STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREG BROWN,

Petitioner,

vs.

HILTON KELLY,

Respondent.

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) Case No. 04-2867FE

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AMENDED RECOMMENDED ORDER

This case was originally assigned to Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings. Upon remand by the Florida Commission on Ethics, it was reassigned to Administrative Law Judge Lisa Shearer Nelson in light of Judge Dean's retirement. In lieu of a live hearing, the parties agreed to submit the case on the official record, by pre-hearing stipulation, and deposition testimony.

APPEARANCES

For Petitioner: Albert T. Gimbel, Esquire

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

215 South Monroe Street, Suite 701 Tallahassee, Florida 32301

For Respondent: Joseph Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The question presented in this case is whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.

PRELIMINARY STATEMENT

Respondent, Hilton Kelly (Kelly), is a resident of Washington County, Florida. On April 12, 2004, Kelly signed a sworn ethics complaint to be filed with the Florida Commission on Ethics (Commission). The complaint alleged that Petitioner, Greg Brown (Brown), acting in his capacity as the Santa Rosa County Property Appraiser, improperly assessed Santa Rosa County resident Donald Moore’s real property at a reduced value in exchange for a campaign contribution.

The Commission undertook a full investigation of the Complaint and its allegations. On June 7, 2004, the Commission issued a final Report of Investigation, concluding that Kelly’s allegations against Brown lacked merit. On June 11, 2004, the Commission’s Advocate recommended that there was no probable cause to believe Brown violated Florida law as alleged in the Complaint. Accordingly, on July 27, 2004, the Commission dismissed Kelly’s ethics Complaint.

On August 11, 2004, Brown filed a Petition for Costs and Attorneys’ Fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291, alleging that Kelly filed the ethics Complaint with malicious intent to injure Brown’s reputation, by filing the Complaint with knowledge that the Complaint contained one or more false allegations, or with reckless disregard for whether the Complaint contained one or more false allegations.

In lieu of a formal administrative hearing, the parties agreed to submit this case on the official record, including motions, responses to motions and exhibits thereto, through documents and answers exchanged in discovery, by pre-hearing stipulation, and deposition testimony and exhibits. See Appendix A to this Order. The Pre-Hearing Stipulation was filed on October 21, 2005. The parties timely filed Proposed Recommended Orders on November 1, 2005.

On January 31, 2006, Judge Dean issued a Recommended Order recommending that Petitioner be awarded attorney's fees and costs pursuant to Section 112.317(8), Florida Statutes.

Exceptions to the Recommended Order were filed by both parties. On June 15, 2006, the Division received an Order of Remand from the Florida Commission on Ethics, requesting that the administrative law judge conform the conclusions of law in the Recommended Order to the standard enunciated by Administrative

Law Judge Parrish in Addicott v. Nieman, DOAH No. 04-0043FE/ COE Final Order No. 05-207 (2005); reconsider the evidence of record in light of the revised conclusions of law, to the extent necessary; and enter an Amended Recommended Order.

Upon remand, the case was assigned to the undersigned and The parties were afforded until July 9, 2006, the opportunity to submit further argument. The entire record originally considered by Judge Dean has been considered on remand.

Respondent timely submitted a Final Memorandum. On

July 11, 2006, Petitioner filed an Unopposed Motion for Leave to File Additional Argument, asserting that he had inadvertently miss-calendared the date for filing a response. Florida Administrative Code Rule 28-106.204(5) requires that motions for extension of time shall be filed prior to the expiration of the deadline sought to be extended and shall state good cause.

Nonetheless, inasmuch as Petitioner's Motion is unopposed, both Petitioner's and Respondent's submissions have been considered.

FINDINGS OF FACT

1. Mr. Hilton Kelly is a resident of Washington County, Florida, and the brother of Ms. Miller McCombs (McCombs).

2. McCombs, a licensed real estate agent in Santa Rosa County since 1974 and broker since 1975, has used the records of the property appraiser for many years in her profession. In 2004, McCombs was an active participant and supporter of

   Leon Cooper, the opposition candidate to incumbent Property Appraiser of Santa Rosa County, Greg Brown.

3. Brown had been the Property Appraiser since January 2, 2001, and in 2004 was running for re-election for the first time.

