STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STEVEN B. FEREN, )
)
Petitioner, )
)
vs. ) CASE NO. 92-2458EC
) COMPLAINT NO. 91-45
BILL COLON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 16, 1992, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Stuart R. Michelson, Esquire
1111 Kane Concourse, Suite 517
Bay Harbor Islands, Florida 33154 For Respondent: Bill Colon, pro se
STATEMENT OF THE ISSUES
Whether Bill Colon, the Respondent, should be required to pay attorney's fees and costs to Steven B. Feren, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?
PRELIMINARY STATEMENT
On or about March 26, 1991, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint was filed by the Respondent, Bill Colon, and contained allegations of misconduct by Steven B. Feren, the Petitioner in this case. On or about June 25, 1991, Mr. Colon filed an amended complaint.
On October 1, 1991, a Determination of Investigative Jurisdiction and Order to Investigate was entered. Pursuant to the order, the Commission began an investigation of the allegations against Mr. Feren raised in Mr. Colon's complaint.
On January 16, 1992, a Report of Investigation was issued. Based upon the report, an Advocate for the Commission entered an Advocate's Recommendation on January 31, 1992. The Advocate recommended dismissal of the complaint against Mr. Feren.
On March 11, 1992, the Commission entered a Public Report dismissing the complaint against Mr. Feren.
On or about April 2, 1992, Mr. Feren filed a pleading titled "Respondent's Petition for Attorney's Fees and Costs" with the Commission. On or about April 20, 1992, Mr. Colon filed a document titled "Rebuttal to Respondents [sic] Petition to Assess Costs and Fees Against Complainant."
By letter dated April 20, 1992, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rule 34-5.029, Florida Administrative Code, requested that a hearing be conducted by the Division of Administrative Hearings.
On April 23, 1992, a Notice of Assignment and Order was entered. Pursuant to this order the parties were informed that the undersigned had been assigned this case. The parties were also given an opportunity to provide input concerning when and where the final hearing of this case should be held.
On May 12, 1992, a Notice of Hearing was entered scheduling the final hearing for July 16, 1992.
On May 18, 1992, a Motion to Dismiss was filed by Mr. Colon. At the request of the undersigned, a telephone motion hearing was conducted on May 19, 1992. During the hearing, the parties were informed of the Recommended Order entered by the undersigned in Chapin v. Couch, Division of Administrative Hearings' Case No. 91-7002EC, on May 11, 1992. A copy of the Chapin Recommended Order was provided to both parties.
On May 29, 1992, an Order Granting Motion to Dismiss with Leave to File Amended Petition was entered. Pursuant to the May 29, 1992, Order the final hearing scheduled for July 16, 1992, was cancelled, the case was dismissed and Mr. Feren was given until June 15, 1992, to file an amended petition.
Relying upon the Recommended Order in Chapin, it was concluded in the May 29, 1992, Order dismissing this case that Mr. Feren's petition should be dismissed because he had failed to allege that he had "incurred" any fees or costs. It was noted in the May 29, 1992, Order that Mr. Feren had not alleged that he had in fact incurred fees and costs. Allegations indicating that fees had been incurred by Mr. Feren, however, were contained in a pleading filed in response to the motion to dismiss. Therefore, Mr. Feren was given an opportunity to file an amended petition. The parties were also informed that, if the allegations contained in Mr. Feren's response to the motion to dismiss were included in an amended petition, a formal hearing appeared to be necessary.
On June 4, 1992, Mr. Feren filed an Amended Petition. In the amended petition, Mr. Feren alleged that he had incurred attorney fees and costs as a result of Mr. Colon's complaint against him. Motions to dismiss the amended petition were subsequently denied.
By Order entered June 23, 1992, this case was placed in abeyance pending the entry of a Final Order by the Commission in Chapin. On July 22, 1992, the Commission entered a Final Order in the Chapin case. The Commission rejected the undersigned's conclusion in the Chapin Recommended Order that the person seeking fees and costs was required to prove that he or she had "incurred" such fees and costs.
On July 27, 1992, an Order Cancelling Abeyance of Case and Giving Parties Opportunity for Input was entered. The parties were provided a copy of the
Chapin Final Order, and were given until August 10, 1992, to provide input as to when and where the final hearing of this case should be held.
On August 13, 1992, a Second Notice of Hearing was entered scheduling the final hearing for October 26, 1992. On August 24, 1992, Mr. Colon filed a motion for continuance. On August 25, 1992, an Order Granting Motion for Continuance was entered. The final hearing was rescheduled, without objection from Mr. Feren, for November 16, 1992.
On August 24, 1992, Mr. Colon again filed a motion to dismiss. The motion was denied by Order entered September 2, 1992.
At the commencement of the final hearing, Mr. Colon objected to the fact that Mr. Feren did not intend to attend the final hearing. Mr. Feren, a newly elected member of the Florida House of Representatives, was in Tallahassee, Florida, attending orientation meetings for new House members. Mr. Colon's objection was overruled. Mr. Colon was given the opportunity, however, to take the deposition of Mr. Feren subsequent to the conclusion of the final hearing and to file the deposition late. Mr. Colon chose not to take Mr. Feren's deposition.
During the final hearing Mr. Feren presented the testimony of Samuel Goren and Mr. Colon. Mr. Goren was accepted as an expert on the issue of reasonable attorney fees. Mr. Feren also offered his deposition testimony and the deposition testimony of Mr. Colon and Peter Ostreich. Mr. Feren also offered ten exhibits, including the three depositions. All of Mr. Feren's exhibits were accepted into evidence.
Mr. Colon testified on his own behalf. Mr. Colon offered eighteen exhibits. A ruling on the relevancy of Respondent's exhibits 4, 5 and 8 was reserved. Respondent's exhibit 13 was rejected. The remaining exhibits were accepted into evidence.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
The Parties.
Steven B. Feren served as a member of the City Commission of the City of Sunrise, Broward County, Florida, at all times relevant to this proceeding. Mr. Feren served as a Commissioner from approximately March, 1987 until late 1992.
Bill Colon is a citizen of the State of Florida and resides in the City of Sunrise, Florida. Mr. Colon served as a member of the City Commission of the City of Sunrise from approximately 1981 to 1987.
Mr. Colon's Ethics Complaint Against Mr. Feren.
On or about March 26, 1992, Mr. Colon filed a Complaint against Mr. Feren (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. The Complaint contained the following allegations:
Feren is a City Councilman and now as a City Commissioner is a practicing attorney whose firms [sic] has for a continuous period of time performed legal services, particularly title closings for Universal Title Insurors which is a subsidiary of the Lennar Corporation. This has been a continuous conflict of interest as the Lennar Corporation is a corporation that continually conducts business before the City
Commission. It presents plats, zoning changes and other matters relating to their business as a real estate developer in Sunrise. Feren has never filed a conflict of interest form nor has he ever announced at a public hearing that a potential conflict of interest arose because of his vote on any matter involving Lennar Corporation.
. . . .
Petitioner's Exhibit 1.
A letter dated June 10, 1992, (Petitioner's exhibit 4) was sent to Mr. Colon from Peter Ostreich, a staff attorney for the Commission. In the June 10, 1992, letter, Mr. Colon was asked to provide more specific information concerning the allegations of his Complaint:
. . . . Section 3 of the complaint form requires the Complainant to provide a detailed description of the facts and the actions of the person named in the complaint, any relevant dates, and the names and addresses of witnesses. The complaint you filed with this office does not contain this required information.
In order to undertake a review of the complaint for legal sufficiency, I must request that you first provide us with detailed factual allegations that support your claims, particularly as to the matters of Mr. Feren's conflict of interest. . . .
Mr. Ostreich goes on in the letter to ask Mr. Colon to answer specific questions concerning Mr. Colon's allegations against Mr. Feren.
In response to Mr. Ostreich's June 10, 1991, letter, Mr. Colon filed another complaint (hereinafter referred to as the "Amended Complaint"), with the Commission. In response to Section 3 of the Amended Complaint Mr. Colon attached a one and one-half page, legal sized, "Statement of Facts." See Petitioner's Exhibit 5.
In the Statement of Facts attached to the Amended Complaint, Mr. Colon lectured the Commission concerning Mr. Colon's perception of the Commission's responsibility in investigating his initial Complaint. Mr. Colon also addressed some of the specific questions Mr. Ostreich had asked.
In the Statement of Facts attached to the Amended Complaint, Mr. Colon mentioned a telephone call that he made to Lennar Corporation concerning whether Lennar Corporation owned Universal Title Insurors.
Although requested to do so by Mr. Ostreich in his letter of June 10, 1991, Mr. Colon did not provide the names of any potential witnesses to Mr. Ostreich.
The Commission's Investigation of the Complaint.
Robert G. Malone was involved in the Commission's investigation of the Complaint. Mr. Malone spoke by telephone with Mr. Colon concerning the Complaint several times.
In the Report of Investigation (Petitioner's Exhibit 2) issued by the Commission on January 16, 1992, at the conclusion of the investigation of the Complaint, the following finding was made:
(4) Mr. Colon stated by telephone that he learned that Mr. Feren's law firm performs real estate closings for Universal Title Insurors from an anonymous letter that was mailed to him in February 1991. Mr. Colon said he has no idea who mailed him the letter, and he could not locate the letter for examination, stating that he must have misfiled it in his personal papers. The Complainant acknowledged that, other then [sic] the anonymous letter, he has no evidence which verifies that [Mr. Feren] has performed any work for Universal Title Insurors.
Mr. Colon was provided a copy of the Report of Investigation and was aware of the findings contained therein. Mr. Colon did not attempt to contact Mr. Malone or the Commission after receiving the Report of Investigation and question the statement that the only evidence to support his allegations was the anonymous letter.
The Commission's Disposition of the Complaint
and the Amended Complaint; Mr. Feren's Request for Fees.
On March 11, 1992, the Commission entered a public report. Based upon the Report of Investigation and a recommendation from an Advocate for the Commission, the Commission dismissed the Complaint.
On or about April 2, 1992, Mr. Feren filed a pleading titled "Respondent's Petition for Attorney's Fees and Costs" with the Commission.
Information Relied By Mr. Colon to Support His Allegations Against Mr. Feren.
The allegations in the Complaint and the Amended Complaint were based primarily upon an anonymous letter Mr. Colon received in approximately February, 1991 (hereinafter referred to as the "Anonymous Letter"). The Anonymous Letter stated the following:
Councilman Colon
I know you are concerned about what is going on in Sunrise. Please look into Steve Feren's dealings with DCA.
I know that he is doing title closings for them and has kept quiet about them. Check with the City Clerk and the city records you will find that he as never mentioned his working for DCA.
He should not be permitted to get away with it. You are the only one who cares what happens in this city.
