STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GORDON SANDS, )

)

Petitioner, )

)

vs. ) Case No. 00-0268FE

)

CARON SPEAS, )

)

Respondent. )

)

RECOMMENDED ORDER ON REMAND

Pursuant to notice, a final hearing was held in this case on January 25, 2001, by telephone conference, before Carolyn

S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Allen C.D. Scott, II, Esquire

Scott and Scott

101 Orange Street

St. Augustine, Florida 32084

For Respondent: Peter Ticktin, Esquire

Scholl, Ticktin and Associates Net First Plaza

5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080

STATEMENT OF THE ISSUE

The issue for determination is what amount of attorney's fees and costs should be awarded to Petitioner for costs incurred on the day of the May 2, 2000, administrative hearing and, thereafter, to bring this matter to a conclusion.

PRELIMINARY STATEMENT

Respondent, Caron Speas, filed a Complaint and an Amended Complaint alleging that Petitioner, Gordon Sands, had violated various provisions of the Code of Ethics for Public Officers and Employees. After an investigation, the Commission on Ethics dismissed the complaints for lack of probable cause.

Subsequently, Petitioner Sands filed a Petition for Costs and Attorney's Fees against Respondent Speas pursuant to Subsection 112.317(8), Florida Statutes. The matter was forwarded to the Division of Administrative Hearings, and a formal hearing was conducted on May 2, 2000.

A Transcript of the proceeding was filed with the Division of Administrative Hearings on May 30, 2000, and, thereafter, the parties filed Proposed Recommended Orders. On September 5, 2000, the undersigned issued a Recommended Order which found that Petitioner was entitled to attorney's fees and costs pursuant to Subsection 112.317(8), Florida Statutes, and Rule 34-5.0291(1), Florida Administrative Code. See Gordon Sands v. Caron Speas, DOAH Case No. 00-0268FE, Recommended Order entered September 5, 2000. That Recommended Order was transmitted to the Commission on Ethics on

September 5, 2000.

The Commission on Ethics entered an Order of Remand to the Division of Administrative Hearings (Order of Remand) on November 17, 2000, and pursuant thereto, on or about December 18, 2000, the Commission on Ethics remanded the matter to the Division of Administrative Hearings to conduct

further evidentiary proceedings to resolve remaining disputed issues of material fact. Specifically, the Order of Remand required that the Administrative Law Judge conduct additional proceedings to establish the amount of attorney's fees and costs incurred by Petitioner the day of the May 2, 2000, administrative hearing and, thereafter, to bring the matter to a conclusion.

In accordance with the Order of Remand, the undersigned issued a Notice of Hearing on January 9, 2001, and conducted the hearing as noticed.

At the final hearing, Petitioner called two witnesses: Judith Ginn, Esquire, and Allen C.D. Scott, II, Esquire.

Pursuant to stipulation of the parties, Ms. Ginn was accepted as an expert witness. Petitioner offered and had two exhibits received into evidence. Respondent testified on her own behalf and offered no exhibits into evidence. During the hearing, the undersigned advised the parties that the record in the case would remain open to allow the filing of any invoices or billing statements from the court reporter who

recorded the proceeding. On March 20, 2001, Petitioner filed two invoices from St. Augustine Court Reporters. These invoices, marked Petitioner's Exhibits 3 and 4, were received into evidence and are a part of the record herein.

The parties waived their right to file proposed recommended orders. However, counsel for Respondent requested and was given ten (10) days from the day of the hearing to file legal authority on the issue of whether Petitioner was entitled to fees incurred at the hearing to determine the amount of attorney's fees that should be awarded. At the parties' request, Petitioner was given five (5) days to respond to the aforementioned post-hearing submittal by Respondent, and Respondent was given five (5) days to file a rebuttal. Respondent filed no legal authority on the aforementioned issue, but on February 12, 2001, Respondent filed a Motion to Re-Open the Case Due to New Evidence (Motion to Re-Open Case). On February 19, 2001, Petitioner filed a Response to Motion to Re-open Case (Response) and on

February 26, 2001, Respondent filed a reply to Petitioner's Response. By Order issued February 28, 2001, Respondent's Motion to Re-Open Case was denied.