4. Leon Cooper, whom McCombs supported, was formerly an employee of the Santa Rosa County Property Appraiser's Office, having been employed by Robert Burgess, the Property Appraiser until December 31, 2000. He was hired by former Property Appraiser Robert Burgess, and continued to work in that office for approximately eighteen months after Greg Brown assumed office. Prior to the events giving rise to this action, Leon Cooper left the employ of the Santa Rosa County Property Appraisers office to work for the Florida Department of Revenue.

5. On April 12, 2004, Kelly filed an ethics complaint which alleged Brown assessed the property of Donald Moore located in Santa Rosa County at a reduced rate in exchange for a campaign contribution. Kelly also alleged that Moore was a friend of Brown's, and Brown instructed appraisers to stay away from Moore's property.

6. Kelly filed the ethics complaint at the request of his sister, who feared some sort of retaliation should she file the complaint herself. McCombs was motivated by what she perceived to be poor service by the property appraiser's office. Kelly

   agreed to file the complaint because his sister asked him to and he trusted her. She showed him documentation that made sense to Kelly and he agreed that it should be brought to someone's attention. Attached to the complaint were records from the Santa Rosa Property Appraiser's office that showed the amount of the assessments for the Moore property for the years 2000-2003; pictures of the structures on the Moore property; records from the Santa Rosa County Tax Collector's Office; and records related to campaign contributions given in support of Greg Brown indicating Moore or companies with which he was associated contributed at least $1,500.00 to Greg Brown's election campaign.

7. On the same day, Robert Burgess, the former property appraiser, filed a separate ethics complaint against Brown alleging that Brown had reinstated the tax exemption of a church owned by Ms. Lovie Grimes and deleted the tax assessments against the church for the tax years 2000 through 2003 in support for the political support of Ms. Grimes in his 2004 re- election bid.

8. Mr. Kelly did not know Mr. Burgess and did not talk with him before filing the ethics complaint related to the Moore property. He signed the complaint and had it notarized after receiving the materials from his sister.1/

9. The Commission investigated the allegations made by Kelly and Burgess and ultimately determined that both complaints lacked merit.

10. Kelly was interviewed telephonically by investigators for the Florida Commission on Ethics. When contacted he stated, "I don't have a dog in this hunt." He referred the investigator to Robert Burgess, stating that his sister had informed him that Mr. Burgess "knows all of the details about this complaint."

11. The investigation by the Ethics Commission staff regarding the evaluation of the Moore property revealed that it had burned completely on December 31, 2000, just as it was nearing completion. The reconstruction efforts were monitored by personnel of the appraiser's office, and it was duly added to the rolls on January 1 of the year following its completion, January 1, 2003.

12. The record also shows that the home that burned down was constructed without being properly permitted, and that while the house burned down, there remained other, undamaged buildings on the property.

13. One appraiser, as opposed to all of the appraisers in the office, was instructed not to inspect Mr. Moore's property due to an apparent "personality conflict" between Mr. Moore and this particular appraiser. Several of the field appraisers were aware of this directive, and other field appraisers continued to

    inspect the property. It was a common practice to honor such requests made by homeowners and was not limited to Mr. Moore's property.

14. Kelly made no independent effort to verify any of the facts in his ethics Complaint. Kelly made no independent effort to verify any of the documents provided by his sister. The documents attached to the ethics complaint were copies of records contained in the Property Appraiser's office, and there was no reason to doubt their authenticity. However, these records did not provide all of the relevant information with regard to the appraisal of the Moore property.

15. While it is clear that Kelly made no effort to verify anything in the complaint he filed, it is unclear whether he would have been able to obtain any documentation related to the fire from the Property Appraiser's office. Indeed, Greg Moore testified that if a citizen went in to get the records on Moore's property, they would get what was attached to Kelly's complaint. Further, no evidence was presented to indicate that Kelly entertained any doubt as to the as to the truth of the allegations contained in the complaint.

    CONCLUSIONS OF LAW

    
    

16. The Division has jurisdiction over the parties and the subject matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).

17. Section 112.317(8), Florida Statutes, provides:

    
    

    In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the compliant contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of the costs and fees.

    
    

18. The Ethics Commission has determined that awards for fees are governed by the "actual malice" standard enunciated in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964) and its progeny. See In re Michael Addicott, DOAH Case No. 04- 0043FE (COE Final Order April 26, 2005). Unless the agency's construction of a statute leads to an unreasonable or erroneous result, an agency's interpretation of a statute it is charged with enforcing is entitled to great deference. Level 3 Communications, LLC v. Jacobs, 841 So. 2d 447 (Fla. 2003); Osorio v. Board of Professional Surveyors and Mappers, 898

    So. 2d 188 (Fla. 5th DCA 2005).