A concerned Taxpayer
In filing the Complaint and Amended Complaint, Mr. Colon assumed the following: (a) the reference to "DCA" in the Anonymous Letter was a reference to the Development Corporation of America; (b) Lennar Corporation had purchased Development Corporation of America; (c) Lennar Corporation had appeared before the Sunrise City Commission and, in particular, Mr. Feren; (d) Universal Title Insurors was a subsidiary of Lennar Corporation; (e) Mr. Feren had conducted title closings with Universal Title Insurors; and (f) Mr. Feren had not filed notice of his having worked for Universal Title Insurors or Lennar Corporation. These assumptions are not identified in the Anonymous Letter. The weight of the evidence also failed to prove that any of these assumptions are correct except (a).
Mr. Colon's Effort to Verify the Anonymous Letter and the Mr. Colon's Assumptions.
At some time after receiving the Anonymous Letter Mr. Colon telephoned the Sunrise City Clerk's office and inquired whether Mr. Feren had filed a form indicating he had a working relationship with Lennar Corporation. Mr. Colon was told that no such disclosure form had been filed.
Mr. Colon also telephoned an employee of the City of Sunrise, Joan Vega. Mr. Colon believed that Ms. Vega attended most City Commission meetings. Ms. Vega told Mr. Colon that she had not heard Mr. Feren disclose any conflict of interest concerning Lennar Corporation.
Mr. Colon also telephoned Lennar Corporation's Miami office and asked someone whether Universal Title Insurors was a subsidiary of Lennar Corporation. Mr. Colon was told that Universal Title Insurors was a subsidiary of Lennar Corporation.
Based upon findings of fact 16, 17 and 18, Mr. Colon attempted to determine whether the assumptions he had made as set out in finding of fact 15(d) and (f).
The weight of the evidence failed to prove that Mr. Colon made any effort prior in filing the Complaint or Amended Complaint to verify the assumptions he had made as set out in finding of fact 15(a), (b), (c) or (e). The most significant of the assumptions which Mr. Colon made no effort to verify
was the assumption that Mr. Feren had performed closing for Lennar Corporation or Universal Title Insurors. Mr. Colon's Complaint was frivolous and without basis in law or fact.
F. Other Alleged Efforts to Verify Mr. Colon's Assumptions: The Anonymous Telephone Call.
In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), that he had received an anonymous telephone call from a man who made allegations similar to those contained in the Anonymous Letter.
Mr. Colon, however, failed to disclose this telephone call to the Commission's investigator. He also did not mention the telephone call in response to the questions asked by Mr. Ostreich. Mr. Colon also failed to mention the telephone call during his direct examination during the final hearing in response to a question from counsel for Mr. Feren concerning what Mr. Colon had relied upon in filing the Complaint. Finally, Mr. Colon failed to list the telephone call on Respondent's Exhibit 1, Mr. Colon's list of efforts he purportedly took to verify his charges against Mr. Feren.
Based upon the weight of the evidence, it is concluded that Mr. Colon did not receive an anonymous telephone call concerning the allegations against Mr. Feren prior to the filing of the Complaint. Even if such a telephone call had been received, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter.
H. Other Alleged Efforts to Verify Mr. Colon's Assumptions: Former Mayor Larry Hoffman's Comment.
In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), and during the final hearing of this case that a former Mayor of the City of Sunrise, Larry Hoffman, had told him the following:
To the best of my knowledge and belief, Mayor Hoffman said that, he brought to my attention that it had come to his attention that Steven Feren was doing work for Universal Title Insurors.
Page 10, Lines 9-12, Petitioner's Exhibit 6.
The Report of Investigation, Petitioner's Exhibit 2, does not mention the alleged comment by Mr. Hoffman. Nor is there any indication in the Report of Investigation that any effort was made by the investigator for the Commission to determine if Mr. Hoffman had any knowledge about the incident. In the Report of Investigation, as quoted in finding of fact 10, it is only reported that Mr. Colon "acknowledged that, other then the anonymous letter, he has no evidence which verifies" the charges Mr. Colon made against Mr. Feren.
Mr. Colon also did not inform Mr. Ostreich of Mr. Hoffman or the alleged comment that Mr. Hoffman made in response to Mr. Ostreich's letter to Mr. Colon.
Based upon the weight of the evidence, Mr. Colon's testimony concerning the alleged comment of Mr. Hoffman is rejected.
Even if Mr. Hoffman had made the comment to Mr. Colon, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter. Mr. Colon indicated that he made no effort to discuss Mr. Hoffman's comment with Mr. Hoffman. Mr. Colon testified that Mr. Hoffman simply made the statement and that he did not ask any questions concerning the source of Mr. Hoffman's information.
I. Other Alleged Efforts to Verify Mr. Colon's Assumptions: The Telephone Call to Universal Title Insurors.
In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the final hearing of this case that he had telephoned Universal Title Insurors and inquired whether Mr. Feren was conducting title closings at Universal Title Insurors. Mr. Colon testified that he was told "yes."
Mr. Colon's testimony concerning his alleged telephone call to Universal Title Insurors is rejected. Mr. Colon made no mention of the alleged telephone call to Universal Title Insurors in his deposition of September 8, 1992:
Q. Who did you speak to at Universal or Lennar; do you recall?
A. No, I don't. There was a lady that I know that I used to deal with in claims there, but I don't recall if she was the one who I talked to.
Q. But, you would have talked to somebody at Universal and asked them what, specifically?
A. I didn't say that. I said Lennar Corporation.
Q. Oh, you talked to somebody at Lennar?
A. I asked the question is Universal Title Insurers a subsidiary of Lennar
Corporation, and they said yes, that it was.
Q. Did you speak to somebody that you knew or somebody who was an officer?
A. As I recall, I spoke to somebody; not that I spoke to somebody, I asked for somebody that I knew. It sounds like an Israeli name that I talked to, but I don't recall if that was the person that I talked to, but the only question I had is Universal Insurers a subsidiary of Lennar, and they said yes, that it was . . . .
Page 36, Lines 6-25 and Page 37, Lines 1-8, Petitioner's Exhibit 6.
The alleged telephone call to Universal Title Insurors was not mentioned in the Report of Investigation. Mr. Colon did not mention the alleged telephone call to Mr. Ostreich in response to Mr. Ostreich's June 10, 1991,
letter. It also was not listed on Respondent's Exhibit 1, Mr. Colon's list of the efforts he purportedly made to verify his charges against Mr. Feren.
Mr. Colon brought up the alleged telephone call to Universal Title Insurors for the first time during the final hearing of this case and only after extensive questioning about the other alleged events that he had already testified he had relied upon. His only explanation as to why he had not mentioned the alleged telephone call earlier was that he "probably forgot."
Page 78, Line 24, Transcript of November 16, 1992.
Mr. Colon's Purpose in Filing the Complaint and the Amended Complaint.
Mr. Colon testified that he filed the Complaint against Mr. Feren because he was a concerned citizen who has been involved in the politics of the City of Sunrise for over 20 years and that his main concern was that the people receive an honest and responsible government. Mr. Colon also considers himself the "Watchdog of the City". Mr. Colon's explanation of why he filed the Complaint is not a credible explanation of Mr. Colon's total reason for filing the Complaint.
While Mr. Colon does have some concern about good government in the City of Sunrise, Mr. Colon's judgment in exercising that concern has been distorted by his vindictiveness against, and his malice toward, Mr. Feren. Therefore, it is concluded that Mr. Colon's motivation for filing the Complaint was not limited to any public mindedness on the part of Mr. Colon. Mr. Colon also was motivated by his desire to harm Mr. Feren. This finding of fact is based upon Mr. Colon's dealings with Mr. Feren as evidenced by the testimony of Mr. Colon and Mr. Feren. Mr. Colon filed the Complaint with a malicious intent to injure Mr. Feren's reputation.
The incidents between Mr. Colon and Mr. Feren have been adequately addressed in Mr. Feren's deposition testimony and are summarized in Mr. Feren's proposed finding of fact 32 (to the extent accepted and relevant--see the discussion of proposed finding of fact 32 in the Appendix to this Recommended Order). There is no need to reiterate those disagreements here.
Additionally, Mr. Colon has filed two prior complaints with the Commission against Mr. Colon. All three complaints filed by Mr. Colon against Mr. Feren have now been dismissed. Although filing a complaint in and of itself may not be of much consequence in determining a person's motive, the fact that Mr. Colon has filed other complaints against Mr. Feren, when considered with the other testimony, supports the conclusions reached in this Recommended Order.
Mr. Colon professed in his testimony to be neutral concerning Mr. Feren as an individual. His actions and his testimony in his deposition of September 8, 1992, and during the final hearing of this case indicate otherwise. During Mr. Colon's testimony at the final hearing he made statements such as the following:
. . . . If you're talking to me whether I feel he is a competent legislature [sic], whether he was a competent City Commissioner, that has nothing to do with personality, that has all to do with ability. [Mr. Feren] has no abilities as far as I'm concerned.
Page 90, Lines 20-24, Transcript of November 16, 1992.
And you said, I did not contact Mr. Feren because I wouldn't believe him no matter what he said.
That is correct, sir. I made that statement, yes. If he told me it was raining outside I would look out the
window. Let me go further to say this: Mr. Feren probably holds the only title of a person getting elected to the state house because the citizens of Sunrise didn't want him in the city.
Page 91, Lines 16-23, Transcript of November 16, 1992.
Following a description by Mr. Colon of things that Mr. Feren allegedly did as a City Commissioner which were contrary to the best interest of the citizens of Sunrise, Mr. Colon stated the following:
There are so many things that this man has done that - and I will say this I am the president of the Sunrise Political Club. We have a membership totaling over 300 members and every one of those members voted for Mr. Feren to the state house because that was the only way they could get rid of him and get him out of the city; does that answer your question, sir?
Page 97, Lines 13-19, Transcript of November 16, 1992.
Mr. Colon should have been aware when he filed his Complaint of the potential harm which could be caused to Mr. Feren. Mr. Colon has suggested that no harm should have come to Mr. Feren because proceedings before the Commission confidential prior to a finding of probable cause of wrong doing by the Commission. Mr. Colon's position ignores the possibility that the Complaint could have been disclosed and the potential harm to Mr. Feren's reputation that could have resulted therefrom. Mr. Colon's position also ignores the possibility that probable cause that a violation could have been found, the Complaint would then have been made public and ultimately the Complaint could have been found to be without basis. Finally, Mr. Colon's position ignores the potential harm to Mr. Feren's reputation which may have arisen as a result of the Complaint having been filed even after it was dismissed. Mr. Colon's should have been aware of the potential harm to Mr. Feren's reputation when he filed his Complaint.
Legal Representation of Mr. Feren.
Stuart R. Michelson, Esquire, represented Mr. Feren before the Commission and in this proceeding.
