STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN J. SEFSICK, )

)

Petitioner, )

vs. ) CASE NO. 90-2053F

)

FLORIDA DEPARTMENT OF )

CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on July 25, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Michael A. Linsky, Esquire

600 North Florida Avenue Suite 1610

Tampa, Florida 33602

For Respondent: Lynne T. Winston, Esquire

Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUES

The sole issue for determination herein is a reasonable attorney's fee to award to Petitioner.

PRELIMINARY STATEMENT

In its Order Finding an Unlawful Employment Practice and Awarding Affirmative Relief, the Florida Commission on Human Relations (FCHR) directed Respondent to pay Petitioner reasonable attorney's fees in bringing Petitioner's successful action against Respondent for retaliation in DOAH Case Nos. 87-5347 and 88-0663. The parties were unable to agree on the amount of reasonable attorney's fees, and by Petition for Determination of Amount of Attorney's Fees dated April 2, 1990, the FCHR requested this Division to conduct all necessary proceedings and submit a recommended order to the commission.

At this hearing, Petitioner called four witnesses, Respondent called two witnesses, and one exhibit was admitted into evidence.

Proposed recommended orders have been submitted by the parties. Treatment accorded proposed findings not accepted is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioner was represented by in this case by Michael Linsky, Esquire, beginning in April 1988. Two complaints of discrimination had been brought against the Department of Corrections by Petitioner.

   
   

2. Linsky is an experienced trial lawyer having been admitted to the Florida Bar in 1970. However, he had no experience with discrimination cases prior to these proceedings.

   
   

3. The Florida Commission on Human Relations found the Department had committed an unlawful employment practice when it assigned Petitioner to perimeter post duty and transferred him to Polk Correctional Institution in retaliation for having filed a discrimination complaint.

   
   

4. Linsky originally took Petitioner's case on a contingency fee basis, but later it was decided between Linsky and Petitioner that the fee would be whatever was awarded by the Commission. Petitioner was only to be responsible for costs.

   
   

5. Linsky submitted into evidence as Exhibit 1 a list of dates and hours expended on this case. However, this exhibit was prepared by Linsky's secretary some months after the events depicted and appear grossly exaggerated in some instances. Linsky claims a total of 159.35 hours expended.

   
   

6. Linsky testified that his billing rate from April 1988 to December 1988 was $175 per hour, and thereafter it was raised to $190 per hour.

   
   

7. Petitioner's expert witnesses contend the average billing rate in the Tampa area for this type of case ranges from $125 to $175 per hour.

   Respondent's expert witnesses contend the fees awarded run from $100 to $150 per hour. I find the appropriate fee in this case to be $135 per hour.

   
   

8. Although Linsky claims to have spent 159.35 hour on this case, including the attorney's fees portion, 1 find that only 100 hours are reasonable.

   
   

9. Costs of $423.60 is not disputed.

   
   

   CONCLUSIONS OF LAW

   
   

10. The methodology to be followed in determining the amount of reasonable attorney's fees to be awarded to a prevailing party is set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). There, the Supreme Court decided to "adopt the federal lodestar approach for computing reasonable attorney's fees", and on pages 1150-1151 set forth the following methodology:

    
    

    The first step in the lodestar process requires the court to determine the number of hours reasonably expended on the litigation. Florida courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, par- ticularly when someone other than the

    client may pay the fee To

    accurately assess the labor involved, the attorney for applicant should pre- sent records detailing the amount of work performed. Counsel is expected, of course, to claim only those hours that he could properly bill his client. Inadequate documentation may result in a reduction in the number of hours claimed as well as a claim for hours that the court finds to be excessive

    or unnecessary. The "novelty and difficulty of the question involved" should normally be reflected by the amount of hours reasonably expended on the litigation.

    The second half of the equation, which encompasses many aspects of the repre- sentation, requires the court to determine a reasonable hourly rate

    for the services of the prevailing party's attorney. In establishing this hourly rate, the court should assume the fee will be paid irrespec- tive of the result, and take into account all of the Disciplinary

    Rule 2-106 factors except the "time and labor required", the "novelty and difficulty of the question involved", the "results obtained", and "[w]hether the fee is fixed or

    contingent". The party who seeks the fees carries the burden of establish- ing the prevailing "market rate", i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation for similar services.

