5D01-1163 Mazer v. Orange Co.

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-1163

Case Date: 03/25/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

JEFFREY MAZER, d/b/a RAMONA'S PARADISE INN, Appellant, v. Case No. 5D01-1163 ORANGE COUNTY, FLORIDA, etc., Appellee. / Opinion filed March 28, 2002 Appeal from the Circuit Court for Orange County, Richard F. Conrad, Cynthia Z. Mackinnon, and W. Rogers Turner, Judges. David A. Wasserman, Winter Park, for Appellant. Joel D. Prinsell, Senior Assistant County Attorney, Orange County Attorney's Office, Orlando, for Appellee. SAWAYA, J. ON MOTION FOR REHEARING Based on the Appellee's motion for rehearing and pursuant to the order granting rehearing dated January 22, 2002, we withdraw our previous opinion dated December 14, 2001, and substitute the following opinion in its stead. Jeffrey Mazer appeals the order dismissing his petition for writ of mandamus. Mazer contends that the trial court erroneously determined the case was moot and thus erroneously denied his motion for attorney's fees. The only issue before us is the mootness issue. We

reverse. Mazer's petition explains that he submitted a public records request to the Orange County Building Department seeking information regarding procedures which must be followed for demolition of a building. Mazer and his attorney attended a subsequent inspection of the requested documents and marked several documents for copying, including the Unsafe Building and Abatement Code (the Code) which Orange County had adopted by reference as "the law relative to unsafe building abatement in Orange County . . . ." This Code was identified by Orange County as the law by which it had demolished Mazer's building. When he went to pick up his requested copies, Mazer discovered that a copy of the Code was not included. He was subsequently advised by Orange County that it had no extra copies of the Code for distribution or sale and that federal copyright law prohibited the County from making a photocopy of the entire Code for Mazer. Mazer contends in his mandamus petition that he is in need of the Code to attach to his amended complaint in a judicial proceeding. He asked that Orange County be ordered to provide the Code and further sought attorney's fees for bringing the petition, citing section 119.12, Florida Statutes (1999). The trial court ordered Orange County to respond within twenty days, but subsequently granted Orange County's request for an extension of time to file the response. The day before the response was due, Orange County wrote Mazer that it had recently purchased extra copies of the Code from the publisher and, based upon his previous request, Mazer could purchase a copy at cost. The next day, Orange County filed its response and argued that mandamus was not appropriate because, inter alia, Mazer had no clear legal right to a photocopy of the Code where, by federal law, copyright issues prevented Orange 2

County from photocopying the Code. Orange County pointed out, too, that it had already provided Mazer with a copy of the Code that it had ordered from the publisher. Mazer filed a response wherein he argued the merits of the copyright issue and asserted that his petition was not moot because the issue was capable of repetition. Most importantly to the instant appeal, Mazer reiterated his request for attorney's fees. The circuit court, sitting in a three-judge panel, dismissed Mazer's petition as moot on the ground that Mazer had received the requested Code. Mazer moved for rehearing or to alter or amend the judgment, arguing that he was entitled to attorney's fees for having to file the mandamus to obtain the requested public records. Orange County filed a response arguing against the award of fees. The trial court denied the motion for rehearing, holding that "Orange County is correct in asserting that an award of attorney's fees would have been appropriate under

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