The City of Sunrise authorized the payment of some of the attorney fees owed to Mr. Michelson as a result of his representation of Mr. Feren.
The evidence failed to prove who retained Mr. Michelson, or what type of agreement was entered into for Mr. Michelson's legal services, or who was liable for Mr. Michelson's services.
The evidence failed to prove whether Mr. Feren was liable for any of the fees or costs incurred as a result of defending the Complaint.
The evidence also failed to prove that Mr. Feren paid any of the fees or costs incurred as a result of defending the Complaint or Amended Complaint.
Cost and Attorney's Fees Incurred.
A reasonable hourly rate for Mr. Michelson's legal service is $125.00 per hour.
Based upon Mr. Goren's expert testimony, the total amount of attorney fees reasonably incurred as a result of Mr. Colon's Complaint is $19,200.50. Although Mr. Goren testified that the total reasonable fee was $19,255.00, the amounts of the individual bills for service that he reviewed totalled
$19,200.50.
Mr. Feren offered into evidence a bill for legal services dated May 18, 1992, in the amount of $1,768.75. See Petitioner's Exhibit 9. No testimony concerning this exhibit was offered to explain what the exhibit is, other than Mr. Goren's testimony that a bill for $1,770.00 of May 18, 1992, was reasonable.
Mr. Colon offered a number of exhibits which appear to be minutes and/or agendas of meetings of the City Commission of Sunrise. Mr. Colon also offered what appears to be several bills from Mr. Michaelson concerning this matter. These exhibits, Respondent's Exhibits 5-8 and 10, were not properly authenticated or identified. They also constitute hearsay. It is also not apparent from the exhibits whether the amounts identified were actually paid or whether they were reasonable.
The weight of the evidence failed to prove what the reasonable costs of responding to the Complaint was. Although Mr. Colon did offer into evidence which included what appeared to be information concerning the costs which may have incurred by Mr. Michelson, there was no testimony concerning what the information was, whether the costs were paid or even whether that the costs were incurred as a result of the Complaint. Additionally, there was no testimony that those costs were "reasonable".
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).
Burden of Proof.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA
1981); and Balino V. Department of Health and Rehabilitative Services, 348 So.2d
249 (Fla. 1st DCA 1977). In this proceeding it is Mr. Feren that is asserting the affirmative. Therefore, the burden of proving that Mr. Colon should be required to pay attorney's fees and costs, and the amount thereof, was on Mr. Feren. See Rule 34-5.029(3), Florida Administrative Code.
The Requirements of Section 112.317(8), Florida Statutes.
Section 112.317(8), Florida Statutes, authorizes the Commission to award attorney's fees and costs to any person complained against:
(8) 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 and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the person complained against. . . .
See also Rule 34-5.029, Florida Administrative Code.
In order to be entitled to payment for attorney's fees and costs it must be proved: (1) that the complaint was made with a malicious intent to injure the reputation of the public officer or employee; and (2) that the complaint was frivolous and without basis in law or fact. If these two facts are proved, an award of reasonable attorney's fees and costs "incurred by the person complained against" is to be ordered.
The Complaint was made with a Malicious Intent to Injure Mr. Feren's Reputation.
In determining whether a complaint has been filed with malicious intent, Rule 34-5.029(3), Florida Administrative Code, provides the following:
. . . . "Malicious intent to injure the reputation" may be proven by evidence showing ill will or hostility as well as by evidence showing that the complainant intended to bring discredit upon the name or character of the respondent by filing such complaint with knowledge that the complaint contained one or more false allegations or with reckless disregard for whether the
complaint contained false allegations of fact material to a violation of the Code of
Ethics for Public Officers and Employees. Such reckless disregard exists where the complainant entertained serious doubts as to the truth or falsity of the allegations, where the complainant imagined or fabricated the allegations, or where the complainant filed an unverified anonymous tip or where there are obvious reasons to doubt the
veracity of the information or that of the source of the information. [Emphasis added].
The evidence in this case proved that there was ill will and hostility between Mr. Colon and Mr. Feren. Additionally, the evidence proved that some of the essential allegations of fact material to a violation of the Code of Ethics for Public Officers and Employees against Mr. Feren written in the Complaint, as amended, by Mr. Colon were not supported by anything other than an anonymous letter.
The allegations of facts material in Mr. Colon's Complaint are set out in finding of fact 15. One of the most significant of these facts is the allegation that Mr. Feren had conducted title closings for Universal Title Insurors. The anonymous letter does not make such a specific allegation. More importantly, nothing that Mr. Colon did provided any substantiation of this material fact.
Mr. Colon waited until the final hearing of this case to contend that he had attempted to verify the fact that Mr. Feren had been involved in title closings for Universal Title Insurors by telephoning Universal Title Insurors. The alleged telephone call to Universal Title Insurors, based upon the weight of the evidence, was not made by Mr. Colon. Therefore, Mr. Colon took no steps to determine whether Mr. Feren in fact had handled title closings for Universal Title Insurors. Nor did Mr. Colon adequately explain how he reached the conclusion that Mr. Feren had handled such closings.
Even if Mr. Colon had received the anonymous telephone call and had been told by Mr. Hoffman that Mr. Feren was engaged in the alleged activities, this information would not change the conclusion that the Complaint was filed with a maliciousness intent. The alleged telephone call, like the letter, was anonymous. Mr. Hoffman's alleged comment did not include any explanation concerning the basis for the statement. Mr. Colon should have at least inquired of Mr. Hoffman why he believed that Mr. Feren had been acting in the manner allegedly described by Mr. Hoffman.
Mr. Colon's ill will toward Mr. Feren was so severe, that he was willing to make charges against Mr. Feren based upon an anonymous, unverified tip and without regard to any harm to Mr. Feren's reputation should the allegations be untrue.
The Complaint, as Amended, was Frivolous and Without Basis in Law or Fact.
The evidence proved that the specific acts alleged by Mr. Colon in the Complaint, as amended, did not occur. Mr. Feren has not handled title closings with Universal Title Insurors. The evidence even failed to prove that Universal Title Insurors is a subsidiary of Lennar Corporation or that Mr. Feren has voted on matters involving Lennar Corporation. Therefore, the allegations raised by Mr. Colon were frivolous and without any basis in law or fact.
Attorney's Fees and Costs Incurred by Mr Feren.
The evidence in this case proved that the time spent on Mr. Feren's behalf by Mr. Michelson was reasonable. The evidence also proved that $125.00 is a reasonable hourly rate for such representation. The amount of the attorney fees sought in this case total $19,255.00. Based upon the weight of the
evidence, the reasonable attorney fees in this case amount to $19,200.50. This amount is reasonable. No costs have been sought, or proved, by Mr. Feren.
As was the case in the Chapin Recommended Order and Final Order, the question arises in this case as to whether an award of attorney's fees in this matter should be limited to the actual amount expended by Mr. Feren or the actual amount for which Mr. Feren was liable. In the Chapin Recommended Order the undersigned concluded that, as a matter of law, no attorney fees or costs should be awarded because Orange County and not Ms. Chapin, the "person complained against", had "incurred" the fees and costs.
The decision in the Chapin Recommended Order was based upon the fact that Section 112.317(8), Florida Statutes, the authority for awarding fees and costs in Chapin and in this case, specifically states that an award of reasonable attorney's fees may be made for fees and costs "incurred by the person complained against." Ms. Chapin was the "person complained against". Giving the term "incurred" it's plain and ordinary meaning, it was concluded that the evidence in Chapin had failed to prove that Ms. Chapin had "incurred" any fees or costs. Instead, Orange County had provided Ms. Chapin's defense and paid the costs associated therewith.
The Commission rejected the foregoing conclusions of law in the Chapin Final Order. The Commission concluded, as was recognized in the Chapin Recommended Order, that the Legislature intended to punish persons who make malicious and baseless ethics complaints and to deter such conduct. The Commission then concluded that the Legislature could not have intended to exclude an award of fees and costs under Section 112.317(8), Florida Statutes, where the person complained against was represented by counsel provided by the governmental entity to which the person complained about was associated.
Although it is recognized that the conclusions of law reached by the Commission reached in the Chapin Final Order will ultimately govern this matter, the Chapin Final Order is not persuasive. While the result in Chapin may be the correct one, the conclusions of law supporting that result ignore the plain and unambiguous language used by the Legislature in Section 112.317(8), Florida Statutes. The Legislature, in adopting Section 112.317(8), Florida Statutes, included the term "incurred" even though this term is not included in other similar provisions of Florida law providing for an award of attorney fees. See Section 57.105, Florida Statutes. The Legislature presumably was aware of the provisions of Section 57.105, Florida Statutes, and the court decisions interpreting that law. Why then did the Legislature use the terms "incurred by the person complained against" in enacting Section 112.317(8), Florida Statutes, when such terms are no included in Section 57.105, Florida Statutes. The Commission's decision in Chapin ignores those terms and reduces them to a meaningless phrase.
Section 120.57(1)(b)9, Florida Statutes, requires hearing officers to enter recommended orders in cases such as this one and requires the hearing officer to make findings of fact and conclusions of law. The undersigned is not aware of any requirement of Chapter 120, Florida Statutes, that the conclusions of law reached by an agency in one case must be followed in subsequent cases heard by a hearing officer of the Division of Administrative Hearings. Therefore, and based upon the foregoing brief discussion of the Chapin case, it is concluded that the conclusions of law reached in the Chapin Recommended Order should apply to this case.
As in Chapin, the evidence in this case fails to support an award of attorney fees. As was the case in Chapin, Mr. Feren failed to meet his burden of proof that he "incurred" any fees in this matter. At best, the evidence proved that the City of Sunrise paid some, but not even all, of Mr. Michelson's fees. More importantly, the evidence failed to prove that Mr. Feren was liable at any time for any amount of attorney fees in this matter.
It is recognized that the Commission will, in all likelihood, apply the same conclusions of law reached by it in the Chapin Final Order to this case. If so, the evidence did prove that the reasonable attorney fees associated with Mr. Colon's Complaint was $19,200.50. Therefore, having concluded that Mr. Colon's Complaint, as amended, was made with a malicious intent to injure Mr. Feren's reputation and that the Complaint was frivolous and without basis in law or fact, the Commission's conclusions of law in the Chapin Final Order would support an award to Mr. Feren of $19,200.50.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order dismissing
the Petition for Attorney's Fees and Costs be DISMISSED.
DONE and ENTERED this 5th day of February, 1993, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1993.
APPENDIX
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Mr. Feren's Proposed Findings of Fact 1-2 Accepted in 1.
Accepted in 3. The correct date is March 26, 1991 and not March 29, 1991.
Accepted in 4.
Accepted in 5, 8 and hereby accepted.
