CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1998 WL 148711
...rtunate death of Dr. Murtha while the appeal was pending. In so doing, we reject Lund's contention that we should decide the case on the merits for the sole purpose of determining appellant's right to prevailing-party appellate attorney's fees under section 120.595(5), Florida Statutes (Supp.1996)....
...consequences affecting the rights of a party may flow from the issues to be decided. Godwin v. State,
593 So.2d 211, 212 (Fla. 1992). Lund contends that if this court were to reverse the agency's final order, her entitlement to attorney's fees under section
120.595(5) constitutes a collateral legal consequence justifying a decision on the merits....
...Murtha's obligation to pay fees to his attorney presumably arose from their contractual agreement and was owed regardless of whether the Board of Medicine suspended his license or dismissed the complaint. Instead, Lund hopes to obtain a "collateral legal benefit" that would arise under section 120.595(5) only if the appeal were to be decided in appellant's favor....
...e in circumstances, an actual controversy no longer exists. Id. at 1115. The court did not decide the issue, however, concluding that fees would not be warranted under any result. We now conclude that the possibility of an attorney's fee award under section 120.595(5) is not a collateral legal consequence which would preclude dismissal when the death of a party renders the appeal moot. Although Dr. Murtha's death terminates the disciplinary proceeding against him, we do not reach the issue of whether this renders him the prevailing party, because the controlling statute at bar, section 120.595(5), unlike the statutes in the cases cited above, requires additional findings on the merits. Section 120.595(5) authorizes an award to the prevailing party only if the court also determines that the appeal was meritless, the agency exhibited a gross abuse of discretion, or the agency improperly rejected or modified findings of fact in the recommended order....
...es us from making. Under the cases discussed above, Lund is not entitled to prevailing-party attorney's fees on appeal. Accordingly, the appeal is DISMISSED and the motion for attorney's fees denied. BARFIELD, C.J., and BENTON, J., concur. NOTES [1] Section 120.595(5) provides: APPEALS.When there is an appeal, the court in its discretion may award reasonable attorney's fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of...
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...Entitlement is limited to fees and costs reasonably incurred by appellees in defending the appeal. While awards against an agency may in appropriate circumstances encompass fees and costs "for the administrative proceeding and the appellate proceeding," § 120.595(5), Fla.Stat....
...hat the pleading, motion or other paper be signed but does not address the consequences for failure to sign, whereas rule 11 provides for striking an unsigned pleading." Mercedes Lighting,
560 So.2d at 277 n. 4. [10] The same language now appears in section
120.595(5), Florida Statutes (Supp.1996)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 7940, 2004 WL 1224331
...ng by an Administrative Law Judge [ALJ] when the ruling concerns an area that may not fall within the umbra of the agency's "substantive jurisdiction." The issues we must resolve are: 1) whether an ALJ has jurisdiction to award attorney's fees under section
120.595, Florida Statutes (2000), when a notice of dismissal is filed before a formal hearing on the merits; and 2) whether an agency has "substantive jurisdiction" under section
120.57(1)( l ), Florida Statutes (2000), to correct an erroneou...
...The ALJ issued a notice setting the final hearing date for June 3, 2002. In May, DEP issued two amended notices that it intended to issue the permit and, on the same day that DEP filed the second amended notice, GEL filed its motion for attorney's fees pursuant to section 120.595, Florida Statutes (2000)....
...The ALJ commenced a hearing on the petition for fees and, after several witnesses testified, the hearing was continued until a later date. A little over a month later, having never reconvened the hearing, the ALJ entered a recommended order of dismissal. In the order, the ALJ held that pursuant to section 120.595, a full evidentiary hearing on the merits of the petition filed by Orange City was a jurisdictional prerequisite to an award of fees under the statute....
...of law regarding jurisdiction. In its final order of dismissal, DEP stated that in its opinion, the ALJ was wrong as a matter of law in ruling that a full evidentiary hearing on the merits was a jurisdictional prerequisite to an award of fees under section 120.595....
...urisdiction. It is from this order and these rulings that the issues we are asked to resolve emanate. The first issue is whether the ALJ was correct in ruling that a full evidentiary hearing is a jurisdictional prerequisite to an award of fees under section 120.595. A Full Evidentiary Hearing Is Not A Jurisdictional Prerequisite To An Award Of Fees Under Section 120.595....
...The ALJ did not recommence the hearing regarding GEL's petition for attorney's *1260 fees because he concluded that the dismissal of the underlying petition deprived him of jurisdiction, and he could proceed no further. This conclusion is premised on the provisions of sections 120.595(1)(b) and (c), Florida Statutes (2000), which state in pertinent part: (b) The final order in a proceeding pursuant to s....
...The pertinent language in the above-quoted paragraphs is that which refers to proceedings under section
120.57(1). Section
120.57(1) provides in pertinent part that "an administrative law judge ... shall conduct all hearings under this subsection." §
120.57(1)(a), Fla. Stat. (2000). Reading the provisions of sections
120.595 and
120.57 together, the ALJ came to the conclusion that a full evidentiary hearing adjudicating the merits of the underlying issues is a jurisdictional prerequisite to an award of fees under section
120.595. Orange City, advocating in favor of its interests as the potential payor of any award of fees, asserts the correctness of this ruling. While it agrees that sections
120.57(1) and
120.595(1)(b) should be considered together, GEL contends that a final order in a "proceeding" may refer to an order of dismissal and should not be restricted to an order rendered after a hearing on the merits of Orange City's petition....
...Therefore, the two terms as they are written in the statutes, *1261 while not mutually repugnant, are not consistent and unambiguous. It is, therefore, not clear from the provisions of the statutes whether a full evidentiary "hearing" is a jurisdictional prerequisite to an award of fees under section 120.595....
...To construe the statutes as Orange City suggests would promote an unjust outcome in many instances. Future petitioners in contested permit proceedings could wait until immediately before a scheduled hearing to file a notice of voluntary dismissal and unjustly avoid the sanction of an attorney's fee pursuant to section 120.595....
...al impact of this ruling of the ALJ on the environmental permitting process in this state. Based on this precedent, future petitioners in contested permit proceedings may avoid any possible liability for having to pay attorney's fees and costs under § 120.595(1) by simply filing notices of voluntary dismissals of their petitions immediately prior to the dates formal hearings are scheduled....