19. Accordingly, the Sullivan standard controls the outcome of this petition for fees and costs pursuant to Section 112.317(8), Florida Statutes. Petitioner must demonstrate that the Respondent filed the complaint against him with a malicious intent to injure his reputation, with the knowledge that the complaint contained one or more false allegations or with reckless disregard for whether it contained false allegations of facts material to a violation of the Code of Ethics. In order to show that Respondent acted with reckless disregard as to the truth or falsity of statements made, Petitioner must present evidence "sufficient to permit the conclusion that the [Respondent] in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731,

    88 S. Ct. 1323, 1325 (1968). If this standard is met, then Petitioner must establish the amount of costs and attorney's fees based on the criteria set forth in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The burden of proof is one of clear and convincing evidence. New

    York Times v. Sullivan, 376 U.S. at 285-86, 84 S. Ct. at 729.

    
    

20. The Petition for Costs and Attorney's Fees asserts the following statements in support of its claim that Hilton Kelly made false statements in his ethics complaint and acted with malicious intent:

    1. Included in the complaint were documents from the Santa Rosa County Property Appraiser's Office that appeared to support the allegations. Omitted from the complaint were documents from the Santa Rosa County Property Appraiser's Office that showed that Mr. Moore's dwelling was destroyed by fire on December 30, 2000 and that reconstruction of the dwelling was be monitored by employees of the Santa Rosa County Property Appraiser's Office. The failure to include such records from the Santa Rosa County Property Appraiser's Office that showed that Mr. Moore's dwelling was destroyed by fire on December 30, 2000 and that its construction was being monitored by employees of the Santa County Property Appraiser's Office evidences a malicious intent to injure the reputation of Greg Brown.

       
       

    2. The complaint also stated that Mr. Moore gave Mr. Brown $1,500.00 for his 2000 election campaign. It further alleged, "This was a campaign contribution for a lower assessment." This allegation was false when made and was either known to be false or was made by Hilton Kelly with reckless disregard for the truth and falsity of such statement.

       
       

21. The evidence presented does not support these assertions. Paragraph four assumes that Respondent either knew about the fire and intentionally omitted any documents that reference the fire, or was negligent in failing to discover and include documents relating to the fire with his complaint. There is no evidence that Hilton Kelly, McCombs or Burgess knew that the Moore property was destroyed by fire at the time the ethics complaint as filed.

22. Similarly, as found at paragraph fifteen, Petitioner testified that should a member of the public ask for the Property Appraiser's records regarding the Moore property, they would receive the same documents that were attached to Hilton Kelly's complaint. He could not identify anything in those records that would have alerted a member of the public that

    Mr. Moore's home on the subject property was destroyed by fire. While Petitioner asserts that Mr. Kelly had an obligation to personally verify the information in his complaint, such a burden is consistent with a "reasonable man," or negligence standard, which the Supreme Court in New York Times expressly rejected. As stated by the Supreme Court in St. Amant, "reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." 390 U.S. at 731, 88 S. Ct. at 1325.

23. Here, there is simply no evidence presented that Hilton Kelly ever doubted the truth of the statements made in his complaint to the Commission on Ethics. He testified that he relied upon his sister because he trusted her. He reviewed

    documents that appeared to support the allegations being made. There simply is no clear and convincing evidence to support a finding that he ever entertained any doubt as to the accuracy of the information provided to him and included in his complaint.

24. Finally, the allegation listed in paragraph four of the Petition for Attorney's Fees and Costs was listed as a "conclusion" in Mr. Kelly's complaint to the Commission. Statements must be read and analyzed in the context of the entire publication. Dockery v. Florida Democratic Party, 799 So. 2d 291, 296 (Fla. 2d DCA 2001). Read in context, the statement complained of was an opinion based upon the facts set forth in the complaint and supported by the documents attached to Kelly's complaint, and as such is protected by the First Amendment. Zorc v. Jordan, 765 So. 2d 768, 772 (Fla. 4th DCA 2000). Even assuming that the statement is one of fact as opposed to opinion, there is no evidence that Mr. Kelly ever doubted that the conclusion he reached was true. Accordingly, Petitioner has failed to demonstrate that Respondent acted with reckless disregard as that standard is understood under New York Times v. Sullivan and St. Amant v. Thompson.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Commission enter a final order denying Petitioner's Petition for Fees and Costs.

