STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Pompano Beach Club North Association, Inc., Petitioner, v. Fee Case No Rel. Case No Anthony Arlotta and Gerrilyn Arlotta, Respondents. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On February 2, 2006, the respondents filed a motion for attorney s fees and costs, seeking recovery of $15, in attorney s fees and $ in costs as the prevailing party in the related arbitration proceeding (arbitration case number ). On February , an order permitting the association to respond to the respondents motion was issued, and the association filed its objection to the motion on March 1, 2006, arguing that the hourly rate sought by the respondents attorney was excessive as was the time expended by respondents counsel for certain activities while litigating the case. The association also objected to the respondents recovery of fees incurred for work performed by counsel prior to the date of filing of the arbitration petition and for activities following the entry of the final order in the related arbitration proceeding, and to the costs associated with service of subpoenas. On March 10, 2006, the respondents submitted a response to the association s objections. This order is issued after consideration of all arguments submitted by the parties. 1

2 Pursuant to section (4)(k), Florida Statutes, the prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorney s fees in an amount determined by the arbitrator. A party is a prevailing party if it succeeds on a significant issue in the arbitration and achieves some of the benefit sought in bringing the action. See Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 809 (Fla. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). In the related arbitration proceeding, the respondents successfully defended maintaining a washer and dryer in their unit against the association s claim that the presence of these appliances in the unit constituted a violation of the association s governing documents. An order denying the claim for relief pled by the association in its arbitration petition was issued on December 23, Accordingly, the respondents are properly considered the prevailing parties in the underlying arbitration proceeding and are entitled to an award of reasonable attorney s fees and costs. The respondents were represented by Guy Shir, Esquire, who charged an hourly rate of $ for his legal services. In determining a reasonable fee for Mr. Shir s legal services, the factors specified in rule 61B45.048(7), Florida Administrative Code, must be considered. The respondents assert that $ is a reasonable fee for counsel s services, taking into consideration Mr. Shir s experience in association law and that this rate is similar to the hourly rates charged by attorneys practicing in the area of association law in neighboring counties located in the South Florida Area. The respondents also argue the requested hourly rate is justified because of increasing overhead expenses and costs that must be borne by their attorney. 2

3 Based on the information provided to the arbitrator as to the reasonableness of the requested fees, the arbitrator finds that a reasonable hourly rate for Mr. Shir s legal services is $ While Mr. Shir has been a member of the Florida Bar for approximately 9 years and has considerable experience in the area of community association law, it has not been shown that his experience and knowledge in this area warrant an award of an hourly rate that exceeds that of other attorneys who practice condominium association law in his locality and who have been awarded fees within the range of $ to $ per hour in similar arbitration proceedings. Therefore, the respondents will be compensated for Mr. Shir s legal services at an hourly rate of $ The respondents request recovery of hours in defending their position against the association s claims. Mr. Shir s time records reflect that 11 hours of this total were not incurred during the arbitration proceeding. Therefore, the time incurred for legal services rendered from January 11, 2005 through April 20, 2005, and from January 3, 2006 through January 18, will be disallowed. See Grogis v. Marina Harbor South Assn., Inc., Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (June 2, 2005)(arbitrator denied prevailing party s request for fees for legal services that were not incurred in the course of the related arbitration case). However, the arbitrator finds that the remainder of the time expended by Mr. Shir in the underlying arbitration proceeding was reasonable. Accordingly, the respondents 1 The time records include one entry following that of January 18, 2006, dated August 16, While this may have been a typographical error, and the time entry may have been properly entered as January 16, 2006, the time will not be awarded, as it still was incurred after the close of the arbitration proceeding. 3

4 are awarded hours of counsel s time at an hourly rate of $ for a total of $10, The respondents also seek recovery of $ in costs associated with serving subpoenas on two witnesses who testified at the final hearing. On its face, this cost seems extraordinary. Respondents counsel attached to his motion only an affidavit that this cost was incurred on behalf of the respondents, but there was no invoice attached which explains why the cost of serving two witness subpoenas exceeds a range of $25.00 to $50.00, which has typically been awarded as reasonable service costs in other cases. Accordingly, the respondents are awarded $50.00 in service costs for each witness subpoena, for a total of $ Accordingly, the association shall pay the sum of $10, to the respondents within thirty (30) days of the date of this order. Florida. DONE AND ORDERED this 25 th day of May, 2006, at Tallahassee, Leon County, Catherine Bembry, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida CERTIFICATE OF MAILING 4

5 I hereby certify that a true and correct copy of the foregoing final order was furnished by U.S. mail, postage prepaid, this 25 th day of May, 2006, to: Guy M. Shir, Esquire Kahan,Shir & Associates, P.L N.W. Corporate Blvd.,Ste. 102 Boca Raton, Florida Randall K. Rogers, Esquire 621 N.W. 53 rd Street, Ste. 300 Boca Raton, Florida Catherine Bembry RIGHT TO TRIAL DE NOVO As provided by section , Florida Statutes, this final order may be appealed by filing a complaint for trial de novo in a court of competent jurisdiction in the circuit in which the condominium is located within 30 days of the entry and mailing of this final order. This final order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. 5