...This scenario could result in an increase in permit challenges initiated for the primary purpose of causing delays and increase the costs of the permit application review process. We cannot conceive that the Legislature intended such absurd and ridiculous results when it enacted sections
120.595(1) and
120.57(1). Accordingly, we must reject the interpretation adopted by the ALJ and advanced by Orange City as not being in accord with legislative intent. Moreover, we note that under the rules of statutory construction, section
120.595(1), which contains the term "proceeding" and concerns the specific subject of attorney's fees, was enacted after section
120.57(1), which contains the term "hearing" and concerns the more generalized subject of contested agency actions. Therefore, the term "proceeding" utilized in section
120.595, as the latter-enacted, more specific statutory provision, prevails over the more general provision of section
120.57, which contains the *1262 term "hearing." Thus, the filing of a petition and subsequent order of dismissal prior to a hearing on the merits is a proceeding and is sufficient to trigger application of the attorney's fees provisions of section
120.595(1). This construction brings the provisions of both statutes in harmony with one another and expresses the legislative intent that originally animated the attorney's fee provisions of section
120.595....
...enacted legislation comes soon after controversies arise over the meaning of an existing statute or soon after judicial interpretations of an existing statute [3] are *1263 rendered. Accordingly, the legislative response to the interpretation given section
120.595 in the administrative decisions just referred to clearly indicates that the Legislature did not agree with those interpretations and sought to clarify the meaning of the statute through the newly enacted provision to section
57.105. We conclude the ALJ clearly erred when he ruled that dismissal of the petition prior to an adjudicatory hearing deprived him of jurisdiction to award fees under section
120.595(1). The next issue we must address is whether DEP had substantive jurisdiction to correct the error. An Agency Does Not Have Substantive Jurisdiction Over The Legal Issue Relating To Attorney's Fees Under Section
120.595 In its order, DEP acknowledged that the ALJ erred in ruling he did not have jurisdiction to hear the petition for attorney's fees....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2012 WL 4800987, 2012 Fla. App. LEXIS 17433
LEWIS, J. J.S., Appellant, challenges a final order of the Administrative Law Judge (“ALJ”) that denied his motion for attorney’s fees, based on the ALJ’s interpretation of section 120.595(4), Florida Statutes (2009). Because the ALJ erred in interpreting section 120.595(4), we reverse and remand for further proceedings....
...s and costs, and APD’s position regarding the reasonableness of the fees. All of the parties, except J.S., waived their right to attorneys’ fees. J.S. filed a memorandum in support of his entitlement to attorney’s fees and stated that sections 120.595(4)(a) and 120.595(4)(b), Florida Statutes (2009), provided that he was entitled to attorney’s fees....
...hat subsection that are not applicable here. Section
120.56(4)(a), Florida Statutes (2009), allows “[a]ny person substantially affected by an agency statement” to seek a determination from an ALJ that the statement violates section
120.54(l)(a). Section
120.595(4), Florida Statutes (2009), which authorizes an award of reasonable attorney’s fees and costs in actions brought against an agency pursuant to section
120.56(4), provides as follows: (4) Challenges to agency action pursuant to sect...
...ver, the attorney’s fees provisions of paragraph (b) that specifically apply to paragraphs (a) and (b) do not preclude an award of attorney’s fees to J.S. on the basis that J.S. is an intervenor. Thus, the ALJ reversibly erred in concluding that section
120.595(4) does not authorize attorney’s fees for intervenors. Our interpretation of section
120.56(4) is further supported by its Legislative history. The previous version of paragraph (a) included the phrase “to the petitioner” in the attorney’s fees provision. §
120.595(4)(a), Fla....
...However, the Legislature amended paragraph (a) in 2008 and deleted the phrase “to the petitioner” from paragraph (a). Ch. 08-104, § 13 at 1106, Laws of Fla. Upon amending paragraph (a), the Legislature added paragraph (b) to the current version of section 120.595(4), and the Legislature included the phrase “to the petitioner” in one of the attorney’s fees provisions of paragraph (b). See id.; § 120.595(4)(b), *317 Fla....
...) (citations omitted). Furthermore, as we previously noted, this attorney’s fees provision of paragraph (b) does not apply to the facts of this case. CONCLUSION For the foregoing reasons, we conclude that the ALJ reversibly erred in interpreting section 120.595(4)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2172236
...The Board of Regents and USF claim that the ALJ erred in failing to consider the results obtained in the underlying litigation in determining reasonable attorneys' fees and that Winters' success in the underlying litigation was limited. Winters contends that the ALJ's fee award was correct under the provisions of section 120.595(5), Florida Statutes (2002), which require an award of reasonable fees and costs "for the administrative proceeding and the appellate proceeding" whenever an "agency improperly rejected or modified findings of fact in a recommended or...
...successful claims. In adjusting the fee based upon the success of the litigation, the court should indicate that it has considered the relationship between the amount of the fee awarded and the extent of success. Id. We reject Winters' argument that section 120.595(5) requires that there be no reduction in the award of fees based on the results obtained. Nothing in the text of section 120.595(5) supports applying the fee provisions in the punitive manner suggested by Winters. A Rowe analysis is applicable under section 120.595(5) because the statute specifically provides for an award of "reasonable attorney's fees." A determination of "reasonable attorney's fees" necessarily takes into account the factors set forth in Rowe....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...ion of section
120.54(1)(a), Florida Statutes (1997), a determination we do not disturb on the Department's cross-appeal. Because Security Mutual's challenge succeeded in this regard, Security Mutual was entitled to an award of attorney's fees under section
120.595(4), Florida Statutes (1997)....
...(b) Notwithstanding the provisions of chapter 284, an award shall be paid from the budget entity of the secretary, executive director, or equivalent administrative officer of the agency, and the agency shall not be entitled to payment of an award or reimbursement for payment of an award under any provision of law. § 120.595, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...They argued that they were entitled to fees by statute because they had obtained a declaration that the rule was invalid. Because the controversy concerning the proposed rule continued to exist after October 1, 1996, Judge Ruff applied the attorney's fee provision in section 120.595(2), Florida Statutes (Supp.1996)....
...The policy of this statute is to make administrative agencies accountable for their own rules. An attempt to promulgate an invalid rule may now result in an award of attorneys' fees against the agency and in favor of the party challenging the rule. See § 120.595(2), Florida Statutes (Supp.1996)....