Accepted in 9-10.
Accepted in 11.
Accepted in 12.
See 40-44. The evidence failed to prove exactly who "hired" Mr. Michelson.
Not supported by the weight of the evidence. The only evidence concerning this matter consisted of document that suggested that bills were provided to the City of Sunrise. The documents were not identified, authenticated nor explained. The only credible evidence concerning the amount of attorney fees was offered through the testimony of Mr. Goren. That testionly dealt with the question of the reasonable amount of time and fees for Mr. Michelson's work. Evidence concerning who was responsible for the fees and whether the fees were paid was not offered by Mr. Feren.
11 See 41-44.
Accepted in 21 and 24.
Accepted in 30.
Accepted in 29.
15 See 24-27 and 29-32.
Accepted in 10-11.
Hereby accepted.
Not supported by the weight of the evidence.
Accepted in 21 and 24.
20-24, 26-28 These proposed findings of fact are cumulative and unnecessary. Almost identical proposed findings of fact have already been made. Proposed finding of fact 23 is not supported by the weight of the evidence. Mr. Colon did rely on something besides the anonymous letter. See findings of fact 16-18.
25 See 28.
Hereby accepted.
See 45.
Primarily a summary of testimony. See 46.
Primarily a summary of testimony. See 35. The 5th and 6th sentences are not relevant.
33-35 Hereby accepted.
Accepted in 33-34 and 36.
Accepted in 39. Whether Mr. Feren was caused "great personal distress" is not the legal issue. At issue is whether Mr. Colon acted with the intent of injuring Mr. Feren's reputation.
These proposed findings of fact are cumulative and unnecessary. Almost identical proposed findings of fact have already been made. The second sentence is not supported by the weight of the evidence.
Accepted in 33-34.
Accepted in 33-34 and 39.
Not supported by the weight of the evidence.
See 39.
Not supported by the weight of the evidence.
Accepted in 20.
Mr. Colon's Proposed Findings of Fact
1-2 Accepted in 1. Mr. Feren was elected in 1987 and not 1989.
Not relevant to this proceeding. The decision in this case did not depend on whether Mr. Colon disclosed the Complaint to the media. Nor was any evidence offered by the Mr. Feren to support such an allegation. The last two sentences are not supported by the weight of the evidence.
There is no proposed finding of fact 4.
The first sentence is not supported by the weight of the evidence. Mr. Colon did contact Lennar Corporation, the city clerk's office and Ms. Vega. See 16-18. The evidence failed to prove that Universal Title Insurors is a subsidiary of Lennar Corporation.
Not supported by the weight of the evidence. See 27.
16-18. The third sentence is not supported by the weight of the evidence. See 29-32. The last two sentences are not supported by the weight of the evidence.
Accepted, in part, in 3. Whether Mr. Colon receives lots of anonymous letters is not relevant. He also did not contact "various" city officials. He contacted two. See 16 and 17. The last sentence as "(d)" are not supported by the weight of the evidence.
See 5.
Not supported by the weight of the evidence, not relevant or conclusions of law.
Not relevant.
Not relevant and not supported by the weight of the evidence.
Although consistent with Mr. Colon's testimony, see 33-34. Mr. Colon's testimony was not "credible and supported by the facts" in all respects.
Not supported by the weight of the evidence. See 33-39.
There is no proposed finding of fact 15.
Not supported by the weight of the evidence.
Not supported by the weight of the evidence.
18 See 40-44.
Not supported by the weight of the evidence.
Not supported by the weight of the evidence.
Not supported by the weight of the evidence.
Not supported by the weight of the evidence and not relevant.
The remainder of Mr. Colon's proposed order beginning on page 14 consists of conclusions of law.
COPIES FURNISHED:
Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517
Bay Harbor Islands, Florida 33154
Bill Colon
11640 N.W. 30th Place Sunrise, Florida 33323
Bonnie J. Williams Executive Director Commission on Ethics Post Office Box 6
Tallahassee, Florida 32302-0006
Phil Claypool General Counsel Commission on Ethics Post Office Box 6
Tallahassee, Florida 32302-0006
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY ORDER OF REMAND
=================================================================
BEFORE THE STATE OF FLORIDA
COMMISSION ON ETHICS
In re STEVEN B. FEREN,
Respondent, Complaint No. 91-45 DOAH Case No. 92-2458EC
/
ORDER OF REMAND TO THE DIVISION OF ADMINISTRATIVE HEARINGS
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on February 5, 1993, by the Division of Administrative
Hearings' Hearing Officer (a copy of which is attached and incorporated by reference). The Hearing Officer recommends that the Commission enter a Final Order dismissing the Petition for Attorney's Fees and Costs. Both Respondent/Petitioner and Complainant/Respondent filed exceptions to the Recommended Order.
Having reviewed the Recommended Order, the exceptions, and the record of the public hearing of this petition, and having considered the arguments of counsel for the Respondent/Petitioner, Steven B. Feren, and the arguments of the Complainant/Respondent, Bill Colon, the Commission makes the following findings, conclusions, rulings and determinations:
Rulings on Exceptions
Respondent/Petitioner, Steven Feren, excepts to the Hearing Officer's Findings of Fact at paragraph 42 and 43 of the Recommended Order in which the Hearing Officer found that the evidence presented failed to prove who retained Attorney Michelson, what type of agreement was entered into for Attorney Michelson's legal services, or who was liable for any of the fees or costs incurred as a result of Mr. Michelson's defending Mr. Feren against the complaint. Mr. Feren argues that there is sufficient evidence in the record to support a finding that Attorney Michelson represented Mr. Feren and billed both the City of Sunrise and Mr. Feren at the hourly rate of $125.00 and that the City of Sunrise has paid some of these bills. The evidence cited by Mr. Feren as supporting his proposed findings was hearsay, and could not be used to support his proposed findings. Because there is competent substantial evidence of record upon which the Hearing Officer could base his finding, this exception is rejected.
However, the findings that Mr. Feren proposes be made were, in fact, made.
See Findings of Fact Nos. 40, 41, and 45. Findings of Fact 42 and 43 are not inconsistent with these findings and are supported by competent substantial evidence in the record. Furthermore, as stated by the Court in Heifetz v.
Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So.2d
566 (Fla. 3rd DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.
The Hearing Officer was properly fulfilling this function. It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings, as there is here.
Respondent/Petitioner, Steven B. Feren, excepts to that portion of the Appendix to the Recommended Order wherein the Hearing Officer finds that Mr. Feren's proposed finding of fact 43 is "not supported by the weight of the evidence." Proposed finding of fact 43 states: "Mr. Colon never had any
personal knowledge of any facts which would indicate that Mr. Feren was employed by Universal Title Insurers." Because there is competent substantial evidence in the record upon which the Hearing Officer could base his ruling, the exception is rejected.
Mr. Feren argues that by not adopting his proposed finding of fact, an inconsistency exists with the Hearing Officer's specific finding that "Mr. Colon's complaint was frivolous and without basis in law or fact." By a preponderance of the evidence, the Hearing Officer rejected most of the explanations given by the Complainant/Respondent, Bill Colon, as to the information he relied upon when filing his complaint. This is not the same as rejecting the testimony because Mr. Colon had no "personal knowledge" of any "facts" which would indicate that Mr. Feren was employed by Universal Title Insurers. The Hearing Officer fulfilled his function of weighing the evidence and the credibility of the witnesses in determining the reasonableness of the assumptions (see Finding of Fact 15, Recommended Order) made by Mr. Colon prior to his filing the complaint against Respondent/Petitioner Feren.
Respondent/Petitioner excepts to the Hearing Officer's use of the term "reject" when referring to portions of Mr. Colon's testimony. Respondent/Petitioner argues that the term is subject to some ambiguity. This exception is rejected.
The term "reject" is not a special term of art. Because it is not our function to rewrite the Hearing Officer's Findings of Fact when they are supported by competent substantial evidence of record, and because we do not find any ambiguity in the Hearing Officer's use of the term, we find that this exception has no merit.
Respondent/Petitioner, Steven B. Feren, excepts to paragraphs 65, 66, and 67 of the Conclusions of Law in the Recommended Order. Mr. Feren writes that although the Hearing Officer acknowledges that if the Commission applies the same conclusions of law reached by it in the case of Chapin v. Couch, it would enter an award of attorney's fees against Mr. Colon, he concludes that the Chapin Final Order is not persuasive. Mr. Feren argues that the Hearing Officer is bound to follow the Commission's reasoning in Chapin, as a matter of law. He argues that the doctrine of stare decisis mandates that result.
While we find that administrative due process "requires agency consistency among like petitioners and respondents." Central Florida Regional Hospital v.
DHRS, 582 So.2d 1193, 1196 (Fla. 5th DCA 1991); North Miami General Hospital v. Office of Community Medical Facilities, DHRS, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978), we do not find that the rule of stare decisis applies here. The rule is that "when a point has once been settled by judicial decision it should in the main be adhered to, for it forms a precedent to guide courts in future similar cases." 13 Fla. Jur. 2d Courts and Judges, Section 136. However, the Commission's Final Order in Chapin, which interpreted Section 112.317(8), Florida Statutes, was rendered on July 22, 1992. Even if we assume that the doctrine of stare decisis applies to decisions of administrative agencies, the Commission's holding, which is presently under appeal to the Fifth District Court of Appeals in Case No. 92-02016, was the first and only one interpreting this provision of the Code of Ethics and is not one of such long standing that the doctrine can or should apply.
However, we reject the Hearing Officer's conclusions here and find that the Hearing Officer erred in concluding that the plain and unambiguous language used by the Legislature in Section 112.317(8), Florida Statutes, only provides for an
award of attorney's fees in situations where the person complained against "incurred fees." As we found in Chapin, we also find here that the Legislature intended, in enacting Chapter 75-208, Laws of Florida, which is codified at Section 112.317(8), Florida Statutes (the costs and attorney's fee provision at issue here), to punish persons who make malicious and baseless ethics complaints, such as that found by the Hearing Officer and this Commission to have been made by Mr. Colon against Mr. Feren, and thereby intended to deter similar conduct.
The Hearing Officer adheres unduly to what he considers to be the strict language of the provision and focuses on the phrase "incurred by the person complained against" in coming to his conclusion and recommendation that costs and attorney's fees should not be awarded. However, it is a fundamental rule of statutory construction that legislative intent is the polestar by which a body must be guided in determining the meaning of a statute, and this intent must be given effect even though it may contradict the strict letter of the statute.
Furthermore, construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided. See State v. Webb, 398 So.2d 820, 824 (Fla. 1981); City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla. 1950).
