120.595
Attorney’s fees.
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120.595 Attorney’s fees.—
(1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.57(1).—
(a) The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.
(b) The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and 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.
(c) In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection. In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
(d) In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney’s fees.
(e) For the purpose of this subsection:
1. “Improper purpose” means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity.
2. “Costs” has the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.
3. “Nonprevailing adverse party” means a party that has failed to have substantially changed the outcome of the proposed or final agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial 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 recommended order shall state whether the change is substantial for purposes of this subsection. In no event shall the term “nonprevailing party” or “prevailing party” be deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.
(2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION 120.56(2).—If the appellate court or administrative law judge declares a proposed rule or portion of a proposed rule invalid pursuant to s. 120.56(2), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency’s actions are “substantially justified” if there was a reasonable basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the proceedings, the appellate court or administrative law judge shall award reasonable costs and reasonable attorney’s fees against a party if the appellate court or administrative law judge determines that a party participated in the proceedings for an improper purpose as defined by paragraph (1)(e). No award of attorney’s fees as provided by this subsection shall exceed $50,000.
(3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION 120.56(3) AND (5).—If the appellate court or administrative law judge declares a rule or portion of a rule invalid pursuant to s. 120.56(3) or (5), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency’s actions are “substantially justified” if there was a reasonable basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the proceedings, the appellate court or administrative law judge shall award reasonable costs and reasonable attorney’s fees against a party if the appellate court or administrative law judge determines that a party participated in the proceedings for an improper purpose as defined by paragraph (1)(e). No award of attorney’s fees as provided by this subsection shall exceed $50,000.
(4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.56(4).—
(a) If the appellate court or administrative law judge determines that all or part of an agency statement violates s. 120.54(1)(a), or that the agency must immediately discontinue reliance on the statement and any substantially similar statement pursuant to s. 120.56(4)(f), a judgment or order shall be entered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds.
(b) Upon notification to the administrative law judge provided before the final hearing that the agency has published a notice of rulemaking under s. 120.54(3)(a), such notice shall automatically operate as a stay of proceedings pending rulemaking. The administrative law judge may vacate the stay for good cause shown. A stay of proceedings under this paragraph remains in effect so long as the agency is proceeding expeditiously and in good faith to adopt the statement as a rule. The administrative law judge shall award reasonable costs and reasonable attorney’s fees accrued by the petitioner prior to the date the notice was published, unless the agency proves to the administrative law judge that it did not know and should not have known that the statement was an unadopted rule. Attorneys’ fees and costs under this paragraph and paragraph (a) shall be awarded only upon a finding that the agency received notice that the statement may constitute an unadopted rule at least 30 days before a petition under s. 120.56(4) was filed and that the agency failed to publish the required notice of rulemaking pursuant to s. 120.54(3) that addresses the statement within that 30-day period. Notice to the agency may be satisfied by its receipt of a copy of the s. 120.56(4) petition, a notice or other paper containing substantially the same information, or a petition filed pursuant to s. 120.54(7). An award of attorney’s fees as provided by this paragraph may not exceed $50,000.
(c) 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.
(d) If the agency prevails in the proceedings, the appellate court or administrative law judge shall award reasonable costs and attorney’s fees against a party if the appellate court or administrative law judge determines that the party participated in the proceedings for an improper purpose as defined in paragraph (1)(e) or that the party or the party’s attorney knew or should have known that a claim was not supported by the material facts necessary to establish the claim or would not be supported by the application of then-existing law to those material facts.
(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 appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion. 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.
History.—s. 25, ch. 96-159; s. 11, ch. 97-176; s. 48, ch. 99-2; s. 6, ch. 2003-94; s. 13, ch. 2008-104; s. 3, ch. 2017-3.
Notes of Decisions
Cited in 48
cases (6 in the last 5 years), 1997–2026 · leading case: GEL Corp. v. Dept. of Environmental Protection
GEL Corp. v. Dept. of Environmental Protection (2004)
“" 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…”
French v. Department of Children & Families (2006)
“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.”
