STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Point East Three Condominium Corporation, Inc., Petitioner, v. Fee Case No. 2009-05-4418 Rel. Case No. 2008-00-4477 Lilian P. Breziner, Respondent. / FINAL ORDER ON MOTION FOR PREVAILING PARTY ATTORNEY S FEES AND COSTS On October 15, 2009, Point East Three Condominium Corporation, Inc. (the Association), the legal entity responsible for the operation of the Point East Three Condominium located in Dade County, Florida, moved for an award of $20,014.53 in attorney s fees and costs. On October 10 and 23, 2009, Lillian P. Breziner (the Respondent) filed a response to the Association s motion. This fees case arises from arbitration case number 2009-05-4477. In the underlying case, the Association alleged that the Respondent was maintaining a dog in her unit in violation of the condominium s governing documents. In her answer, the Respondent claimed that the dog was a reasonable accommodation under the Federal and Florida Fair Housing Acts. Because the Respondent had filed a Housing Discrimination Complaint, the underlying case was administratively closed until the Housing Discrimination Complaint was resolved. The State of Florida Commission on Human Relations (FCHR) 1
requested that the Florida Division of Administrative Hearings assign the matter to an administrative law judge to conduct a formal hearing. On April 29, 2009, the administrative law judge issued a recommended order finding that Ms. Breziner failed to prove that she suffers from a handicap within meaning of either the Florida Fair Housing Act or the Federal Fair Housing Act. Therefore, the judge recommended that FCHR enter a final order dismissing Ms. Breziner s petition. On July 1, 2009, FCHR entered a Final Order Dismissing Petition for Relief From A Discriminatory Housing Practice. The order adopted the administrative law judge s finding of facts and conclusions of law. By order dated August 19, 2009, the Respondent was directed to show cause why the underlying case should not be reopened and a summary final order entered in favor of the Association. On September 13, 2009, A Summary Final Order was entered in the underlying case ordering the Respondent to permanently remove her dog. 1 Pursuant to 718.1255(4)(k), Fla. Stat., 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)). The Summary Final Order entered the in the underlying case granted the Association its requested relief. Therefore, the Association is the prevailing party and is entitled to recover its reasonable attorney s fees and costs. 1 A corrective Summary Final Order was entered on November 12, 2009, nunc pro tunc September 17, 2009. 2
In her response to the Association s motion, the Respondent indicates that she suffers from a mental handicap and her financial situation is poor. Finally, she states that she was not informed as to what was going on in her case. Any issues regarding the Respondent s entitlement to keep her pet as a reasonable accommodation for emotional support was or should have been raised by the Respondent during the Fair Housing discrimination litigation. The Respondents financial status may not be considered by the arbitrator. During the arbitration proceeding and prior to retaining legal counsel, the Respondent was copied with all orders issued in the underlying case. After the Respondent retained an attorney, she was copied with all orders. The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by the association. In Florida Patient s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), the Supreme Court adopted the federal lodestar approach as the foundation for setting reasonable fee awards. This approach requires the trial court to determine a lodestar figure by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party s attorney. Fashion Tile & Marble v. Alpha One Construction, 532 So. 2d 1306 (Fla. 2d DCA 1988). In undertaking this analysis, the reasonableness of the hourly rate and the number of hours reasonably expended must be separately considered. See Rowe, 472 So. 2d at 1150-51. In determining the reasonableness of attorney s fees, the criteria set forth in Rule 4-1.5, Rules Regulating the Florida Bar, Rules of Professional Conduct [then Disciplinary Rule 2-106(b) of the Florida Bar Code of Professional Responsibility] should be applied. Id. at 1150. The factors for 3
determining a reasonable attorney s fee set forth in Rule 4-1.5 are basically the same as the factors set forth in Fla. Admin. Code R. 61B-45.048, The Association seeks reimbursement for the efforts of Scott R. Shapiro, Esq. at the hourly rate of $225.00 per hour. At the time of entry of the final order in the underlying case, Mr. Shapiro had been admitted to practice law in the State of Florida for almost 4 years. The requested rate is unreasonable for an attorney with Mr. Shapiro s experience. A reasonable rate is $175.00 per hour. The Association also seeks reimbursement for the efforts of Louis Goetz at the rate of$115.00 per hour. It is not clear from the Association s motion and the case file who Louis Goetz is and what his qualifications are. Therefore, the Association will not be awarded any time for Mr. Goetz s efforts. The Association seeks reimbursement for efforts spent by their legal counsel and staff during the Fair Housing litigation. 2 These efforts were not part of the arbitration proceeding and may not be awarded by the arbitrator. Excluding the time spent litigating the Fair Housing dispute results in an award of 12.8 hours for the efforts of Mr. Shapiro at the rate of $175.00, totaling $2,240.00. The Association seeks to recover $1,464.53 in costs. The Association s request includes $34.59 for postage. Costs for mail and messenger services are not recoverable, as they are routine overhead expenses that should be incorporated into the attorney s hourly rate. See Barrera, individually and Bleau Fontaine Condo. Number Two, Inc. v. Bleau Fontaine Community Ass n., Inc., Arb. No. 01-2223, Final Order on Attorney s Fees (January 26, 2001). 2 In addition to Mr. Shapiro and Mr. Goetz, the Association sought reimbursement for the work of Eric Glazer, Esq, and Kim related to the Fair Housing proceeding. 4
The Association also seeks to recover costs related to the Fair Housing litigation consisting of $12.00 for parking $1,290.00 for court reporter costs. Because these costs were not incurred as part of the arbitration proceeding, they may not be awarded. The Association claims costs of $75.45 for on-line computer research and $2.45 for Accurint (Advance People Search). It is not clear if these costs are related to the arbitration. However, costs for computer assisted legal research are not recoverable. Denber v. Tidy Island Condo. Ass n, Inc., Arb. Case No. 2008-01-1470, Final Order on Motion for Attorney s Fees and Cost (June 11, 2008). The Association requests reimbursement for the $50.00 arbitration filing fee. The fee was necessary and therefore, is awarded. Based upon the foregoing, it is ORDERED: By March 1, 2010, Lillian P. Breziner shall pay Point East Three Condominium Corporation, Inc. $2,290.00 for its attorney s fees and costs incurred in the underlying case. DONE AND ORDERED this 27 th day of January, 2010, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Telephone: 850.414.6867 Facsimile: 850.487.0870 5
Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 27 th day of January, 2010: Scott R. Shapiro, Esq. Glazer & Associates, P.A. 3113 Stirling Road Second Floor Hollywood, FL 33312 Barrett R. Charapp, Esq. 16400 Collins Avenue #343 Sunny Isles Beach, Florida 33160 Lilian Breziner 2920 Pointe East Drive Apt. #N-508 Aventura, FL 33160 James W. Earl, Arbitrator 6