To determine legislative intent, the act as a whole--the evil to be corrected, the language of the act, including its title, the history of the enactment, and the state of the law already in existence bearing on the subject-
-must be considered. The origins and purposes of this attorney's fee provision at issue here point toward a construction different from that placed upon it by the Hearing Officer and one which will fulfill the purposes of the provision--to punish and deter those who would abuse the complaint filing provisions of the Code of Ethics.
We also conclude that because the right of a public officer or employee to be represented by counsel retained by his agency in situations such as that encountered by the Respondent/Petitioner, Steven Feren, pursuant to the filing of an ethics complaint against him had not been clearly established by Florida case law at the time of the enactment of the attorney's fee provision at issue, it is reasonable to conclude that the phrase "incurred by the person complained against" was not chosen in order to limit the award only to those cases in which a public official or employee personally paid funds from his or her own pocket, rather than where the agency also was providing or paying for the official's representation. We find that the meaning of the term "incur" encompasses situations such as that of the Respondent, Mr. Feren, and is not limited to situations where the Respondent pays fees directly to his attorney out of his own pocket.
The Hearing Officer also argues that the Legislature, when it adopted Section 112.317(8), Florida Statutes, used the term "incurred" even though that term was not included in Section 57.105, Florida Statutes, and that, since the Legislature presumably was aware of the provisions of Section 57.105 and the judicial decisions interpreting that Section when it adopted Section 112.317(8), the Legislature must have intended Section 112.317(8) to apply differently from Section 57.105. However, this disregards the fact that Section 57.105 was created after Section 112.317(8) and, therefore, the Legislature could not have been aware of the provisions of Section 57.105 and court decisions interpreting that provision when it adopted Section 112.317(8). (Section 112.317(8) was created by Ch. 75-208, Laws of Florida, while Section 57.105 was created by Chapter 78-275, Laws of Florida.)
Complainant/Respondent, Bill Colon, excepts generally to the manner and method utilized by the Hearing Officer in arriving at his conclusions and recommendations. Mr. Colon believes that the Hearing Officer's Recommended Order is a reflection of his negative reaction to Mr. Colon's representation of himself during these proceedings. As an example, Mr. Colon argues that the Hearing Officer accepted Mr. Feren's Proposed Recommended Order over Mr. Colon's objection that it was two days late. He writes that the Hearing Officer ruled that because Mr. Colon's objection did not state that its acceptance was "prejudicial to [his] interest," it would be accepted. Mr. Colon argues that "any astute individual perusing the Proposed Recommended order would conclude without exception that the order was in fact prejudicial to my interest." However, Mr. Colon misinterpreted the Hearing Officer's ruling. The issue was not whether Mr. Feren's Proposed Recommended Order itself was "prejudicial to [his] interest," the issue is whether Mr. Colon was prejudiced in any way through the Hearing Officer's acceptance of the Proposed Recommended Order, which is merely advisory to the Hearing Officer. Respondent's exception, therefore, is rejected, as these proceedings were conducted by the Hearing Officer in compliance with the essential requirements of the law.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's failure to find in the last paragraph of page 3 of the Recommended Order that Mr. Feren's attorney admitted that Mr. Feren did not incur any attorney's fees or costs and that a possibility existed that a "subrogation claim" could be asserted by Mr. Feren. This exception is rejected as there is no competent substantial evidence of record to support such a finding. Additionally, Mr. Colon argues that the Hearing Officer erred in permitting Mr. Feren to file an Amended Petition for Attorney's Fees after the initial petition had been dismissed for his failure to specifically allege that "[Mr. Feren] had incurred attorney's fees and cost[s]." We find that the Hearing Officer did not err in permitting the filing of the amended petition and the procedures followed in these proceedings complied with the essential requirements of the law.
Complainant/Respondent, Bill Colon, excepts to Mr. Feren's absence from the hearing. Mr. Colon argues that as a result of Mr. Feren's absence, "the full facts were not present[ed]." This exception is rejected. Mr. Colon chose to represent himself in these proceedings. Therefore, he was obligated to present any facts that he thought relevant to a determination by the Hearing Officer of the issues in these proceedings. We note that apart from Mr. Colon's failure to list Mr. Feren as a witness to be subpoenaed for the hearing, the Hearing Officer granted Mr. Colon the opportunity to take Mr. Feren's deposition. Mr. Colon failed to avail himself of this opportunity.
Mr. Colon argues further that Mr. Feren's attorney never contacted him to advise him of a date that would have been convenient to Mr. Feren for the taking of Mr. Feren's deposition. We are of the opinion that Mr. Colon had an equal, if not greater, responsibility to contact Mr. Feren's attorney about scheduling Mr. Feren's deposition.
Complainant/Respondent, Bill Colon, excepts to the acceptance of Mr. Feren's exhibits "without exception." This exception is rejected. The record of these proceedings indicates that although Mr. Colon was given the opportunity to raise any objections that he might have to any of the exhibits, he failed to do so.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's findings concerning Mr. Colon's response to the Commission's staff attorney's letter to Mr. Colon which sought additional information to support the
allegations Mr. Colon had made in his complaint. See paragraphs 4, 5, 6, 7, and
8 of the Recommended Order. Mr. Colon argues that the Hearing Officer's findings were "prejudiced" to him. Mr. Colon's exception is rejected.
As we stated in paragraph 1 above and we reiterate here, among other things, it is the Hearing Officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence presented, and reach ultimate findings of fact based on competent substantial evidence. The Hearing Officer properly fulfilled this function. It is not our function to reweigh the evidence or attempt to draw different inferences from the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings, as there is here.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's failure to contact the Commission's investigator to ascertain the truth of [Bill Colon's] comments. This exception is rejected. The role of the hearing officer is discussed in paragraphs 1 and 9 above. It is the obligation of the parties to present all relevant evidence to the Hearing Officer, not the Hearing Officer's function to conduct an independent investigation.
Complainant/Respondent, Bill Colon, excepts to the comments of the Hearing Officer in paragraphs 14 and 15 of the Recommended Order. This exception is rejected as there exists substantial competent evidence of record to support the Hearing Officer's findings. Paragraph 15 is merely the Hearing Officer's statement of permissible inferences drawn from the evidence presented.
Complainant/Respondent excepts to the "comments and conclusions" made by the Hearing Officer in paragraph 20 of the Recommended Order wherein the Hearing Officer found:
The weight of the evidence failed to prove that Mr. Colon made any effort prior to filing the complaint or amended complaint to verify the assumptions he had made as set out in findings of fact 15(a), (b), (c) or (e). The most significant of the assumptions which Mr. Colon made no effort to verify was the assumption that Mr. Feren had performed closing for Lennar Corporation or Universal Title Insurers. Mr. Colon's complaint was frivolous and without basis in law or fact.
Mr. Colon writes that Mr. Feren admitted in deposition that he conducted closings with Universal Title Insurers for his clients, not on behalf of Universal Title Insurers. Therefore, he argues, the complaint was not frivolous, and until "an investigation is completed to determine what side of the table Mr. Feren was sitting," a determination as to whether there was any basis in law for the complaint cannot be made. However, contrary to Mr. Colon's assertions, we are of the opinion that whether there is any basis in law or fact for a complaint should be known by the complainant at the time of or prior to the filing of a complaint. Because there is competent substantial evidence of record to support the Hearing Officer's findings, this exception is rejected.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's findings in paragraphs 21, 22, and 23 of the Recommended Order. He argues that "even a reasonable and prudent man after an extended period of time could forget
a 3 to 5 minute phone call after a period of time." Thus, his forgetting the phone call should not lead the Hearing Officer to the conclusion that he "fabricated the facts." However, as we stated in paragraphs 1 and 9 above, it is the Hearing Officer's function to judge the credibility of witnesses, as he did here. Because there is competent substantial evidence of record to support the Hearing Officer's findings, this exception is rejected.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's findings in Part H and paragraphs 27 and 28 of the Recommended Order wherein the Hearing Officer rejects Mr. Colon's testimony concerning "the alleged comments of Mr. Hoffman." Mr. Colon argues that the Hearing Officer should have made inquiries to ascertain the truth of the matter. For the reasons stated in paragraph 10 above, this exception is rejected.
Complainant/Respondent, Bill Colon, excepts to paragraph 33 of the Recommended Order wherein the Hearing Officer, among other things, finds: "Mr. Colon also considers himself the 'Watchdog of the City.'" Mr. Colon argues that the testimony presented at the hearing indicates that the "people of Sunrise" gave him that title; he did not assume it for himself, as a fanatic might. Mr. Colon contends that the Hearing Officer's finding was intended solely to ridicule him. This exception is rejected as there is competent substantial evidence of record to support the Hearing Officer's finding.
Complainant/Respondent excepts to the Hearing Officer's Finding of Fact 34 of the Recommended Order in which he finds that Mr. Colon filed his complaint with a malicious intent to injure Mr. Feren's reputation. Mr. Colon argues that the Hearing Officer's finding is based solely on Mr. Feren's deposition which was admitted into evidence over his objections. This exception is rejected. Initially we note that contrary to Mr. Colon's assertion, the Hearing Officer stated his finding was "based upon Mr. Colon's dealings with Mr. Feren as evidenced by the testimony of Mr. Colon and Mr. Feren." [Emphasis added.] The admission into evidence of Mr. Feren's deposition by the Hearing Officer, who also gave Mr. Colon the opportunity to take Mr. Feren's deposition, complied with the essential requirements of the law.
Complainant/Respondent excepts to the Hearing Officer's Finding of Fact 36 of the Recommended Order wherein he finds:
Although filing a complaint in and of itself may not be of much consequence in determining a person's motive, the fact that Mr. Colon has filed other complaints against Mr. Feren, when considered with the other testimony, supports the conclusions reached in this Recommended Order.
Mr. Colon argues that the Hearing Officer did not examine the three complaints or the basis for their dismissal but chose to accept Mr. Feren's argument "that anyone filing a complaint should be punished for doing so." Mr. Colon's interpretation of the Hearing Officer's finding is a distortion of what the Hearing Officer, in fact, found. Because there is competent substantial evidence of record to support the Hearing Officer's finding, the exception is rejected.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's findings in paragraphs 37 and 38 of the Recommended Order wherein he quotes portions of Mr. Colon's deposition testimony to indicate that Mr. Colon was
other than neutral "concerning Mr. Feren as an individual." Mr. Colon argues that if the Hearing Officer had properly looked into the matter and followed the "established guidelines," he would have reached a different conclusion. Because we find that there was competent substantial evidence of record to support the Hearing Officer's findings, the exception is rejected. We also find, as we have previously found, that the procedures followed by the Hearing Officer in these proceedings complied with the essential requirements of the law.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's Finding of Fact 39 of the Recommended Order wherein he discusses the potential harm that may have arisen to Mr. Feren's reputation as a result of the filing of Mr. Colon's complaint. Mr. Colon argues that "could have" possibilities have no basis in the law. Because the Hearing Officer's findings are permissible inferences drawn from the competent substantial evidence of record, this exception is rejected.