Environmental Trust v. State (1998)
“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.”
Lund v. Department of Health (1998)
“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.”
Randall B. Johnson v. Department of Corrections (2016)
“5th DCA 2006) (current version of § 120.595 “only authorizes administrative law judges to consider fee requests”).”
Residential Plaza at Blue Lagoon, Inc. v. Agency for Health Care Admin. (2005)
“" § 120.595(5), Fla. Stat. (2002). This is such a case.”
Martin County Conservation Alliance v. Martin County (2011)
“Section 120.595(5), Florida Statutes (2009), provides, in pertinent part, that "[w]hen 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,…”
JFK Medical Center Limited etc. v. Shands Jacksonville Medical Center etc. (2018)
“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. This possible right to attorney’s…”
Town of Davie v. Santana (2012)
“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…”
Board of Regents v. Winters (2005)
“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…”
Procacci Commercial Realty v. DHRS (1997)
“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. (Supp.1996), see Titzel v.”
Viering v. Florida Commission on Human Relations ex rel. Watson (2013)
“” § 120.595(5), Fla. Stat. (2012). The Legislature’s authorization of attorney’s fees as a means to prevent agencies from overstepping their authority — or, if they do overstep, to compensate private litigants for legal fees they have incurred as a result — is clear and…”
— 120.595(1) — 10 cases
GEL Corp. v. Dept. of Environmental Protection (2004)
“" 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…”
Town of Davie v. Santana (2012)
“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…”
Randall B. Johnson v. Department of Corrections (2016)
“5th DCA 2006) (current version of § 120.595 “only authorizes administrative law judges to consider fee requests”).”
French v. Department of Children & Families (2006)
“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.”
— 120.595(1)(d) — 1 case
— 120.595(2) — 7 cases
Environmental Trust v. State (1998)
“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.”
JFK Medical Center Limited etc. v. Shands Jacksonville Medical Center etc. (2018)
“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. This possible right to attorney’s…”
— 120.595(3) — 2 cases
— 120.595(4) — 7 cases
J.S. v. C.M. (2012)
Environmental Trust v. State (1998)
“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.”
— 120.595(4)(a) — 5 cases
J.S. v. C.M. (2012)
— 120.595(4)(b) — 1 case
J.S. v. C.M. (2012)
— 120.595(5) — 22 cases
Lund v. Department of Health (1998)
“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.”
Residential Plaza at Blue Lagoon, Inc. v. Agency for Health Care Admin. (2005)
“" § 120.595(5), Fla. Stat. (2002). This is such a case.”
Martin County Conservation Alliance v. Martin County (2011)
“Section 120.595(5), Florida Statutes (2009), provides, in pertinent part, that "[w]hen 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,…”
Board of Regents v. Winters (2005)
“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…”
Procacci Commercial Realty v. DHRS (1997)
“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. (Supp.1996), see Titzel v.”
— 120.595(6) — 1 case
Randall B. Johnson v. Department of Corrections (2016)
“5th DCA 2006) (current version of § 120.595 “only authorizes administrative law judges to consider fee requests”).”
— 120.595(l)(a) — 1 case
Randall B. Johnson v. Department of Corrections (2016)
“5th DCA 2006) (current version of § 120.595 “only authorizes administrative law judges to consider fee requests”).”
— 120.595(l)(b) — 3 cases
French v. Department of Children & Families (2006)
“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.”
Town of Davie v. Santana (2012)
“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…”
Randall B. Johnson v. Department of Corrections (2016)
“5th DCA 2006) (current version of § 120.595 “only authorizes administrative law judges to consider fee requests”).”
— 120.595(l)(c) — 1 case
French v. Department of Children & Families (2006)
“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.”
— 120.595(l)(e) — 1 case
Randall B. Johnson v. Department of Corrections (2016)
“5th DCA 2006) (current version of § 120.595 “only authorizes administrative law judges to consider fee requests”).”
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