...t policy. Because the proposed rule in this case makes no change in the Department's policy under the existing rule, it can be applied retroactively to pending applications. The subsequent order assessing attorney's fees against the Department under section 120.595(2), Florida Statutes (Supp.1996), was based on the administrative law judge's erroneous conclusion that the rule is invalid....
...t's settled interpretation of the existing rule. Consequently, we reverse the final order by Administrative Law Judge Ruff in the proceeding under section
120.56, Florida Statutes (Supp.1996), and the subsequent order assessing attorney's fees under section
120.595(2), Florida Statutes (Supp.1996)....
...The *502 challengers' standing has not been called into question. I also concur in reversing the award of costs and fees in No. 97-3937. I do so, however, on the basis that the invalidated rule amendment was proposed before October 1, 1996, the date on which section
120.595(2), Florida Statutes (Supp.1996), took effect. Ch. 96-159, § 44, at 213, Laws of Fla. Cf. Security Mut. Life Ins. Co. of Lincoln, Neb. v. Department of Ins.,
707 So.2d 929 (Fla. 1st DCA 1998) (holding that section
120.595(4), Florida Statutes (Supp....
...Hearings 1997) (noting that "the courts have consistently found that statutory amendments imposing or increasing an obligation for attorney's fees are substantive in nature"). Repeal of statutory authority for the proposed rule amendment falls, moreover, within the "special circumstances" contemplated by section 120.595(2), Florida Statutes (Supp.1996)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 509, 2005 WL 124161
...Specifically, AHCA took the position that section 400.407(3)(b)1. mandated denial of the license renewal. Because AHCA's construction was erroneous, we reverse. See Ocampo v. Dep't of Health,
806 So.2d 633 (Fla. 1st DCA 2002). We also grant appellant's motion for attorney's fees filed under section
120.595(5), Florida Statutes (2002)....
...As to a facility already holding an ECC license, however, the statute does not speak to mandatory non-renewal. The conclusions we have reached in this opinion have constrained us to seriously consider, and ultimately grant, RPBL's motion for appellate attorney's fees filed under section 120.595(5), Florida Statutes (2002). That statute allows attorney's fees, not only for frivolous or meritless appeals, but also in situations where "the agency action which precipitated the appeal was a gross abuse of the agency's discretion." § 120.595(5), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2004 WL 57222
...Miller, P.A., and Donna Holshouser Stinson of Broad and Cassel, Tallahassee, for Appellee. KAHN, J. The issue in this administrative case concerns Florida's statutory policy of allowing reasonable costs and reasonable attorney's fees to a petitioner that successfully challenges an administrative agency's non-rule policy. See § 120.595(4), Fla....
...ion and attendance at the actual fee hearing, and awarded all costs sought by HHCI's attorneys, without regard to whether these costs were incurred in the non-rule policy challenge. Our analysis begins with the statute that allows fees in this case. Section 120.595(4)(a) provides, "[U]pon entry of a final order that all or part of an agency statement violates s....
...120.54(1)(a), the administrative law judge shall award reasonable costs and attorney's fees to the petitioner...." Because the issue on appeal involves application of this statutory language to undisputed facts, we review the ALJ's order under the de novo standard. HHCI argues that the language of section 120.595(4) does not foreclose an award of fees for related proceedings that contribute to a favorable outcome....
...Florida courts strictly construe statutes allowing attorney's fees because, under Florida law, statutes awarding fees continue to be viewed as in derogation of the common law. See, e.g., Willis Shaw Express, Inc. v. Hilyer Sod, Inc.,
849 So.2d 276 (Fla.2003). *596 Here, although section
120.595(4) does not specifically foreclose recovery of all legal fees incurred by a party to whom an agency applies an unlawful non-rule policy, it does not on its face allow those fees either. In fact, the statutory subsection in question governs "CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
120.56(4)." §
120.595(4), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 16268, 2011 WL 4905747
...imely filed even though it was apparently received by the clerk's office thirty-nine minutes after the stated deadline. . After serious and careful deliberation, we feel constrained to grant Appellant’s motion for attorney’s fees and costs under section 120.595(5), Florida Statutes (2010), and do so *282 under separate order....
...principles of administrative law that it constituted a gross abuse of discretion. See Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering,
53 So.3d 1158 , 1162 n. 4 (Fla. 1st DCA 2011) (awarding section
120.595(5) fees where the agency dismissed a petition for formal administrative hearing for lack of standing, contrary to the basic, settled principles of administrative law); Salam v. Bd. of Prof'l Eng’rs,
946 So.2d 48, 49 (Fla. 1st DCA 2006) (awarding section
120.595(5) fees where the agency arbitrarily and capriciously failed to act on a petition for formal hearing within the required time, thus putting the petitioner’s rights "on hold”)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2012 WL 4840705
...d for opinion purposes as well. Appellant, the Town of Davie, contends that the administrative law judge (“ALJ”) erred in concluding that he lacked jurisdiction to adjudicate Appellant’s motion for attorney’s fees and costs filed pursuant to section 120.595(1), Florida Statutes, after he closed the cases and relinquished jurisdiction to the Florida Commission on Human Relations....
...pellees voluntarily dismissed their cases and when the ALJ closed the files and relinquished jurisdiction. Cf G.E.L. Corp. v. Dep’t of Envtl. Prot.,
875 So.2d 1257, 1263 (Fla. 5th DCA 2004) (holding that an ALJ has jurisdiction to award fees under section
120.595(1) when a petition has been dismissed but noting that the motion for fees was filed prior to the voluntary dismissal)....
...Appellant’s argument that it had no basis to file a motion for fees prior to the voluntary dismissals is refuted by its assertions below and on appeal that Appellees engaged *263 in conduct prior to the voluntary dismissals that was intended to harass and cause unnecessary delay. See § 120.595(l)(b), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Citrus County
Florida Bd.,
193 So. 3d 1075, 1078 (Fla. 5th DCA 2016). At the
least, collateral consequences of this case that may affect the rights
of a party exist, regardless of the mootness of the Proposed Rule,
in particular, the challengers’ right to attorney’s fees under section
120.595(2), Florida Statutes....
...4 For this reason, we proceed to the merits of this
appeal.