Complainant/Respondent, Bill Colon, excepts to the Hearing Officer's Findings of Fact 41, 42, and 43 of the Recommended Order wherein he found that the City of Sunrise authorized payment of some of the attorney's fees owed to Mr. Michelson as a result of his representation of Mr. Feren, and that the evidence failed to prove who retained Mr. Michelson, what type of agreement was entered into for Mr. Michelson's legal services, or even whether Mr. Feren was liable for any of the fees or costs incurred as a result of defending the complaint. Mr. Colon argues that without a thorough investigation of the facts, the Hearing Officer jumped to a conclusion that was not substantiated by the facts and the law. As we have previously stated, it is not the Hearing Officer's function to conduct an investigation of the facts. Because there was competent substantial evidence of record to support the Hearing Officer's findings, the exception is rejected.
Complainant/Respondent, Bill Colon excepts to Finding of Fact 48 of the Recommended Order wherein the Hearing Officer wrote that among the exhibits that Mr. Colon offered into evidence, which were not properly authenticated or identified, were minutes and/or agendas of meetings of the City Commission of Sunrise and several bills from Mr. Michelson. He also wrote that these exhibits constituted hearsay. Mr. Colon argues that hearsay evidence is admissible. He also argues that Attorney Michelson was given free reign to do anything and say anything he wanted without "having to be concerned with procedures or even the law."
Initially we note that the rule on the admissibility of hearsay evidence in administrative proceedings is set forth in Section 120.58(1)(a), Florida Statutes, which provides: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Because these proceedings were held in compliance with the essential requirements of law, the exception is rejected.
Complainant/Respondent, Bill Colon, excepts generally to the Hearing Officer's conclusions. Mr. Colon argues that the Hearing Officer's conclusions are based on the one-sided deposition of Mr. Feren. For the reasons stated in paragraphs 7 and 9 above, this exception is rejected.
Complainant/Respondent, Bill Colon, excepts to paragraphs 56, 57, and
58 of the Hearing Officer's Conclusions of Law. For the reasons stated in paragraphs 6, 10, and 12 above, this exception is rejected.
Complainant/Respondent, Bill Colon, excepts to paragraph 60 of the Hearing Officer's Conclusions of Law wherein he concludes "that the specific acts alleged by Mr. Colon in the Complaint, as amended, did not occur." Mr. Colon argues that the Hearing Officer failed in his investigation of this matter and completely ignored what he presented as well as Mr. Michelson's admission that Mr. Feren did in fact conduct closings at Universal Title Insurers. For the reasons stated in paragraphs 1, 10, and 12 above, this exception is rejected.
Findings of Fact
With the exception of paragraph 46, and paragraphs 61 and 68, to the extent that they constitute findings of fact, the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
In paragraph 46, the Hearing Officer found:
Based upon Mr. Goren's expert testimony, the total amount of attorney fees reasonably incurred as a result of Mr. Colon's Complaint is $19,200.50. Although Mr. Goren testified that the total reasonable fee was $19,255.50, the amounts of the individual bills for service that he reviewed totalled $19,200.50.
However, this finding is based solely on Respondent's Expert's testimony that after reviewing Respondent's Attorney's files and a number of bills presented by the Respondent it was his opinion that $125.00 per hour is a reasonable fee and the amount of fees reasonably incurred is $19,200.50. This finding fails to meet the methodology set forth by the Court in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), for determining the amount of reasonable attorney's fees to be awarded. There the Court adopted the federal lodestar approach which requires a court to determine the number of hours reasonably expended on the litigation and to multiply that amount by a reasonable hourly rate for the services of the attorney. The factors to be considered by a court in making these determinations also are set forth in the opinion. See also Ganson v. State Department of Administration, 554 So.2d 522 (Fla. 1st DCA 1989), where the court approved and adopted the report and recommendation of the DOAH hearing officer establishing the amount of reasonable fees for the administrative phase, appeal phase, and attorney fee phase, of an administrative proceeding employing the Rowe methodology; Tucker v. Tucker, 513 So.2d 733 (Fla. 2d DCA 1987), regarding the necessity of providing the attorney's time records under Rowe; and Dralus v. Dralus, 18 FLW D302 (Fla. 2d DCA 1993). Therefore, because there is a lack of competent substantial evidence to support the Hearing Officer's findings in paragraph 46 of his Findings of Fact and in paragraphs 61 and 68 of his Conclusions of Law, to the extent that they constitute findings of fact, these findings are rejected.
Conclusions of Law
With the exception of paragraph 61, to the extent that it constitutes a conclusion of law, and paragraph 68 and as modified above, the Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
In paragraph 68, the Hearing Officer concludes:
It is recognized that the Commission will, in all likelihood, apply the same conclusions of law reached by it in the Chapin Final Order to this case. If so, the evidence did prove that the reasonable attorney fees associated with Mr. Colon's Complaint was $19,200.50.
Therefore, having concluded that Mr. Colon's Complaint, as amended, was made with a malicious intent to injure Mr. Feren's reputation and that the Complaint was frivolous and without basis in law or fact, the Commission's conclusions of law in the Chapin Final Order would support an award to Mr. Feren of $19,200.50.
Because this conclusion, which is based upon paragraph 46 of the Hearing Officer's Findings of Fact, is rejected because it is not supported by competent substantial evidence of record, this conclusion, likewise, is rejected.
Accordingly, the Commission on Ethics concludes that the Complainant/Respondent, Bill Colon, filed an ethics complaint which was frivolous and without basis in law and fact against Respondent/Petitioner, Steven B. Feren, a public officer, with a malicious intent to injure the reputation of the Respondent/Petitioner. However, the Commission is unable to determine the amount of attorney's fees that Mr. Colon is liable to Mr. Feren for without remanding this case to the Division of Administrative Hearings for further evidentiary proceedings necessary to resolve all factual issues concerning the amount of reasonable attorney's fees to be awarded consistent with the methodology set forth in Rowe, supra. See Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989).
Mr. Feren has asked the Commission to reserve its jurisdiction over this matter for purposes of determining his entitlement to attorney's fees incurred for the administrative hearing and subsequent thereto. While the Commission does not decide here whether Mr. Feren is entitled to these attorney fees, it does conclude that the Commission does not have the authority to reserve jurisdiction to make further factual findings and, therefore, must remand this issue to the Division of Administrative Hearing for further evidentiary proceedings necessary to resolve this issue as well.
WHEREFORE, the Commission on Ethics remands this case to the Division of Administrative Hearings for further evidentiary proceedings with respect to each applicable aspect of Rowe.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, April 22, 1993.
April 30, 1993 Date
Stephen N. Zack Chairman
cc: Mr. Bill Colon, Complainant/Respondent
Mr. Stuart R. Michelson, Attorney for Respondent/Petitioner Division of Administrative Hearings
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RECOMMENDED ORDER
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STEVEN B. FEREN, )
)
Petitioner, )
)
vs. ) CASE NO. 92-2458EC
)
BILL COLON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on April 11, 1994, in Fort Lauderdale, Florida.
APPEARANCES
For Respondent: Stuart R. Michelson, Esquire
1111 Kane Concourse, Suite 517
Bay Harbor Islands, Florida 33154
For Complainant: Bill Colon, Pro Se
11640 Northwest 30th Place Sunrise, Florida 33323
STATEMENT OF THE ISSUES
What is the amount of reasonable attorney's fees and costs incurred by Steven Feren in connection with Ethics Complaint No. 91-45 filed against him by Bill Colon.
PRELIMINARY STATEMENT
On April 30, 1993, the Florida Commission on Ethics (Commission) entered an Order of Remand to the Division of Administrative Hearings. The Commission concluded that Complainant, Bill Colon (Colon), filed an ethics complaint which was frivolous and without basis in law and fact against Respondent, Steven B. Feren (Feren), a public officer, with a malicious intent to injure the
reputation of Feren and remanded this case to the Division of Administrative Hearings for further evidentiary proceedings necessary to resolve all factual issues concerning the amount of reasonable attorney's fees to be awarded consistent with the methodology set forth in Florida Patient's Compensation Fund
Rowe, 472 So.2d 1145 (Fla. 1985). The case was originally assigned to Hearing Officer Larry Sartin, who recused himself and transferred the case to Hearing Officer Susan B. Kirkland.
At the final hearing, Feren testified on his own behalf and called Samuel Goren as an expert witness. Respondent's Exhibits 1-3 were admitted into evidence. Colon testified on his own behalf and called Stuart Michelson as a witness.
Feren filed a Motion to Quash the service of process made on Feren and Stuart Michelson. At the hearing Feren withdrew the Motion to Quash. Colon filed a Writ of Error Coram Nobis, which was DENIED at final hearing.
Subsequent to the final hearing, Colon filed a Motion for Rehearing; Motion to Strike Expert Witness Testimony; Motion to Accept Writ of Error; and Motion to Enforce Rule 60Q-2.009. Colon's posthearing motions are DENIED.
The parties agreed to file proposed recommended orders 30 days after the date of the filing of the transcript. The transcript was filed on May 6, 1994. Feren filed proposed findings of fact and conclusions of law on May 26, 1994.
Colon did not file a proposed recommended order. Feren's proposed findings of fact are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
On April 30, 1993, the Florida Commission on Ethics (Commission) issued an Order of Remand to the Division of Administrative Hearings in which the Commission determined that Complainant, Bill Colon (Colon) filed Ethics Complaint No. 91-45, which was frivolous and without basis in law and fact against Respondent, Steven Feren (Feren), a public officer, with a malicious intent to injure the reputation of Feren and remanded this case to the Division of Administrative Hearings for further evidentiary hearings necessary to resolve the issue of the amount of fees to be awarded.
Attorney Stuart Michelson was retained to represent Feren regarding Ethics Complaint No. 91-45 filed by Colon.
Attorney Samuel Goren (Goren) was retained by Feren to testify at the final hearing as an expert witness on the reasonable amount of attorneys fees incurred by Feren. Without objection Goren was qualified and accepted as an expert on the subject of determining reasonable attorney's fees and costs.
Prior to rendering an opinion on the reasonable amount of attorney's fees incurred by Feren, Goren reviewed the following documents relating to these proceedings: three volumes of pleadings, a file on the writ of coram nobis, case decisions regardings the pleadings, the deposition of Colon, the deposition of Feren, the deposition of Peter Ostreich, the deposition of Goren, portions of the transcript of the proceedings before Hearing Officer Sartin on November 16, 1992, and correspondence. Goren reviewed 13 statements from Mr. Michelson for legal services rendered, which statements are Respondent's Composite Exhibit 1. Goren was familiar with the case of Florida Patient's Compensation Fund v. Rowe,
472 So.2d 1145 (Fla. 1985), Florida Bar Rule 4-1.5, Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), Chapter 112, Florida Statutes, and Chapter 34, Florida Administrative Code. Goren also interviewed Mr. Michelson
regarding the work he performed. Based on the foregoing, Goren rendered an opinion on the reasonable hourly rate and the reasonable number of hours for the work performed and consequently a reasonable legal fee for the services rendered in this proceeding.