A Transcript of the proceeding was filed on March 20, 2001. As noted above, the parties waived their right to and, accordingly, did not submit proposed recommended orders.

FINDINGS OF FACT

1. On September 5, 2000, the Recommended Order in the proceeding below found that Petitioner, Gordon Sands, was entitled to attorney's fees and costs pursuant to Subsection 112.317(8), Florida Statutes, and Rule 34-

   5.0291(1), Florida Administrative Code. See Gordon Sands v. Caron Speas, DOAH Case No. 00-0268FE, Recommended Order issued December 18, 2000 (Recommended Order). Moreover, it was determined that Respondent, Caron Speas, as the complainant within the meaning of Subsection 112.317(8), Florida Statutes, was liable for such costs and reasonable attorney's fees.

2. Based on the evidence presented at the May 2, 2000, formal administrative hearing, the Recommended Order established that Petitioner should be awarded costs and reasonable attorney's fees of $3,050.00. This amount included only those costs and attorney's fees incurred up to May 1, 2000, the day prior to the initial administrative hearing in this matter. However, the Recommended Order noted, that pursuant to the holding in Kaminsky v. Liberman, 675 So. 2d

   261 (Fla. 4th DCA 1996), Petitioner was entitled to costs and reasonable attorney's fees incurred the day of the administrative hearing and, thereafter, to bring this matter to a conclusion.

3. The Recommended Order established that $125.00 was a reasonable hourly rate for Petitioner's attorney and concluded that the parties should be able to stipulate to the costs and reasonable attorney's fees incurred on May 2, 2000, the day of the administrative hearing, and, thereafter, to bring the matter to a conclusion. According to the Recommended Order and pursuant to the holding in Kaminsky, 675 So. 2d 261, if the parties could not reach a stipulation, a hearing would have to be held to determine the amount of such costs and reasonable attorney's fees.

4. Although the Recommended Order determined that Petitioner was entitled to costs and reasonable attorney's fees of $125.00 an hour, the parties were unable or unwilling to stipulate to the amount of fees and costs incurred on

   May 2, 2000, the day of the administrative hearing below, and, thereafter, to bring this matter to a conclusion. As a result of the parties' failure to stipulate to such fees and costs, the January 25, 2001, hearing was necessary to resolve that limited issue.

5. In defending himself against the allegations in the Complaint and Amended Complaint filed by Respondent and in all matters necessary to bring this matter to conclusion, Petitioner was represented by Allen C.D. Scott, II, Esquire. Mr. Scott's hourly rate is $125.00.

6. The parties stipulated that Mr. Scott's hourly rate of $125.00, as established in the proceeding below, is reasonable.

7. From May 2, 2000, through January 18, 2001, inclusive, Mr. Scott expended a total of 33.21 hours in hearing and for other work performed to bring this matter to a conclusion. Four of these hours, billed at the hourly rate of

   $125.00, are attributable to work done by an associate in Mr. Scott's firm. The associate, rather than Mr. Scott, attended the November 17, 2000, meeting of the Commission on Ethics which addressed matters related to the underlying case.

8. Petitioner also incurred court reporting costs of

   
   

   $582.90 in connection with the underlying May 2, 2000, proceeding.

9. Additionally, Petitioner incurred attorney's fees and costs as a result of the January 25, 2001, administrative hearing conducted to determine the amount of attorney's fees and costs incurred on the day of the May 2, 2000, hearing and, thereafter, to bring this matter to a conclusion.

10. Mr. Scott expended two and a half hours preparing for and attending and participating in the January 25, 2001, hearing in the instant case.