We find that Lund v. Dep’t of Health,
708 So. 2d 645 (Fla. 1st
4
DCA 1998), does not require a different conclusion. In Lund we
dismissed a moot appeal in a license disciplinary action, finding
that the possibility of attorney’s fees pursuant to section
120.595(5) does not constitute a collateral legal consequence....
...Stat.
that statute is conditional, permitted only when the appellate
court determines that the appeal was “frivolous, meritless, or an
abuse of the appellate process, or that the agency action which
precipitated the appeal was a gross abuse of the agency’s
discretion.” Fees here are sought under section 120.595(2), which
requires that “a judgment or order shall be rendered against the
agency for reasonable costs and reasonable attorney’s fees,” “[i]f
the appellate court or administrative law judge declares a
proposed rule or portion...
...e the award
unjust.” Stated differently, fees under subsection (2) are required
unless an exception applies, whereas fees under subsection (5) are
wholly conditional. We find this distinction to be relevant here, so
that the request for fees under section
120.595(2) allows us to
decide this moot appeal.
7
First, the prior version of section
395.4025(5) provided that
provisional trauma centers “shall be located in a trauma service
area that has a need f...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2004 WL 1562337
...porate representatives to appear for depositions scheduled by ISF. We affirm the final order in all respects. In addition, we grant ISF's motion for appellate attorney's fees and costs against Consultech, finding ISF entitled to fees and costs under section 120.595(5), Florida Statutes, and remand to the ALJ for determination of a reasonable amount....
...travel time between Tallahassee to Jacksonville and back amounts to between five and six hours." We find no abuse of discretion in the attorney's fees award. Finally, ISF has petitioned for an award of appellate attorney's fees and costs pursuant to section 120.595(5), Florida Statutes....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2015 WL 46515
...Finding the Department had not
demonstrated circumstances excusing a lack of rulemaking as contemplated by
10
section
120.57(1)(e), the ALJ determined Amerisure was entitled to recover fees
and costs pursuant to section
120.595(4)(a), Florida Statutes.
The ALJ determined that a “credit” was created “by Amerisure paying more
out in refunds and dividends than it wrote or collected in premium....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 1428, 2011 WL 362416
... . The position taken by the Division in the dismissal order, and maintained in this appeal, is so contrary to the fundamental principles of administrative law that, by separate order, we have granted Appellant’s motion for attorney's fees under section 120.595(5), Florida Statutes....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1997 Fla. App. LEXIS 4132, 1997 WL 193835
...The ALJ's recommended order adopted by the agency covers some 86 pages. Life Care's appellate issue is: "Whether the final order rests upon findings that are contrary to the record evidence, and upon invalid legal conclusions?" Appellee HCR seeks appellate attorney's fees on the basis of section
120.595(5), Florida Statutes (Supp.1996), and section
408.039(6)(c), Florida Statutes. Section
120.595 provides: When there is an appeal, the court, in its discretion may award reasonable attorney's fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellat...
...Even more importantly, Life Care has not shown that the errors it alleges were dispositive to the outcome of the case. Finding that Life Care's arguments are frivolous and meritless, we grant the motion for appellate attorney's fees and costs pursuant to section 120.595(5), Florida Statutes (Supp.1996)....
CopyPublished | District Court of Appeal of Florida
attorney’s fees on four substantive grounds: (1) section
120.595(5), Florida Statutes; (2) section
57.105(5)
CopyPublished | Florida 4th District Court of Appeal
...On Motion for Appellate Attorney’s Fees
GROSS, J.
By a separate opinion, we have reversed the case, so the
appellant/child has prevailed in the appeal. The child moves for appellate
attorney’s fees on four substantive grounds: (1) section
120.595(5), Florida
Statutes; (2) section
57.105(5), Florida Statutes; (3) section
57.111, Florida
Statutes; and (4) equitable considerations. We deny the motion on all
grounds, and consider each in turn.
Section
120.595(5)
Section
120.595(5), Florida Statutes (2020), states in relevant part:
When there is an appeal, the court in its discretion may award
reasonable attorney’s fees and reasonable costs to the
prevailing party if the court finds that...
CopyPublished | Florida 3rd District Court of Appeal
...Kendale, Inc.,
788 So. 2d 1051, 1053 (Fla. 1st DCA 2001). Consequently, we turn our
analysis to whether, in the instant case, the School Board would have been
entitled to recover fees had it prevailed in its challenge.
The School Board contends section
120.595(3), Florida Statutes
(2021), authorizes a recovery of fees in these proceedings....
...As with any
statutory analysis, we begin “with ‘the language of the statute,’” and, here,
because that “language provides a clear answer, it ends there as well.”
Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 438 (1999) (quoting Est. of
Cowart v. Nicklos Drilling Co.,
505 U.S. 469, 475 (1992)).
Section
120.595, Florida Statutes, entitled “[a]ttorney’s fees,” contains
several provisions allowing for the recovery of fees in successful challenges
to agency action. As expressly provided by the legislature, the applicability
of subsection (3) of the statute is limited to “challenges to existing agency
rules pursuant to section
120.56(3) and (5).” §
120.595(3), Fla....
...Martin McFall Messenger Anesthesia Prof’l Ass’n,
539 So. 2d 1131, 1132
(Fla. 1989) (“[T]he mention of one thing in a statute implies the exclusion of
those things not expressly mentioned.”). Adhering to the plain statutory
language, we conclude section
120.595(3) provides no basis for fee
entitlement in this proceeding, thus, the repeal of Emergency Rule
64DER21-12 renders the instant petition moot.
Petition dismissed.
8
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 17208, 2006 WL 2933923
...ourt to provide effectual relief.”). As we did in Lund and for the reasons stated therein, we reject appellant’s argument that we should decide the case on the merits for the sole purpose of determining his right to attorney’s fees pursuant to section 120.595(5), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 15280, 2003 WL 22327076
...expeditiously and in good faith to adopt the rule: [T]he issue is whether an administrative agency can avoid an adverse ruling in a section
120.56(4) proceeding and the consequences of an award of attorney’s fees and costs to the petitioner under section
120.595(4) if, prior to entry of a final order, the agency publishes a proposed rule addressing the statement and proceeds expeditiously and in good faith to adopt the rule.......