Mr. Michelson charged an hourly rate of $125 for his services and $40 for the services of a paralegal. Goren opined that based on Mr. Michelson's skill, experience, and reputation that the hourly rates for attorney services were very reasonable for the community. Additionally, Goren opined that the rate of $40 per hour for paralegal services was also reasonable for the community. I hereby find that the hourly rate of $125 for Mr. Michelson's services and the hourly rate of $40 for the services of a paralegal are reasonable.
Mr. Michelson's statement for services rendered from April 16, 1991 through March 10, 1992, totaled 36.1 attorney hours at $125 per hour. Goren opined that 35 hours was a reasonable amount of time for the services performed, and I hereby find that 35 hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Mr. Feren from April 16, 1991 through March 10, 1992, is $4,375.00.
Mr. Michelson's statement for services rendered from March 13, 1992 through April 9, 1992, totaled 25.5 attorney hours at $125 per hour. Goren opined that 25.1 was a reasonable amount of time for the services performed, and I hereby find that 25.1 hours is a reasonable amount of time for services rendered for that time period. The reasonable legal fee incurred by Mr. Feren from March 13, 1992 through April 9, 1992 is $3,137.50.
Mr. Michelson's statement for services rendered from April 13, 1992 through May 16, 1992, totaled 14.15 attorney hours at $125 per hour. Goren opined that 14.1 hours was a reasonable amount of time for the services performed, and I hereby find that 14.1 hours is a reasonable amount of time for services rendered for that time period. The reasonable legal fee incurred by Mr. Feren from April 13, 1992 through May 16, 1992 is $1,762.50.
Mr. Michelson's statement for services rendered from May 19, 1992 through July 17, 1992 totaled 61.55 attorney hours at $125 per hour and .5 paralegal hours at $40 per hour. Goren opined that 61.5 hours for attorney time and .5 hours for paralegal time were reasonable amounts of time for services performed, and I hereby find that 61.5 attorney hours and .5 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from May 19, 1992 through July 17, 1992 are $7,687.50 for attorney services and for $20.00 for paralegal services.
Mr. Michelson's statement for July 20, 1992 through September 14, 1992, totaled 18.2 attorney hours at $125 per hour. Goren opined that 18.2 hours was a reasonable amount of time for the services performed, and I hereby find that 18.2 attorney hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Feren from July 20, 1992 through September 14, 1992 is $2,275.00.
Mr. Michelson's statement for September 15, 1992 through November 16, 1992, totaled 45.25 attorney hours at $125 per hour and 10 paralegal hours at
$40 per hour. Goren opined that 45.2 attorney hours and 10 paralegal hours are reasonable amounts of time for the services performed, and I hereby find that
45.2 attorney hours and 10 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred
by Feren from September 15, 1992 through November 16, 1992 are $5,650 for attorney services and $400 for paralegal services.
Mr. Michelson's statement for November 18, 1992 through January 8, 1993, totaled 32.85 attorney hours at $125 per hour. Goren opined that 32.8 hours is a reasonable amount of time for the services performed, and I hereby find that 32.8 attorney hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Feren from November 18, 1992 through January 8, 1993 is $4,100.00.
Mr. Michelson's statement for January 11, 1993 through February 24, 1993 totaled 36.35 attorney hours at $125 per hour and 9 paralegal hours at $40 per hour. Goren opined that 36.3 attorney hours and 9 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that
36.3 attorney hours and 9 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from January 11, 1993 through February 24, 1993 are $4,537.50 for attorney services and $360 for paralegal services.
Mr. Michelson's statement for February 16, 1993 through April 25, 1993 totaled 51.95 attorney hours at $125 per hour and 12.75 paralegal hours at $40 per hour. Goren opined that 51.9 attorney hours and 12.75 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that
51.9 attorney hours and 12.75 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from February 16, 1993 through April 25, 1993 totaled $6,487.50 for attorney services and $510.00 for paralegal services.
Mr. Michelson's statement for April 26, 1993 through May 30, 1993 totaled 28.40 attorney hours at $125 per hour. Goren opined that 28.4 attorney hours was a reasonable amount of time for the services performed, and I hereby find that 28.4 attorney hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Feren from April 26, 1993 through May 30, 1993 is $3,550.00. The reasonable legal fees incurred by Feren from April 26, 1993 through April 30, 1993 is $93.75 which represents .75 attorney hours at $125 per hour.
Mr. Michelson's statement for June 8, 1993 through September 25, 1993 totaled 63.35 attorney hours at $125 per hour and 56.55 paralegal hours at $40 per hour. Goren opined that 63.3 attorney hours and 56.5 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that
63.3 attorney hours and 56.5 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from June 8, 1993 through September 25, 1993 is $7,912.50 for attorney services and $2,260.00 for paralegal services.
Mr. Michelson's statement for September 27, 1993 through November 26, 1993 totaled 16.1 attorney hours at $125 per hour and 12 paralegal hours at $40 per hour. Goren opined that 16.1 attorney hours and 12 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that
16.1 attorney hours and 12 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from September 27, 1993 through November 26, 1993 are $2,012.50 for attorney services and $480.00 for paralegal services.
Mr. Michelson's statement for December 20, 1993 through March 14, 1994 totaled 18.25 attorney hours at $125 per hour and .75 paralegal hours at $40 per
hour. Goren opined that 18.2 attorney hours and .75 paralegal hours are reasonable amounts of time for the services performed, and I hereby find that
attorney hours and .75 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from December 20, 1993 through March 14, 1994 are $2,275.00 for attorney services and $30.00 for paralegal services.
Feren presented no statements for legal services and costs incurred from March 15, 1994, through the conclusion of the final hearing. Goren opined that a reasonable amount of attorney hours for this period of time would be between 10 and 15 hours. I find that a reasonable number of attorney hours necessary to prepare for and participate in the final hearing on April 11, 1993 is 10 hours. At a rate of $125.00 per hour, the reasonable amount for fees incurred from March 15, 1994 through April 11, 1994 is $1,250.00.
Goren opined that an additional 50 to 75 attorney hours would be needed to bring the case to final conclusion with a final order being entered by the Commission. I find that a reasonable number of attorney hours necessary to bring this case to final conclusion from April 12, 1994 through the entry of a final order by the Commission is 50 hours. At a rate of $125.00 per hour, the reasonable amount of fees that would be incurred from the close of the final hearing to the entry of a final order by the Commission is $6,250.00.
Feren incurred the following costs in connection with Complaint No. 91-45:
$827.04 - Transcript of 11/16/92 hearing
$ 50.00 - Court reporter appearance for
Colon deposition
$286.00 - Transcript of Feren deposition
(Part I)
$147.80 - Transcript of Goren deposition
$ 78.00 - Transcript of Osterich
deposition
$150.00 - Transcript of Feren deposition
(Part II)
$ 97.01 - Sheraton Tallahassee Hotel
$158.05 - Governor's Inn
$463.00 - U.S. Air (Michelson)
$567.00 - U.S. Air (Michelson)
$567.00 - U.S. Air (Feren)
Of these costs, Goren opined that air fares were excessive and should be reduced to $800 for total air fare. Thus, I find that the total costs incurred by Feren in connection with Complaint No. 91-45 as listed above are $2,593.90.
Feren incurred filing costs of $250 for filing the Petition for Writ of Mandamus in the Fourth District Court of Appeal.
Goren charged Feren $2,012.50 for services as an expert witness in connection with Ethics Compliant No. 91-45 from May 27, 1992 through December 17, 1992. His charges for services rendered after April 30, 1993, totaled
$2,225.00. These fees are based on the hourly rate of $125 and are reasonable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this proceeding, Feren is asserting the affirmative; thus, the burden of establishing the amount of costs and reasonable attorney's fees rests with Feren. See Rule 34-5.029(3), Florida Administrative Code.
As it pertains to this proceeding 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 and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the person complained against. . . .
The Commission has determined that Colon filed a complaint against Feren, a public officer, with a malicious intent to injure the reputation of Feren and that the complaint was frivolous and without basis in law or fact. Thus, the Commission has determined that Colon is liable for the costs and reasonable attorney's fees incurred by Feren.
Florida follows the "American Rule" that attorneys fees may be awarded only when authorized by statute or contract. In determining whether a person is entitled to attorney's fees for litigating the issue of the amount of the attorney's fees, the courts have looked to the plain language of the statute authorizing the fees. In State Farm Fire Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993), the Florida Supreme Court held that in interpreting Section 627.428(1), Florida Statutes (1983), fees may be awarded for litigating the entitlement to attorney's fees but not the amount of the fees. In Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 35 (Fla. 1987), the Court interpreted Section 440.34(3), Florida Statutes (1985), to allow a workers' compensation claimant to recover fees for attorney services provided in proving the claimant's entitlement to fees but did not allow fees incurred in establishing the amount of the fees. In Birth-Related N. Injury Comp. v. Carreras, 633 So.2d 1103 (Fla. 3rd DCA 1994), the Third District Court of Appeal determined that Section 766.31(1)(c), Florida Statutes (1991), authorized the payment of attorney's fees for litigating the entitlement to fees but not for litigating the amount of the fees.
Based on the analysis used by the court in State Farm v. Palma, supra, the plain language of Section 112.317(8) does not authorize fees and costs for litigating the amount of attorney's fees. Costs and fees incurred by Feren after April 30, 1993, the date the Commission issued the order of remand, relate
to the litigation of the amount of fees; thus, those costs and fees should not be considered in determining costs and fees to be awarded to Feren.
In Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), the Florida Supreme Court adopted the criteria set forth in Disciplinary Rule 2-106(6) (now renumbered 4-1.5) of the Florida Bar Code of Professional Responsibility to be used in determining reasonable attorney's fees. Criteria to be considered include:
The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal services properly.
The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
The fee customarily charged in the locality for similar services.
The amount involved and results obtained.
The time limitations imposed by the client or the circumstances.
The nature and length of the professional relationship with the client.
The experience, reputation, and ability of the lawyer or lawyers performing the services.
Whether the fee is fixed or contingent.
Based on the methodology set forth in Rowe, the number of hours reasonably spent on the proceedings through the determination of entitlement to fees and costs is 320.85 attorney hours and 32.25 paralegal hours. The reasonable hourly rate for attorney time is $125 and for paralegal time is $40. The total amount of reasonable fees for legal services incurred by Feren is
$41,396.25.
