based on the reports from

Mr. Seckinger, Ms. Cobble, Mr. Brown, and Ms. Savona, Ms. Sundquist -

Blunden drafted the Agency Actio n letters issued to Mr. Kaiser and

Mr. Wilson on June 4, 2021. 4 The Agency Action letters, which initiate the

underlying permit discipline case, cite Petitioners with multiple violations of

the Guidelines in management of the recipient sites, including the following:

Failing to regularly monitor and maintain

temporary fencing at several of the recipient sites

to repair damage and maintain the integrity of the

temporary enclosures;

Overstocking gopher tortoises at Padgett Creek and

Triple S Ranch;

Failing to report observed tortoise mortalities to

the Commission, which would trigger development

of a contingency or adaptive management plan;

Failing to monitor Padgett Creek Ranch and

Beville Ranch for feral pig activity and take steps

to curb feral pig damag e to tortoise burrows; and,

4 Initially, the Commission issued revocation letters dated March 19, 2021, which were

insufficient, and dismissed, without prejudice, by the undersigned in consolidated Case

Nos. 21 - 1317 and 21 - 1318 on May 12, 2021.

Allowing use of rollerchopping at Triple S Ranch,

when that land management technique is not

authorized in the management plan.

35 . The Agency Action letters cite Florida Administrative Code Rule 68 -

1.010(2)(d) as the basis fo r revocation of PetitionersÔ licenses, which provides,

in pertinent part, as follows:

(2) The Commission shall revoke or deny the

renewal of any license, permit or other

authorization based on any one or more of the

following grounds:

* * *

(d) The lice nsee, permittee or other holder of

authorization is conducting activities under the

license, permit or authorization in a manner that

endangers the health, safety or welfare of the

public, wild animal life, fresh water aquatic life or

marine life. (emphasi s added) .

36 . In the underlying case, the undersigned did not reach the specific

allegations of the Agency Action letters, finding that the alleged violations

were not related to activities undertaken by Petitioners under their

individual gopher tortoise agent permits. See Kaiser v. Fla. Fish & Wildlife

Cons er . CommÔn , Case No. 21 - 2139 ( Fla. DOAH Feb. 14, 2022; Fla. FWC

May 16, 2022). Rather, the activities they were conducting were under the

license, permit, or authorization of the recipient site permits. Id .

37 . In addition to alleged violations of the Guidelines on the recipient

sites, the Commission charged Mr. Kaiser with submitting false information

in connection with the Triple S Ranch recipient site permit application.

38 . The Commission cited in th e Agency Action letters, as the basis for

revocation, r ule 68 - 1.010(2)(c), which provides, in pertinent part, as follows:

The Commission shall revoke or deny the renewal

of any license, permit or other authorization based

on any one or more of the followin g grounds:

* * *

(c) The licensee, permittee or other holder of

authorization has submitted materially false

information in any previously submitted or pending

application or supporting documentation relating to

the application, or documentation or repo rts

required by the license, permit or authorization.

39 . The undersigned made findings pertinent to the allegation of falsifying

information on the Triple S Ranch permit application and found that the

Commission did not prove that allegation by clear and convincing evidence.

See Id .

C ONCLUSIONS OF L AW

40 . The Division has jurisdiction of this matter, and the parties thereto,

pursuant to sections 120.57 , 120.569(2)(e), and 120.595(1), Florida Statutes

(2022).

Fees Pursuant to Section 120.569(2)(e)

41 . Pet itioners seek attorneyÔs fees and costs under section 120.569(2)(e),

alleging that the Commission filed the Agency Action letters in this case for

an Ñimproper purpose.Ò

42 . Section 120.569(2)(e) provides:

All pleadings, motions, or other papers filed in the

proceeding must be signed by the party, the partyÔs

attorney, or the partyÔs 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 purposes, 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

pre siding officer shall impose upon the person 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 pleadin g, motion, or other paper, including a

reasonable attorneyÔs fee. (emphasis added) .

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

sanction, which may include payment of expenses incurred because of the

pleading, including reasona ble attorneyÔs fees. The imposition of sanctions is

a final order subject to judicial review . See Friends of Nassau C n ty. v . Nassau

C n ty ., 752 So. 2d 42, 43 - 4 (Fla. 1st DCA 2000).

4 4 . A partyÔs motion for attorneyÔs fees must identify the specific

Ñpleadin gs, motions, or other papersÒ allegedly filed for an improper purpose.

French v. Dept. of Child . & Fam s. , 920 So. 2d 671, 677 (Fla. 5th DCA 2006).