DONE AND ENTERED this 14th day of July, 2006, in

Tallahassee, Leon County, Florida.

S

Lisa Shearer Nelson 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 14th day of July, 2006.

ENDNOTE

1/ Petitioner places great significance on the fact that the two ethics complaints were not only filed on the same day, but on the same day that Leon Cooper filed his qualifying papers to run against Greg Brown as Santa Rosa County Property Appraiser. The timing of the complaints has little significance for two reasons. First, there is no evidence that Burgess and Kelly ever spoke to each other, much less coordinated the timing of their complaints. Second, at the time the complaints were filed, Section 112.324, Florida Statutes, mandated that they were confidential. There is no evidence that Hilton Kelly ever spoke to anyone other than perhaps his sister and the Ethics Commission investigator about the complaint once it was filed until the matter became public.

COPIES FURNISHED:

Albert T. Gimbel, Esquire Mark Herron, Esquire

Messer, Caparello & Self, P.A.

215 South Monroe Street, Suite 701 Tallahassee, Florida 32301

Joseph Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Kaye Starling, Agency Clerk Commission of Ethics

3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Philip C. Claypool, General Counsel Commission of Ethics

3600 Macclay Boulevard, South, Suite 201 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.

APPENDIX A (EXHIBITS)

By Pre-Hearing Stipulation, the parties agreed that the following exhibits were admitted into evidence:

1. Ethics Complaint 04-084, sworn to by Hilton Kelly on April 12, 2004, against Greg Brown, and received by the Florida Commission on Ethics on April 14, 2004.

   
   

2. Report of Investigation, prepared by A. Keith Powell, Investigator, issued on June 7, 2004 by the Florida Commission on Ethics.

   
   

3. Advocate’s Recommendation, dated June 11, 2004 prepared by James H. Peterson, III, Advocate for the Florida Commission on Ethics.

   
   

4. Public Report, dated July 27, 2004 dismissing the complaint as rendered by the Florida Commission on Ethics.

   
   

5. Deposition Transcript of Donald W. Moore dated April 22, 2005.

   
   

6. Deposition Transcript of Lorenzo Law Drinkard dated April 27, 2005, with Exhibits 1-3.

   
   

7. Deposition Transcript of Hilton Kelly dated April 28, 2005, with Exhibits 4-6.

   
   

8. Deposition Transcript of Robert Burgess dated April 28, 2005, with Exhibits 7-12.

   
   

9. Deposition Transcript of Gregory Stephen Brown dated April 29, 2005, with Exhibits 13-20.

   
   

10. Deposition Transcript of Miller McCombs dated April 28, 2005.

    
    

11. Deposition Transcript of Leon Cooper dated September 21, 2005.

    
    

12. Deposition Transcript of Keith Hodges dated September 21, 2005.

    
    

13. Deposition Transcript of Chris Haughee dated September 21, 2005.

14. All pleadings, motions, and the responses and exhibits thereto filed by the parties.

    
    

15. All discovery responses to Interrogatories, Requests for Production of Documents, and Request for Admissions filed by the parties.

    
    

16. Documents produced in discovery by the parties, identified as follows:

    
    

    Brown documents numbered [K]-1 through [K]-89.

    
    

    Kelly documents (unnumbered) in response to requests for production of documents Nos. 9, 10, and 12.

    
    

17. DVD of photographs taken of the Donald Moore property.

    
    

18. Affidavit of Attorneys Fees filed by Albert T. Gimbel.

    
    

19. Affidavit of Costs filed by Albert T. Gimbel.

    
    

20. Affidavit of Attorneys Fees filed by Mark Herron.

    
    

21. Affidavit of Costs filed by Mark Herron.

    
    

22. Affidavit of Reasonable Attorneys Fees and Costs filed by Michael E. Dutko.

    
    

23. Deposition Transcript of Michael E. Dutko dated October 13, 2005.

    
    

24. Affidavits, depositions, records, and other documents to be submitted additional to those already of record, in support of or in opposition to the attorney’s fees claimed.

Citations to the deposition transcripts shall be designated by the name of the deponent, followed by the page and line of the transcript. For example, a citation to page 5, line 20 of Greg Brown’s deposition transcript will appear as “Brown depo.

5:20.”

Docket for Case No: 04-002867FE

Orders for Case No: 04-002867FE