11. Between May 2, 2000, and January 25, 2001, inclusive, Petitioner incurred reasonable attorney's fees of

    $4,463.75. Of this amount, $4,151.25 represents attorney's fees for time expended by Mr. Scott in preparation, attendance, and participation in the May 2, 2000, administrative hearing; time expended by Mr. Scott in performing post-hearing work related to the May 2, 2000, hearing and preparing Petitioner's Proposed Recommended Order; and time expended by Mr. Scott's associate in attending the Commission on Ethics November 17, 2000, meeting concerning the subject case. The remaining $312.50 represents costs incurred by Petitioner as a result of the time Mr. Scott expended in preparation, attendance, and participation in the January 25, 2001, final hearing.

12. The attorney's fees delineated in paragraph 11 above were reasonable. Moreover, the foregoing attorney's fees were incurred by Petitioner in order to successfully defend allegations in the Complaint and Amended Complaint brought by Respondent and to bring the matter to a conclusion.

13. In the instant proceeding, Petitioner incurred taxable costs in the amount of $375 for the preparation and hearing time of his expert witness, Judith Ginn, Esquire. These costs were reasonable and necessary, in light of the fact that the parties were unable to reach a stipulation regarding the attorney's fees and costs incurred by Petitioner on and after May 2, 2000.

14. Petitioner also incurred reasonable costs of

    
    

    $377.00. Of this amount, $62.50 was for the court reporter's attendance at the January 25, 2001, hearing and $314.50 was for transcription of that hearing.

15. Based on the costs described in paragraphs 8, 13, and 14 above, Petitioner incurred total costs of $1,334.90 in connection with the May 2, 2000, and January 25, 2001, proceedings in this case. These costs were necessary in order for Petitioner to successfully defend the underlying action and to bring the matter to a conclusion.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

17. Petitioner is seeking attorney's fees and costs from Respondent pursuant to Subsection 112.317(8), Florida Statutes, and Rule 34-5.0291(1), Florida Administrative Code. According to the foregoing provisions, Respondent is liable for such fees if the Commission on Ethics determines that Respondent filed the Complaint and Amended Complaint with a malicious intent to injure the reputation of Petitioner, a public officer, with knowledge that the complaints contained one or more false allegations or with reckless disregard for whether the complaints contained false allegations of fact

    material to a violation of Part III, Chapter 112, Florida Statutes (Code of Ethics).

18. In the May 2, 2000, administrative hearing in this cause, it was determined that Petitioner met his burden of proof and was entitled to costs and reasonable attorney's fees under the provisions of Subsection 112.317(8), Florida Statutes, and Rule 34-0291(1), Florida Administrative Code. See Sands v. Speas, DOAH Case No. 00-0268, Recommended Order issued September 5, 2000. The Recommended Order determined that Petitioner should be awarded costs and reasonable attorney's fees of $3,050.00. This amount represents only the costs and fees computed through May 1, 2000, the day prior to the May 2, 2000, hearing.

19. In citing the holding in Kaminsky v. Lieberman, 675 So. 2d 261 (Fla. 4th DCA 1996), the Recommended Order

    noted that Petitioner was entitled to an additional hearing to establish the costs and reasonable attorney's fees which were incurred the day of the May 2, 2000, hearing and, thereafter, to bring the matter to conclusion, unless the parties were able to stipulate to such costs and fees.

20. In this proceeding, Petitioner established that on May 2, 2000, and, thereafter, he incurred costs of $1,334.90 and reasonable attorney's fees of $4,463.75 to bring this underlying matter to a conclusion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that:

The Ethics Commission enter a final order finding that Respondent is liable for costs of $1,334.90 and reasonable attorney's fees of $4,463.75, which were incurred by Petitioner on the day of the May 2, 2000, administrative hearing, and thereafter, to bring the matter to a conclusion.

DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida.

___________________________________ CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2000.

COPIES FURNISHED:

Bonnie J. Williams, Executive Director Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Kerrie Stillman, Agency Clerk Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Allen C.D. Scott, II, Esquire Scott & Scott

101 Orange Street

St. Augustine, Florida 32084

Peter Ticktin, Esquire

Scholl, Ticktin and Associates Net First Plaza

5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080

Philip C. Claypool, General Counsel Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-000268FE

Orders for Case No: 00-000268FE