4 5 . In their Renewed Motion for AttorneyÔs Fees, Expense s , and Costs,

Petitioners identify Ñadministrative co mplaint lettersÒ as the pleadings filed

for an improper purpose pursuant to section 120.569(2)(e).

4 6 . RespondentÔs Agency Action letters are not pleading s , motion s , or

other paper s filed in the underlying proceeding. See Lightsey v. Fla. Fish &

Wildlife C onser. CommÔn , Case No. 19 - 5210 (Fla. DOAH Mar. 31, 2020); affÔd,

per curiam , Lightsey v. Fla. Fish & Wildlife Conser. CommÔn , 324 So. 3d 473

(Fla. 1st DCA 2021) (notice of intent of administrative action does not become

a legal proceeding until the affect ed party invokes the procedural rights

created by chapter 120 and requests a hearing). The administrative

complaint affords reasonable notice to the licensee Ñof facts or conduct which

warrant the intended action ,Ò and a licensee must be given Ñan adequate

opportunity to request a proceeding pursuant to ss. 120.569 and 120.57.Ò

§ 120.60(5), Fla. Stat. (emphasis added).

The proceeding was initiated when Petitioners filed their Petitions for

Administrative Hearing. 5

4 7 . Petitioners are not entitled to attor neyÔs fees for RespondentÔs Agency

Action letters under section 120.569(2)(e) because the Agency Action letters

were not filed in the proceeding. The notice of intent to revoke PetitionersÔ

gopher tortoise agent licenses i s Ña statement of an agencyÔs prop osed action

È [and] only bec [ame] a ÓproceedingÔ at the Division [when the Petitioners]

request [ed] a hearing.Ò Lightsey , at ¶ 12.

4 8 . Assuming, arguendo , the Agency Action letters are considered to be

Ñfiled in the proceeding,Ò the undersigned includes th e following analysis of

whether the Agency Action letters were actionable pursuant to section

120.569(2)(e).

4 9 . In determining whether a party is entitled to statutory attorneyÔs fees

under section 120.569(2)(e), the Division must evaluate whether Respond ent

had an Ñimproper purposeÒ based on an objective standard. See Procacci

CommÔl Realty, Inc. v. DepÔt of HRS , 690 So. 2d 603, 608 n.9 (Fla. 1st DCA

1997); Friends of Nassau C n ty., 752 So. 2d at 50 - 1; Blanco v. S W . Fla. Water

Mgmt. Dist. , Case No. 08 - 1972 at ¶¶ 73 - 5 (Fla. DOAH Nov. 17, 2008; Fla.

SFWMD Dec. 8, 2008).

5 0 . The court in Procacci explained the objective standard as follows:

Eschewing a subjective good faith - bad faith test, see

Rodgers v. Lincoln Towing Serv., Inc. , 771 F.2d 194

(7th Cir. 1985) , the Mercedes court concluded that a

finding of improper purpose could not stand Ñ if a

reasonably clear legal justification can be shown for

the filing of the paper. Ò 560 So. 2d at 278. The use

of an objective standard creates a requirement to

make a reas onable inquiry regarding pertinent

facts and applicable law. In the absence of Ñ direct

5 Petitioners as much as admitted that the Agency Action letters were not filed in the

proceeding in paragraph 63 of their Proposed Recommended Order, wherein they state,

ÑThose [administrative co mplaints] became a Section 120.57(1) proceeding when Petitioners

availed themselves of their statutory and constitutional rights to due process by demanding

an evidentiary hearing.Ò

evidence of the partyÔs and counselÔs state of mind,

we must examine the circumstantial evidence at

hand a nd ask, objectively, whether an ordinary

person standing in the partyÔs or counselÔs shoes

would have prosecuted the claim. Ò Pelletier v.

Zweifel , 921 F.2d 1465, 1515 (11th Cir. 1991).

Id . (citing Mercedes Lighting and Elec. Supply, Inc. v. State , 560 So. 2d 272,

277 (Fla. 1st DCA 1990).

5 1 . Whether section 120.569(2 )(e) authorizes sanctions for the Agency

Action letters in this case turns on the question of whether the signer could

have concluded that a justiciable controversy existed under the pertinent

statute and regulations. If, after reasonable inquiry, a person who reads, then

signs, a pleading had Ñreasonably clear legal justificationÒ to proceed,

sanctions are inappropriate. Procacci , 690 So. 2d at 608 n.9; Mercedes , 560

So. 2d at 278.

5 2 . The greater weight of the evidence supports that the Commission had

rea sonably clear legal justification to cite Mr. Kaiser and Mr. Wilson with

violations of the Guidelines and the recipient site permits.