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 15210, 2000 WL 1724985
...Charlene Johnson appeals a final order denying an award of attorney’s fees following her successful challenge of the termination of her Medicaid benefits by the Department of Children and Families, ap-pellee. We affirm the order denying attorney’s fees because such an award is not authorized under section
120.595(2), Florida Statutes (1999), for a proceeding held pursuant to section 408.285, Florida Statutes. By its terms, section
120.595(2) authorizes an award of attorney’s fees in a rule challenge under section
120.56(2), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2002 WL 31557666
...set forth in section
120.56(4)(e). Stated another way, the issue is whether an administrative agency can avoid an adverse ruling in a section
120.56(4) proceeding and the consequences of an award of attorney's fees and costs to the petitioner under section
120.595(4) if, prior to entry of a final order, the agency publishes a proposed rule addressing the statement and proceeds expeditiously and in good faith to adopt the rule....
...ection
120.54. If the administrative law judge rules in favor of the challenger on this issue, the agency can no longer rely upon the statement as a basis for agency action and the challenger is entitled to reasonable costs and attorney's fees under section
120.595(4). See Security Mut. Life Ins. Co. of Lincoln, Neb. v. Dep't. of Ins.,
707 So.2d 929 (Fla. 1st DCA 1998)(holding *935 that section
120.595(4) requires awarding fees and costs in the event of a successful challenge to an unpromulgated rule)....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 17330, 2015 WL 7295240
...ntered upon remand in case number 1D13-4903. In these consolidated cases, Appellants also appeal in case number 1D15-1863 other portions of that same administrative order. That administrative order awarded $50,000.00 in attorneys’ fees pursuant to section 120.595(2), Florida Statutes, and costs in the amount of $41,000.00 We reject all of Appellants’ arguments and affirm the administrative order, with the exception of the amount of costs awarded....
CopyPublished | Florida 1st District Court of Appeal | 2000 WL 628005
...for the proposed rules; and "there are no special circumstances which make the award of fees and costs unjust." The agency appeals all the awards; the non-attorney-represented party appeals the denial of its motion for an attorney's fee. THE APPEAL Section
120.595(2), Florida Statutes (1999), provides: *662 Challenges to proposed agency rules pursuant to section
120.56(2).If the court or administrative law judge declares a proposed rule or portion of a proposed rule invalid pursuant to s....
...stantially justified"; a veterinarian thus was entitled to an attorney's fee). We note that the order under review contains no findings; it rather contains conclusions of law. The order's findings of fact and conclusions of law indeed are identical. Section 120.595(2) empowers an administrative law judge, after the invalidation of a proposed rule, to render a costs and fees order against an agency, except where "there is a reasonable basis in law and fact " for the agency's actions at the time the actions were taken....
...We therefore reverse the award of fees and costs, and remand for the necessary factual findings. THE CROSS-APPEAL The non-attorney-represented bank was represented by its Treasurer, Eli S. Jenkins. It is undisputed that Jenkins is a non-lawyer. Nothing in section 120.595(2) authorizes the award of attorneys' fees to non-attorneys....
CopyPublished | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 7215, 2016 WL 2755849
...Linville Atkins of Flury & Atkins, LLC, Tallahassee, for Appellant.
Pamela L. Hatcher, Assistant General Counsel, Florida Department of Corrections,
Tallahassee, for Appellee.
BILBREY, J.
Randall Johnson appeals the final order of the administrative law judge
finding that section 120.595(1), Florida Statutes, did not provide a statutory basis
to support Johnson’s request for an award of his attorney’s fees against the
Department of Corrections. The ALJ concluded that in this case, the Department
did not meet the definition of “nonprevailing adverse party” set out in section
120.595(1)(e)3., and thus could not be liable for Mr....
...Johnson’s employment
with allegations of new facts seemingly unrelated to the original grounds.
Ultimately, the Department rescinded its dismissal action and Mr. Johnson was
reinstated to his employment on February 13, 2015.
As the prevailing party, Mr. Johnson sought an award of attorney’s fees
under sections
120.595 and
120.569, Florida Statutes....
...Because hearing officers are
1
Chapter 120 applies to proceedings under section
110.227(5), Florida Statutes,
including judicial review of such administrative action. §§
110.227(6)(a),
447.504,
Fla. Stat. (2015).
2
not authorized to rule on a request for fees under section
120.595, the PERC
referred that request to the Division of Administrative Hearings for consideration
by an ALJ. French v. Dep’t of Children & Families,
920 So. 2d 671, 677 (Fla. 5th
DCA 2006) (current version of §
120.595 “only authorizes administrative law
judges to consider fee requests”). 2 Upon this referral, Mr. Johnson proceeded on
his request for attorney’s fees before the ALJ solely based on section
120.595(1).
Section
120.595(1)(b) provides, “The final order in a proceeding pursuant to
s....
...a reasonable attorney’s 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.”
“Nonprevailing adverse party” is defined in section 120.595(1)(e)3....
...modification or condition intended to resolve the matters raised in a
party's petition, it shall be determined that the party having raised the
issue addressed is not a nonprevailing adverse party.
The ALJ concluded as a matter of law under the clear terms of section
120.595(1)(e)3., that the Department did not qualify as a “nonprevailing adverse
2
The exclusive references to administrative law judges in section
120.595(1) have
not been subsequently amended.
3
party” in this case and thus, section
120.595(1)(b) did not provide a statutory basis
for an award of Mr. Johnson’s reasonable attorney’s fees.
Mr. Johnson seeks reversal of the ALJ’s ruling that the Department was not
a “nonprevailing adverse party” as defined by section
120.595(1)(e). He relies on
the decision in French, for his position that administrative agencies are subject to
awards of attorney’s fees under section
120.595(1) and the ALJ’s ruling to the
contrary violates legislative intent and public policy.
The parameters of our review of administrative final orders are set out in
section
120.68, Florida Statutes.3 We are required to affirm...
...an appellant establishes a specified ground under that statute for setting aside,
modifying, remanding, or ordering agency action or ancillary relief. §
120.68(8),
Fla. Stat. The argument advanced by Mr. Johnson challenges the ALJ’s
application of section
120.595(1) to his request for attorney’s fees....
...2d
at 65.