    The number of hours reasonably expended, determined in the first step, multiplied by a reasonable hourly rate, determined in the second step, produces the lodestar, which is an objective basis for the award of attorney fees. Once the court arrives at the lodestar figure, it may add or subtract

    from the fee based upon a "contin- gency risk" factor and the "results obtained"

    In Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 836 (Fla. 1990), the court modified its decision with respect to the contingency risk factor and held that this was only one factor to be considered and not a significant factor in the category of cases involving public policy enforcement which generally include discrimination, environmental and consumer protection issues. In these cases, the following 12 factors should be considered to determine a reasonable attorney fee:

    
    

    1. The time and labor required;

    2. The novelty and difficulty of the questions;

    3. The skill requisite to perform the legal service properly;

    4. The preclusion of other employment

       by the attorney due to the acceptance of this case;

    5. The customary fee;

    6. Whether fee is fixed or contingent;

    7. Time limitations imposed by the client or the circumstances;

    8. The amount involved and the results obtained;

    9. The experience, reputation and ability of the attorney;

    10. The "undesirability" of the case;

    11. The nature and length of the pro- fessional relationship with the client; and

    12. Awards in similar cases.

The number of hours reasonably expended on the litigation. Sefsick's attorney has submitted a list of dates showing hours worked on the presentation of Sefsick's case by him (Linsky) and an associate, Valorie Jacobs. This list was prepared several months after the events depicted thereon by Linsky's secretary from office records.

1. In this connection, it is helpful to review the history of the proceeding and compare this with the hours claimed. Linsky agreed to represent Sefsick in the discrimination cases in April 1988, although he did not enter an appearance until July 7, 1988 at the hearing. Conference with the client (Sefsick) prior to hearing comprises some 11.5 hours with 5.5 hours occurring June 21, 1988.

   
   

2. The hearing commenced the afternoon of July 7 and continued through July 8. During this period, Linsky presented Sefsick's case in chief. On July 7, Linsky claims 10 hours preparation for hearing, 4 hours in hearing and 2 hours reviewing a statement of Sandy Rosette, a total of 16 hours. The following day, July 8, Linsky claims law research 1.5 hours and 10 hours at hearing. On July 8, 1988, the hearing recessed and reconvened November 16, 1988.

   
   

3. At the November 16 hearing, the Department of Corrections put on their defense, and some evidence to establish damages was presented on behalf of Sefsick. This phase of the hearing lasted 3 hours; yet, Linsky claims 12 hours preparation time on November 14, 12 hours preparation time on November 15, 5 hours preparation time on November 16, with a 3 hour appearance at hearing on November 16. These figures are not credible.

4. Following the hearing and in preparing a proposed recommended order, Linsky claims 9 hours on December 7, 4 hours on December 8, 4.5 hours on December 9, 4 hours on December 10, and 6 hours on December 11 reviewing the proposed order. This is 27.5 hours, an unreasonably long time for an experienced attorney to prepare such a document. In his testimony, Linsky attributed the long preparation time to rewriting the proposed order 6 to 8 times, an unreasonable expenditure of effort in preparing drafts.

   
   

5. Although Linsky claims 159.35 hours expended on this case, a more reasonable period of time would not exceed 100 hours, assuming other hours are inflated as the two above noted. Petitioner's witnesses averred the hours claimed were reasonable while Respondent's witnesses testified the hours claimed appeared clearly excessive.

   
   

6. The reasonable hourly rate for the services of Sefsick's attorney.

   
   

   Linsky testified that his hourly fee in 1988 was $175 per hour, and in 1989 he increased it to $190 per hour. Linsky is an experienced attorney, having been admitted to the Florida Bar in 1970; however, he has had little, if any, experience in discrimination cases prior to the instant proceedings. The average hourly rate for attorneys in the Tampa area in discrimination cases ranges from $100 to $150 per hour, although Petitioner's witnesses testified that in some discrimination cases in federal court they had heard of fees of more than $175 per hour. However, from the evidence submitted, an hourly fee of

   $135 appears appropriate in this case. This hourly rate includes some diminution resulting from the 10-12 hours credited to Linsky's associate, Valorie Jacobs.

   
   

7. Calculation of the lodestar amount.

   
   

   The calculation of the lodestar amount under the Rowe methodology is a simple arithmetic task; the multiplication of the reasonable numbers of hours times the reasonable hourly rate. This is 100 x $135 or $13,500.

   
   

8. Enhancement or contingency risk factors.

Initially Linsky agreed to represent Sefsick in these proceedings on a contingency fee basis which would be a percentage of the recovery, but as the case proceeded it became clear that, if successful, Sefsick would be entitled to attorney's fees; and the agreement was changed to the fee being contingent on the success of Sefsick in these proceedings and to be that which is awarded in these proceedings.

In discussing contingency risk factors, Rowe, at p. 1151 states:

When the prevailing party's counsel is employed on a contingent fee basis, the trial court must consider a con- tingency risk factor when awarding a

statutorily-directed reasonable attorney fee.