5 3 . In the case at hand, the Commission was confronted with voluminous

evidence of unreported gopher tortoise mortalities, silt fence pens improperly

installed, silt fence pens in disrepair, overstocking of soft - release pens, and

unauthorized management activities on the relevant recipient sites, as well

as evidence of habitat disturbance by gopher tortoise predators which sh ould

have been mitigated according to the relevant habitat management plan. If

proven, these conditions would have constituted violations of either the

Guidelines or the relevant receiving site permits, or both.

5 4 . Mr. Kaiser was listed as the authorized gopher tortoise agent on each

of the recipient site permits, and either he, or his employee, Mr. Wilson, met

with Commission staff at the recipient sites for each of the site visits.

Mr. KaiserÔs company, KCG , prepared the recipient site application for ea ch

of the recipient sites, as well as the habitat management plans, and either

Mr. Kaiser or Mr. Wilson submitted after - action reports to the Commission

following release of gopher tortoises at those sites. The Commission had

abundant evidence of both Mr. Kaiser and Mr. WilsonÔs responsibility for

gopher tortoise management activities on the sites.

5 5 . The revocation action below appears to have been a case of first

impression. The undersigned was unable to find any other case in which the

Commission sought to discipline a licensed gopher tortoise agent for his or

her actions relating to management of a recipient site. There exists no

precedent contrary to the CommissionÔs position, and no case at the Division

wherein the legal issue could have been analyzed . 6

5 6 . T he Commission clearly has regulatory authority over Petitioners in

the form of their gopher tortoise agent permits. Further, Petitioners are

subject to the Guidelines in carrying out their duties as relocation agents,

and employees for the Commissi on noted numerous violations of the

Guidelines at the recipient sites managed by Petitioners. Under these

circumstances, applying the objectively - reasonable standard, the undersigned

concludes that the Commission had a reasonably - clear legal justification for

prosecuting Petitioners.

AttorneyÔs Fees Pursuant to Section 120.595(1)

5 7 . Petitioners also seek attorneyÔs fees and costs under section

120.5 95 ( 1) , alleging that the Commission participated in the underlying

revocation action for an Ñimproper purpose .Ò

5 8 . Section 120.595 (1) provides, in pertinent part, as follows:

(1) CHALLENGES TO AGENCY ACTION

PURSUANT TO SECTION 120.57 (1). Ð

* * *

6 After reasonable inquiry, the undersigned has been unable to locate any case at the

Division wherein the Commission sought to discipline a gopher tortoise agent for any reason.

(b) The final order in a proceeding pursuant to

s. 120.57(1) shall award reasonable costs and a

reasonable attorney Ôs fee to the prevailing party

only where the nonprevailing adverse party has

been determined by the administrative law judge to

have participated in the proceeding for an improper

purpose.

59 . The statute defines Ñnonprevailing adverse partyÒ as the Ñpar ty that

has failed to have substantially changed the outcome of the proposed or final

agency action which is the subject of [the] proceeding.Ò £ 120.595(1)(e)3., Fla.

Stat. The Commission is not a nonprevailing adverse party because it is not

Ñ a party that has failed to have substantially changed the outcome of the

proposed or final agency action which is the subject of the proceeding.Ò Id.

AttorneyÔs fees are, by definition, not recoverable against an agency under

this statute. See Johnson v. DepÔt of Corr . , 191 So. 3d 965, 968 (Fla. 1st DCA

2016) (agency that sought to dismiss employee, but rescinded that dismissal

after employeesÔ appeal to the Public Employees Relations Commission

(P E RC), was not Ñnonprevailing adverse partyÒ because it did not seek to

c hange outcome of proceeding. It was employee who changed outcome of

proceeding by succeeding in overturning his termination at PERC.)

6 0 . The Commission is not a nonprevailing adverse party subject to

attorneyÔs fees pursuant to section 120.595(1).

D ISPO SITION

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

O RDERED that the PetitionersÔ Renewed Motion s for AttorneyÔs Fees,

Expenses, and Costs are D ENIED .

D ONE A ND O RDERED this 1 2 th day of October , 2022 , in Tallahassee, Leon

County, Florida.

S

S UZANNE V AN W YK

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 2 th day of October , 2022 .

C OPIES F URNI SHED :

Kenneth G. Oertel, Esquire Rhonda E. Parnell, Esquire

(eServed) (eServed)

Eric Sutton, Executive Director Emily Norton, General Counsel

(eServed) (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 district w here the agency maintains its headquarters

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