While the Department undoubtedly did not “prevail” in its administrative
proceeding to terminate Mr. Johnson’s employment, the Department does not fall
within the statutory definition of “nonprevailing adverse party” in section
120.595(1)(e)3. The Department was not “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.” § 120.595(1)(e)3., Fla....
...Johnson who succeeded in substantially changing
the outcome of the agency action because his appeal of the agency action to the
PERC eventually resulted in reinstatement of his employment. Under the statutory
language defining “nonprevailing adverse party,” section
120.595(1) cannot
provide the statutory basis for an award to Mr. Johnson of his attorney’s fees as
against the Department.
Mr. Johnson’s reliance on French and his assertion that the ALJ’s order is
contrary to the legislative intent of section
120.595(1) are unavailing. The issue in
French was not whether the agency qualified as “nonprevailing adverse party”
under section
120.595. In French, the appellate court ruled that attorney’s fees
under section
120.595 could be awarded only by an ALJ, not by a hearing officer.
French,
920 So. 2d at 677. The court in French opined that the agency could not
avoid exposure to the attorney’s fee provision in section
120.595 by choosing to
conduct its administrative hearings before a hearing officer rather than an ALJ, as
allowed by section
120.80(7), Florida Statutes....
...The court further
held that section
120.80(7) did not “exempt DCF from the rest of chapter 120.” Id.
at 677. The opinion in French does not require a finding in this case that the
Department is a “nonprevailing adverse party” for the purpose of an award of fees
under section
120.595(1).
6
Likewise, the application of the definition of “nonprevailing adverse party”
in section
120.595(1)(e)3. to exclude the Department in this case does not
contravene the legislative intent to “level the playing field” for individuals
contesting agency action. Section
120.595(1)(a) specifically states, “The
provisions of this subsection are supplemental to, and do not abrogate other
provisions allowing the award of fees or costs in administrative proceedings.”
Section
120.595(6) reiterates that section
120.595 does not affect the availability of
attorney’s fees under other statutes including specifically “ss....
CopyPublished | Florida 1st District Court of Appeal | 2007 WL 935035
...of Licensing,
501 So.2d 129, 132 (Fla. 5th DCA 1987). Accordingly, the final order is REVERSED and REMANDED with instructions that the ALJ's recommended order be adopted as the final order of the Board. Stokes' motion for attorney's fees and costs pursuant to section
120.595(5), Florida Statutes (2005), is GRANTED....
CopyPublished | Florida 1st District Court of Appeal | 1998 Fla. App. LEXIS 2954, 23 Fla. L. Weekly Fed. D 823
...ing party against the Human Relations Commission. Unfortunately, the authority for that reference erroneously was cited as section
760.11(13), Florida Statutes (1993). The correct statutory reference for such fees, at least at this point in time, is section
120.595(5), Florida Statutes (1997), which can be utilized by an appellate court in awarding reasonable attorney’s fees to a prevailing party when the court finds that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 2413, 1998 WL 107291
...section
120.54(l)(a), Florida Statutes (1997), a determination we do not disturb on the Department’s cross-appeal. Because Security Mutual’s challenge succeeded in this regard, Security Mutual was entitled to an award of attorney’s fees under section
120.595(4), Florida Statutes (1997)....
...(b) Notwithstanding the provisions of chapter 284, an award shall be paid from the budget entity of the secretary, executive director, or equivalent administrative officer of the agency, and the agency shall not be entitled to payment of an award or reimbursement for payment of an award under any provision of law. § 120.595, Fla....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 3510696
...oluntary
dismissal. In light of this notice, we dismiss. However, we write to specify that
AHCA may not avoid its obligation to pay appellees’ reasonable appellate
attorney’s fees by filing this belated notice of voluntarily dismissal.
Section 120.595(4)(a), Florida Statutes, requires that “[i]f the appellate court
or administrative law judge determines that” an agency is operating under an
unpromulgated rule, “a judgment or order shall be entered against the agency for
re...
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 10937, 2006 WL 1805604
...See Lund v. Dep’t of Health,
708 So.2d 645, 646 (Fla. 1st DCA 1998) (“[W]e reject [the] contention that we should decide the case on the merits for the sole purpose of determining appellant’s right to prevailing-party appellate attorney’s fees under section
120.595(5), Florida Statutes.......
CopyPublished | Florida 1st District Court of Appeal
...While it is true that a successful rule
challenger can recover attorney’s fees, the agency is not liable for
fees if it “demonstrates that its actions were substantially justified
or special circumstances exist which would make the award
unjust.” § 120.595(2), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 10851, 2003 WL 21663701
...iled to set out a written final order reflecting the vote, and then, in the written final order, improperly recast the findings of fact as conclusions of law. Dr. Verleni’s motion for attorney’s fees and costs on this appeal must be granted. See § 120.595(5), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 52, 2006 WL 26182
...Accordingly, we remand this case to the hearing officer to award corrective payments retroactive to October 31, 2003. Regarding attorney’s fees, we agree with DCF that the hearing officer did not have authority to consider the issue of attorney’s fees under section 120.595, Florida Statutes, as that statute is currently configured....
...We disagree, however, with DCF’s contention that it is exempt from attorney’s fee awards under this statute altogether. We therefore quash that portion of the order denying attorney’s fees and remand for appointment of an administrative law judge to consider French’s request for attorney’s fees pursuant to section 120.595(l)(b), Florida Statutes....
...At the conclusion of the hearing, French simply argued that attorney’s fees were authorized under chapter 120. Additionally, the hearing officer never considered or ruled on the request for attorney’s fees pursuant to this provision. Denial of Attorney’s Fees Pursuant to Section 120.595 French also argues that the hearing officer erred in denying her request for attorney’s fees under sections 120.595(l)(b), (l)(c) and (5), Florida Statutes (2004)....
...1 DCF argues that these sections must be strictly construed as they are in derogation of common law. Dade County v. Pena,
664 So.2d 959, 960 (Fla.1995). DCF notes that section
120.80(7) exempts it from having to use administrative law judges in hearings such as the one below. Consequently, DCF argues that because section
120.595 uses the phrase “administrative law judge,” a mere “hearing officer” has no authority to award fees under this section. Former versions of section
120.595 authorized hearing officers to award attorney’s fees, but the current version only authorizes administrative law judges to consider fee requests. Considering, however, that section
120.80(7) authorizes DCF to use a hearing officer instead of an administrative law judge in these types of proceedings, it appears to us that "the failure of the current section
120.595 to authorize hearing officers to award attorney’s fees is a legislative oversight. The legislature must correct this oversight, not this Court. While we conclude that the plain language of section
120.595 does not authorize a hearing officer to award attorney’s fees, we do not agree with DCF’s contention that section
120.80(7) exempts it from exposure to attorney’s fees altogether under that section....