* * *

Based on our review of the decisions of other jurisdictions and commentaries on the subject, we conclude that in con- tingent fee cases the lodestar figure

calculated by the court is entitled to enhancement by an appropriate risk multiplier in the range of 1.5 to 3.

When the trial court determines that success was more likely than not at the outset, the multiplier should be 1.5; when the likelihood of success was approximately even at the outset, the multiplier should be 2; and when success was unlikely at the time the case was initiated, the multiplier should be in the range of 2.5 and 3. (emphasis added).

Quanstrom, supra, substantially modified this language to provide that the language in Rowe that the trial court "must consider" a contingency risk factor does not mean the trial court "must apply" a contingency risk factor, but only that the trial court "must consider whether or not to apply" the contingency risk multiplier.

In Quanstrom, the Florida Supreme Court recognized the limitation of risk enhancement announced by the U.S. Supreme Court in Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 107 S.Ct. 3078 (1987), the plurality opinion of which held:

We conclude that multipliers or other enhancement of a reasonable lodestar fee to compensate for assuming the risk of loss is impermissible under the usual fee shifting statutes.

In modifying Rowe, the Quanstrom decision reduced the multiplier from 1.5 to 3 to 1 to 2.5 and established guidelines for using the multiplier in three categories of cases in which fees are statutorily authorized. Having considered the reasoning behind the Quanstrom and Delaware Valley decisions, it is concluded that a multiplier of 1 is appropriate in this case.

19. From the foregoing, it is concluded that 100 billable hours is appropriate in these proceedings at a rate of $135 per hour.

RECOMMENDATION

It is recommended that the Department of Corrections be directed to pay Sefsick's attorney $13,500 attorney's fees and

$423.60 costs in these proceedings.

DONE AND ENTERED this 28th day of September, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1990.

APPENDIX

Petitioner's proposed findings are accepted, except:

3. This proposed finding is accepted as a recital of

the testimony presented, but rejected insofar as inconsistent with H.O. #8.

5. Rejected insofar as inconsistent with H.O. #7.

6 and 7. Accepted as legal argument, but rejected as a finding of fact.

Respondent's proposed findings are accepted.

COPIES FURNISHED:

Michael A. Linsky, Esquire 600 North Florida Avenue Suite 1610

Tampa, FL 33602

Lynne T. Winston, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500

Louis A. Vargas General Counsel

Department of Corrections 1313 Winewood Boulevard

Tallahassee, FL 32399-2500

Richard L. Dugger Secretary

Department of Corrections 1313 Winewood Boulevard

Tallahassee, FL 32399-2500

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN J. SEFSICK )

)

Petitioner, )

) EEOC Case Nos. 02586117

vs. ) FCHR Case Nos. 86-0424 &

) 86-1287

FLORIDA DEPARTMENT OF, ) DOAH Case No. 90-2053F CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER AWARDING ATTORNEY'S FEES

Preliminary Matters

Petitioner Stephen J. Sefsick filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Fla. Stat. (1989). Petitioner alleged Respondent Florida Department of Corrections unlawfully discriminated against him on the bases of race (white) and retaliation.

On July 20, 1989, the Commission entered an Order finding that Petitioner had been discriminated against by the Respondent within the meaning of the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1989). In so holding, the Commission found that Petitioner was entitled to reasonable attorney's fees. After the Parties were unable to resolve this issue, the cause was transmitted to the Division of Administrative Hearings (DOAH) for the conduct of formal proceedings on the amount of attorney's fees due Petitioner.

Fla. Admin. Code Rule 22T-8.016(1). On September 28, 1990, DOAH Hearing Officer

K. N. Ayers, entered a Recommended Order setting forth the amount of attorney's fees to which Petitioner is entitled.

Public deliberations were held on April 12, 1990, in Tallahassee, Florida before this panel of commissioners.

Findings of Fact

We have considered the hearing officer's Findings of Fact. We adopt the hearing officer's findings.

Conclusions of Law

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions.

Remedy

The Respondent is hereby ordered to pay Petitioner's Attorney $13,500 in attorney's fees and $423.60 in costs in these proceedings.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 10th day of May 1991. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Robert R. Joyce, Panel Chairperson;

Commissioner Whitfield Jenkins; and Commissioner Marc C. Little.

FILED this 10th day of May 1991 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

COPIES FURNISHED:

Michael A. Linsky, Attorney for Petitioner Lynne T. Winston, Attorney for Respondent

K. N. Ayers, DOAH Hearing Officer

Danica W. Parker, Legal Advisor for Commission Panel

Docket for Case No: 90-002053F

Orders for Case No: 90-002053F