Viering v. Florida Commission on Human Relations ex rel. Watson

128 So. 3d 967, 2013 WL 6865406, 2013 Fla. App. LEXIS 20732
District Court of Appeal of Florida·Decided December 31, 2013·No. No. 1D12-3287·Published·Cited by 1 cases

Opinion

ON MOTION FOR REVIEW

BENTON, J.

The Florida Commission on Human Relations (FCHR) seeks review of an administrative law judge’s (ALJ’s) order setting the amount of attorney’s fees and costs required to reimburse Ms. Viering for expenses incurred on appeal. Having earlier decided her entitlement to appellate attorney’s fees, we now uphold the ALJ’s order awarding fees and costs against FCHR.

In the underlying case, Viering v. Florida Commission on Human Relations ex rel. Watson, 109 So.3d 296 (Fla. 1st DCA 2013), Ms. Viering prevailed on the appeal of the final order entered in proceedings the FCHR 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. On remand, the ALJ conducted a hearing, and awarded appellate attorney’s fees and costs to Ms. Viering.

Under the Administrative Procedure Act, administrative agencies may not modify an ALJ’s factual findings if supported by competent and — in light of the record as a whole — substantial evidence. See id. at 298; Brevard Cnty. Sheriff’s Dep’t v. Fla. Comm’n on Human Relations, 429 So.2d 1235, 1237 (Fla. 5th DCA 1983) (“What the Commission has done, in effect, is ignored or rejected the hearing officer’s findings of fact without determining that they are not supported by competent, substantial evidence. This it cannot do.”). One reason the ALJ’s findings are looked to is that the reviewing agency is often, as here, itself a litigant. See Lantz v. Smith, 106 So.3d 518, 519 (Fla. 1st DCA 2013) (holding that an administrative adjudicatory body cannot modify “pivotal factual findings” of the ALJ where competent, substantial evidence supported the findings); Gross v. Dep’t of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002) (holding that “if there is competent substantial evidence to support the findings of fact in the record, the Florida courts, including this court, have consistently held that the agency may not reject them, modify them, substitute its findings, or make new findings”); Knapp v. Unemployment Appeals Comm’n, 643 So.2d 127, 127 (Fla. 4th DCA 1994) (“Although an agency may reject a hearing officer’s finding of fact after it has read the entire record, the record must disclose the complete absence of evidence to support the factual finding.”). “The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” § 120.57(1)((), Fla. Stat. (2012).

[969] Its unwarranted rejection of the ALJ’s findings notwithstanding, the FCHR argues that appellant’s failure to comply with notice provisions in section 284.30, Florida Statutes (2012), precluded any award of attorney’s fees. Section 284.30 requires a “party to a suit in any court” claiming attorney’s fees against the state to serve a copy of “the pleading” on the Department of Financial Services.1 No court has ever held, however, that section 284.30 applies to administrative proceedings, and we decline to do so today. We acknowledged the issue in Florida Medical Center v. Department of Health & Rehabilitative Services, 511 So.2d 677, 678 n. 1 (Fla. 1st DCA 1987), but expressly did not resolve the issue then because it was unnecessary to the decision in Florida Medical Center. Although belatedly,2 the FCHR asks us to address the question now.

The text of the statute plainly limits applicability of the provision to a “party to a suit in any court.” § 284.30, Fla. Stat. (2012). Administrative proceedings under Chapter 120 are not “a suit in any court.” See, e.g., A.L. v. Jackson Cnty. Sch. Bd., 127 So.3d 758 (Fla. 1st DCA 2013); Wesley Group Home Ministries, Inc. v. City of Hallandale, 670 So.2d 1046, 1049 (Fla. 4th DCA 1996) (explaining that, under 42 U.S.C. § 1988, whether fees are allowed depends on whether there has been a court action or merely administrative proceedings).

The section 284.30 notice requirement does not contemplate administrative proceedings, particularly those the state institutes against a citizen. In the present case, the administrative proceeding in which the FCHR charged Ms. Viering with violating the Fair Housing Act was not a “proceeding[ ] against the state, but rather one by the state.” N.S. v. Dep’t of Children & Families, 119 So.3d 558, 561 (Fla. 5th DCA 2013) (internal quotations omitted). She never filed a complaint and was under no obligation to file an answer. Ms. 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. Viering filed a motion for attorney’s fees. Motions are not pleadings. See Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261, 1262-63 (Fla.1998) (correcting [970] a statement that the term “pled” included filing motions); N.S., 119 So.3d at 561 (holding section 284.30 does not apply to a motion for fees under section 57.105, Florida Statutes (2012)); Sardón 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.

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Viering v. Florida Commission on Human Relations ex rel. Watson, 128 So. 3d 967, 2013 WL 6865406, 2013 Fla. App. LEXIS 20732 (Fla. Ct. App. 2013).

128 So. 3d 967 (Viering v. Florida Commission on Human Relations ex rel. Watson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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