...To hold otherwise, as French notes, would allow DCF to “avoid the penalty for their own misconduct by opting for the forum which would guarantee no attorney’s fees.” Therefore, we remand for appointment of an administrative law judge to determine the issue of attorney’s fees under section 120.595(l)(b). 2 We recognize that our remand to an administrative law judge to consider fees under section 120.595(l)(b) is cumbersome....
...However, we believe this result is required in keeping with the overall legislative intent of chapter 120. Sometimes administrative efficiency must yield to due process in the administration of justice. Attorney’s Fees in this Appeal French requests appellate attorney’s fees pursuant to section 120.595(5). Section 120.595(5) authorizes this Court to award appellate attorney’s fees if “the agency action which precipitated the appeal was a gross abuse of the agency’s discretion.” See also Steadman v....
...e hearing officer’s denial of attorney’s fees; (3) remand to the hearing officer to order retroactive corrective payments; (4) remand for appointment of an administrative law judge to consider French’s request for attorney’s fees pursuant to section 120.595(l)(b); and (5) award attorney’s fees to French for this appeal in an amount to be determined by the administrative law judge on remand. AFFIRMED IN PART, QUASHED IN PART; REMANDED IN PART TO HEARING OFFICER WITH DIRECTIONS; REMANDED IN PART FOR APPOINTMENT OF ADMINISTRATIVE LAW JUDGE WITH DIRECTIONS. SAWAYA and PALMER, JJ., concur. . Section 120.595(1) states in pertinent part: (b) The final order in a proceeding pursuant to s....
...an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney’s fees. (Emphasis added). . We reject French’s arguments that she is was entitled to attorney's fees in the proceedings below under section 120.595(l)(c) or section 120.595(5). Section 120.595(l)(c) creates a presumption in favor of attorney's fees if the adverse party participated in "two or more other such proceedings” in which it lost against the prevailing party in this case. However, by French's own admission, there was only one other proceeding in which DCF lost to French, not two. Therefore, the presumption cannot be met because it requires two other proceedings, not including the instant proceeding below. Section 120.595(5) allows an appellate court to award attorney's fees "for the administrative proceeding and the appellate proceeding” but only if the court finds that the "agency improperly rejected or modified findings fact in a recommended order.” DCF did not do that in this case....
CopyPublished | District Court of Appeal of Florida
Statutes (2002), as clarifying the intent of section
120.595(1), which was enacted in 1996), and Burgos
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 432, 2001 WL 45252
...se of delegated legislative authority. See Anderson Columbia Company, Inc. v. Board of Trustees of the Internal Improvement Trust Fund,
748 So.2d 1061 (Fla. 1st DCA 1999). Thereafter, the ALJ awarded appellees attorney’s fees and costs pursuant to section
120.595(2), Florida Statutes (1999). The Trustees now appeal the order of the ALJ assessing costs and fees against them in excess of $75,000. We routinely review orders of Administrative Law Judges finally disposing of claims for fees and costs under section
120.595....
...minals Operating Partnership, L.P., and certain other appellees nevertheless challenge our jurisdiction in this case, essentially arguing that the order is not subject to judicial review pursuant to section
120.68(1), Florida Statutes (2000) because section
120.595(2) does not in terms characterize the ALJ’s order as “final agency action.” We reject this argument and deny the motion to dismiss....
...” The order at issue here clearly “results from” a proceeding under section
120.56, since the successful prosecution of a challenge to a proposed rule pursuant to section
120.56(2) is a necessary precondi *339 tion to seeking such an award under section
120.595(2)....
CopyPublished | Florida 1st District Court of Appeal | 2017 Fla. App. LEXIS 518
...After the motions to dismiss were denied,
however, Petitioner voluntarily dismissed the complaints.
After Petitioner voluntarily dismissed the case, Respondent filed a motion
requesting attorneys’ fees under the administrative fee-shifting statute, section
120.595(1), Florida Statutes (2016)....
...r did not meet
the statutory definition of a non-prevailing party under Johnson v. Department of
Corrections,
191 So. 3d 965, 968 (Fla. 1st DCA 2016). Respondent then amended its
request for attorneys’ fees, conceding it could not prevail under section
120.595(1),
and claimed entitlement under a different theory, section
120.569(2)(e), Florida
2
Statutes (2016), which provides for an award of fees as a sanction for any “pleadings,
motions, or...
...departed from the essential requirements of the law. Cf. Town of Davie v. Santana, 98
4
So. 3d 262 (Fla. 1st DCA 2012) (holding that administrative law judge lacked
jurisdiction to reopen case to impose attorneys’ fees under section
120.595(1), when it
closed the case once the petition was dismissed and no motion for attorneys’ fees was
pending).
Thus, we GRANT review of this non-final agency action and QUASH the order
below for an evidentiary hearing.
WETHERELL and M.K....
CopyPublished | Florida 3rd District Court of Appeal
...Failure to file a notice of protest or failure to file a formal written protest shall
constitute a waiver of proceedings under this chapter.”); see also Lund v.
Dep’t of Health,
708 So. 2d 645, 647 (Fla. 1st DCA 1998) (“[T]he possibility
of an attorney’s fee award under section
120.595(5) is not a collateral legal
consequence which would preclude dismissal when the death of a party
renders the appeal moot.”); Ruck v....
...Eng’rs,
956 So. 2d
469, 469 (Fla. 1st DCA 2006) (“[W]e reject appellant’s argument that we
2
should decide the case on the merits for the sole purpose of determining his
right to attorney’s fees pursuant to section
120.595(5), Florida Statutes.”).
Hence, we dismiss the appeal.
Dismissed.
3
CopyPublished | Florida 1st District Court of Appeal
...harbor period in section
57.105(4), Florida Statutes, and before a motion for sanctions is filed); Town of Davie v. Santana ,
98 So.3d 262 (Fla. 1st DCA 2012) (holding that administrative law judge lacked jurisdiction to award attorney's fees under section
120.595(1), Florida Statutes, once the petition was dismissed, the case was closed and no motion for attorney's fees was pending)....
