The administrative procedure act under chapter 120, Florida Statutes, has several attorneys’ fee provisions.  One such provision is provided under section 120.595(1), Florida Statutes.

Under that statute, a litigant can move for attorneys’ fees whenever they believe the “non-prevailing adverse party” participated in the proceeding for an improper purpose.  § 120.595(1)(b), Fla. Stat.  An improper purpose includes participating in the proceeding primarily to harass, delay, or increase costs.  §§ 120.595(1)(c) and (e), Fla. Stat.

As proving “improper purpose” can be difficult, the statute states that the administrative law judge shall “consider” whether the non-prevailing adverse party participated in two or more prior proceedings against the same party, and those proceedings lacked factual or legal merit.  § 120.595(1)(c), Fla. Stat.  If such a finding is made, a rebuttable presumption arises that the party participated in the pending proceeding for an improper purpose.

The First District Court of Appeal recently addressed the question of whether the prior proceeding provision must be met, before fees can be awarded under section 120.595(1).  In Diaz v. Nw Fla. Water Mgmt. Dist., the First DCA held that the prior proceeding provision is not a requirement for fees under the statute.

To reach its holding, the First DCA analyzed the language of section 120.595(1)(c), which states (1) the administrative law judge need only “consider” whether the party wrongly engaged in prior proceedings and (2) such a finding creates only a rebuttable presumption, not entitlement to fees.

Because the judge need merely “consider” prior proceedings, and such consideration would, at the most, create a rebuttable presumption, the First DCA confirmed that fees are not contingent on the prior proceeding provision.

Although beyond the scope of this blog, it is interesting to note that fees under section 120.595(1) can only be awarded against a “non-prevailing adverse party.”  A “non-prevailing adverse party” is defined as “the 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. Stat.

Because an agency initiating a proceeding does not seek to change the outcome of its action, the Division of Administrative Hearings has consistently concluded that fees under this statute cannot be awarded against agencies who initiate the proceedings.   Duval Cnty. Sch. Bd. v. Rhona Silver, Case No. 09-2987 (Fla. DOAH, Jan. 10, 2011) (Recommended Order).

Jonathan Taylor is the Director of Appeals with The Law Offices of Moffa, Sutton, & Donnini, P.A.  Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals.  Mr. Taylor also volunteers with Guardian ad Litem to handle appellate matters.  Mr. Taylor can be reached at 954-234-2884 or