CopyPublished | Florida 1st District Court of Appeal
...harbor period in section
57.105(4), Florida Statutes, and before a motion for sanctions is filed); Town of Davie v. Santana ,
98 So.3d 262 (Fla. 1st DCA 2012) (holding that administrative law judge lacked jurisdiction to award attorney's fees under section
120.595(1), Florida Statutes, once the petition was dismissed, the case was closed and no motion for attorney's fees was pending)....
CopyPublished | Florida 1st District Court of Appeal
...harbor period in section
57.105(4), Florida Statutes, and before a
motion for sanctions is filed); Town of Davie v. Santana,
98 So. 3d
262 (Fla. 1st DCA 2012) (holding that administrative law judge
lacked jurisdiction to award attorney’s fees under section
120.595(1), Florida Statutes, once the petition was dismissed, the
case was closed and no motion for attorney’s fees was pending).
B.L....
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 6865406, 2013 Fla. App. LEXIS 20732
...had instituted against her. “Agreeing that the Commission [FCHR] overstepped its authority by substituting its own view of the facts for the ALJ’s findings, we reverse[d].” Id. at 297 . We also granted the motion Ms. Viering filed pursuant to section 120.595(5), Florida Statutes (2012), seeking attorney’s fees, and remanded to the Division of Administrative Hearings (DOAH) for determination of the amount of a reasonable fee....
...Viering did not commence the proceedings, and did not file an initial pleading that could have been served on the Department of Financial Services. Section
284.30, Florida Statutes does not apply to fee motions in administrative proceedings. Under section
120.595(5), Ms....
...dón Found, v. New Horizons Serv. Dogs, Inc.,
852 So.2d 416, 421 (Fla. 5th DCA 2003) (“A motion is not a pleading.”). The requirement that a litigant serve “a copy of the pleading claiming the fees” does not, in short, apply to motions under section
120.595(5). 3 See also A.L. v. Jackson Cnty. School Bd., supra. The FCHR also relies on section
760.35(3)(c), Florida Statutes (2012), 4 which took effect on October 1, 1989, ch. 89-321, §§ 8, 12 at 2068-69, Laws of Fla., long before section
120.595(5), Florida Statutes (2012), the authority upon which Ms. Viering relied in requesting attorney’s fees, was enacted. The second sentence of section
120.595(5), provides: Upon review of agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing appellant for the administrative proceeding and the appellate proceeding. Section
120.595(5) was enacted in 1996 and “for the first time since the enactment of the Florida Administrative Procedure Act in 1974, dramatically altered the ability of private litigants to recover attorneys’ fees and costs from government agencies that have overreached their legislatively delegated authority” in the specified way. Martha Edenfield, Attorney’s Fees and Costs, Fla. Bar Journal, Mar. 1997, at 73. Enacted subsequently, the second sentence of section
120.595(5) thus amended, albeit narrowly and discretely, the thither-to blanket prohibition set out in section
760.35(3)(c), which provides: “Costs or fees may not be assessed against the commission in any appeal from a final order issued by the commission under this subsection.” Attorneys’ fees remain unavailable under chapter 760 in most, if not all, the many instances authorized under analogous federal civil rights laws. But fees are authorized under the second sentence of section
120.595(5) whenever a reviewing “court finds that the [FCHR or any other] agency improperly rejected or modified findings of fact in a recommended order.” §
120.595(5), Fla....
...United States.,
551 F.2d 717 , 725 (6th Cir.1977) (citing United States v. Ohio Valley Co., Inc.,
510 F.2d 1184, 1189 (7th Cir.1975) and 2 A. Sutherland, Statutory Construction §§ 51.02, 51.05 (C. Sands 4th ed. 1973)). The mandatory language of the second sentence of section
120.595(5) does conflict with the language of section
760.35(3)(c), whether or not it conflicts with the core purpose of section
760.35(3)(e). The Legislature enacted section
760.35(3)(c) in 1989. See ch. 89-321, § 8, at 2068-69, Laws of Fla. The Legislature enacted section
120.595(5) in 1996....
...96-159, § 25, at 197, Laws of Fla. Chapter 96-159 makes no cross-reference, and legislative history is silent as to any possible conflict. See Hines,
551 F.2d at 725. Under this general rule of statutory interpretation, therefore, the later-enacted statute, section
120.595(5), abrogates section
760.35(3)(c) to the extent that section
760.35(3)(c) prohibits the assessment of costs and fees even when the FCHR has erroneously rejected or modified an ALJ’s findings of fact. Because section
120.595(5) amends section
760.35(3)(c) pro tanto, and because the notice requirement of section
284.30 does not apply to administrative proceedings, we do not disturb the ALJ’s order under review granting Ms....
...Viering "failed to satisfy the condition precedent requirement” that she "perfect service” by serving a copy of her complaint "at the commencement of her action, as required by section
284.30.” But Ms. Viering had no entitlement to fees at the point proceedings began. Her entitlement to fees under section
120.595(5) did not arise until the FCHR entered its final order improperly modifying the ALJ's fact findings, as discussed in the main appeal....
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 20864, 2006 WL 3680390
...quest for attorney’s fees. The agency’s action in failing to rule on his petition for formal hearing within 15 days as required by section
120.569(2)(a) constituted a gross abuse justifying an award of attorney’s fees to petitioner pursuant to section
120.595(5)....
CopyPublished | Florida 5th District Court of Appeal | 2005 WL 924314
...Given the information provided in the court order determining beneficiaries, we conclude the Division's refusal to accept that order as satisfying its request for requested documentation was a gross abuse of discretion. Lavondra should never have been required to file this appeal. Pursuant to section 120.595(5), [5] we grant *919 her motion for attorney's fees in the amount of $7,500, as requested by her attorney....
...te as beneficiaries. (c) Order. After formal notice and hearing, the court shall enter an order determining the beneficiaries or the shares and amounts they are entitled to receive, or both. [4] Chapter 121 governs the Florida Retirement System. [5] Section 120.595(5): (5) Appeals.When there is an appeal, the court in its discretion may award reasonable attorney's fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the a...