The total costs incurred by Feren in connection with the proceedings are $8,553.40 which represents $2,593.90 for transcripts, air fare and hotel accommodations and filing fees and $4,237.50 for expert witness fees for Goren.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding Respondent Steven Feren
$49,949.65 for reasonable fees and costs incurred.
DONE AND ENTERED this 27th day of June, 1994, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2458EC
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Respondent Feren's proposed findings of fact:
Respondent Feren's Proposed Findings of Fact.
Paragraphs 1-2: Accepted.
Paragraph 3: Rejected as unnecessary detail.
Paragraphs 4-28: Accepted in substance to the extent that they reflect Goren's testimony but not to the extent that they represent the amounts which should be awarded in this proceeding.
Paragraphs 29-30: Accepted in substance to the extent that they reflect Goren's testimony but not to the extent that they represent the amounts which should be awarded in this proceeding.
Paragraphs 31-32: Accepted in substance.
Paragraph 33: Accepted in substance to the extent that it reflects Goren's testimony but not to the extent that all the amounts to which Goren testified should be awarded in this proceeding.
Paragraphs 34-36: Accepted in substance.
Paragraph 37: Accepted in substance to the extent that it reflects Goren's testimony but not to the extent that it represents the costs which should be awarded in this proceeding.
Paragraph 38: Rejected as unnecessary detail.
Paragraph 39: Accepted in substance to the extent that it reflects Goren's testimony but not to the extent that it represents the amount of expert witness fees which should be awarded in this proceeding.
Paragraphs 40-43: Accepted in substance to the extent that they reflect Goren's testimony but not to the extent that they represent the amount of costs and fees which should be awarded in this proceeding.
Paragraph 44: The first sentence is accepted in substance to the extent that it reflects Goren's testimony but not to the extent that it represents the amount of expert witnesses fees which should be awarded in this proceeding. The second sentence is rejected
as not supported by the greater weight of the evidence as to the amount which should be awarded in this proceeding.
COPIES FURNISHED:
Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517
Bay Harbor Islands, Florida 33154
William R. Colon
11640 Northwest 30th Place Sunrise, Florida 33323
Bonnie Williams Executive Director
Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Phil Claypool, Esquire General Counsel
Ethics Commission
2822 Remington Green Circle, Suite 101 Post Office Drawer 15709
Tallahasee, Florida 32317-5709
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
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AGENCY FINAL ORDER
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BEFORE THE STATE OF FLORIDA
COMMISSION ON ETHICS
In re STEVEN B. FEREN, Complaint No. 1-45
DOAH Case No. 92-2458EC
Respondent. Final Order No. COE 94-46
/
FINAL ORDER AWARDING COSTS AND ATTORNEY FEES
This matter initially came before the Commission on Ethics on the Recommended Order rendered in this matter on February 5, 1993, by the Division of Administrative Hearings' (DOAH) Hearing Officer, in which he recommended that
the Commission enter a Final Order dismissing the Petition for Attorney's Fees and Costs. After reviewing the Recommended Order, the exceptions, and the record of the public hearing of the petition, and having considered the arguments of counsel of the Respondent/Petitioner, Steven B. Feren, and the arguments of the Complainant/Respondent, Bill Colon, the Commission concluded in its Order of Remand To the Division of Administrative Hearings rendered on April 30, 1993 (a copy of which is attached and incorporated herein by reference) that the Complainant/Respondent, Bill Colon, filed an ethics complaint which was frivolous and without basis in law and fact against Respondent/Petitioner, Steven B. Feren, a public officer, with a malicious intent to injure the reputation of the Respondent/Petitioner, Steven B. Feren, a public officer, with a malicious intent to injure the reputation of the Respondent/Petitioner.
However, because the Commission was unable to determine the amount of attorney's fees that Mr. Colon is liable to Mr. Feren for, the Commission remanded the case to DOAH for further evidentiary proceedings necessary to resolve all factual issues concerning the amount of reasonable attorney's fees to be awarded consistent with the methodology set forth in Florida Patient's Compensation Fund
Rowe, 472 So. 2d 1145 (Fla. 1985), including Mr. Feren's entitlement to attorney's fees incurred for the administrative hearing and subsequent thereto.
This matter again came before the Commission on the Recommended Order rendered on June 27, 1994, by the DOAH Hearing Officer (a copy of which is attached and incorporated herein by reference) from the remand of this matter. In this Recommended Order, the Hearing Officer recommends that the Commission enter a Final Order awarding Mr. Feren $49,949.65 for reasonable fees and costs incurred. Both Mr. Feren and Mr. Colon were granted an extension of time to September 1, 1994 to file their exceptions to the Recommended Order and both filed exceptions. Mr. Colon also filed a Response to Exceptions to Recommended Order by Steven B. Feren.
Having reviewed the Recommended Order, the exceptions, the record of the public hearing of this petition, and Mr. Colon's Response, and having considered the arguments of counsel for Steven B. Feren, and Bill Colon, the Commission readopts its findings, conclusions, rulings, and determinations which it made in its Order of Remand rendered on April 30, 1993, and makes the following additional findings, conclusions, rulings, and determinations.
STANDARDS FOR REVIEW
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency many not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).
Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.
Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475
So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
RULING ON COMPLAINANT/RESPONDENT'S EXCEPTIONS
Mr. Colon excepts generally to the Recommended Order and moves that the Recommended Order and presumably the Petition for Attorney's Fees and Costs be dismissed. He does not except specifically to any of the Hearing Officer's findings of fact. Mr. Colon essentially argues as follows:
The proceedings were a sham, a denial of Mr. Colon's civil rights and right to due process. In addition, in the initial proceeding, the Hearing Officer exhibited bias against Mr. Colon by stating that Mr. Colon called himself the "watchdog" of the City.
This exception if rejected. Our review of the record indicates that the proceedings and the Hearing Officer's conduct of the proceedings complied with the essential requirements of law. The purpose of the hearing conducted by the Hearing Officer on April 11, 1994 was to determine the amount of reasonable attorney's fees and costs, as also is our purpose in reviewing the Hearing Officer's June 27, 1994 Recommended Order issued as a result of that hearing, not to review our prior rulings contained in our Order of Remand. Furthermore, with respect to Mr. Colon's charge that the Hearing Officer exhibited bias against him, this same exception previously was made by Mr. Colon and rejected by this Commission in paragraph 15 of the Order of Remand. Furthermore, with respect to Mr. Colon's charge that the Hearing Officer exhibited bias against him, this same exception previously was made by Mr. Colon and rejected by this Commission in paragraph 15 of the Order of Remand. It shall not be reviewed against here. Mr. Colon's remedy for his disagreement with our rulings is judicial review pursuant to Section 120.68, Florida Statutes, of our Final Order which incorporates the Order of Remand and our rulings therein.
Steven Feren was permitted to greatly increase his costs and hours by adding those attributable to his mistakes.
Mr. Colon's exception is rejected. The Hearing Officer's recommended Findings and Conclusions with respect to the reasonable number of hours and costs expended by Mr. Feren's attorney are supported by substantial competent evidence of record. As stated by the Court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence and reach ultimate findings of fact based on competent substantial evidence. State
Beverage Department v. Ernal, Inc. 115 So. 2d 566 (Fla. 3d DCA 1959).
It is not our function to reweigh the evidence or to rewrite the Hearing Officer's findings as long as there is competent substantial evidence to support the findings, as there is here.
Mr. Feren presented the expert testimony of Mr. Goren, who Mr. Colon stipulated was an expert on the reasonableness of fees and costs in connection with this proceeding (Tr. p. 18). As an expert witness, Mr. Goren testified about the reasonableness of the hours expended in these proceedings by Mr.
Feren's attorney (Tr. p. 26 et seq.) and his testimony was accepted by the Hearing Officer. There was no competent substantial evidence presented indicating that any of the hours or costs expended by Mr. Feren's attorney were attributable to his mistakes.
Review of the record indicates that the alleged work done by Mr. Feren's attorney, which he is attempting to collect fees for, could have been performed by a first year law student or a paralegal. The expert's testimony indicating that this proceeding required "expertise beyond the normal duties of an attorney" is ludicrous, as is Mr. Feren's attorney's testimony that he was required to do extensive research.
As there is competent substantial evidence of record to support the Hearing Officer's findings regarding the reasonableness of the hours expended and fees charged, Mr. Colon's exception is rejected.
The "machinations" of Mr. Feren and his attorney indicate a pattern of behavior intended to punish Mr. Colon solely because he had the "temerity" to file a complaint. Mr. Feren's attorney demonstrated his animosity towards Mr. Colon through his threats of lawsuits.
Mr. Colon's exception is rejected. We partially addressed this same exception in paragraphs 6 and 7 of the Order of Remand. Our decision shall not be reviewed here. Additionally, contrary to Mr. Colon's contention, the Petition for Fees and Costs was not filed merely because Mr. Colon had the "temerity" to file a complaint; we concluded that it was filed because he filed an ethics complaint which was frivolous and without basis in law and fact against Mr. Feren, a public officer, which a malicious intent to injure the reputation of Mr. Feren. See Order of Remand, Conclusions of Law, paragraph 2. Whether Mr. Feren's attorney exhibits "some kind of animosity" against Mr. Colon is irrelevant in the context of these proceedings. These proceedings were held in compliance with the essential requirements of law.
Mr. Colon was denied due process and his "constitutional(ly) protected rights were ignored."
Mr. Colon's exception is rejected. From our complete review of the record of these proceedings, we conclude that these proceedings were conducted in compliance with the essential requirements of law.
Mr. Feren's attorney's conduct in these proceedings was contrary to the standards established under Rule 60Q-2.009, Florida Administrative Code.
Rule 60Q-2.009 specifically states that the standards of conduct set forth in the rule are adopted as a general but mandatory guide for all representatives appearing in an administrative proceeding except counsel subject to the disciplinary procedures of the Florida Bar. [Emphasis added.] Without making any judgments about Mr. Feren's attorney's conduct during these proceedings, we find, as set forth in the rule, that inasmuch as Mr. Feren's attorney is subject to the disciplinary procedures of the Florida Bar, Rule 60Q-2.009, F.A.C. does not apply to him. Therefore, Mr. Colon's exception is rejected, as the Hearing Officer's ruling with respect to Mr. Colon's objection regarding Mr. Feren's attorney's conduct was in compliance with the essential requirements of law.
The Hearing Officer erred by failing to make further evidentiary findings.
Mr. Colon's exception is rejected. This exception was rejected in paragraphs 7, 10, 14, 18, 20 and 24 of the Order of Remand and shall not be reviewed here. Furthermore, in our Order of Remand, we remanded this case to DOAH "for further evidentiary proceedings necessary to resolve all factual issues concerning the amount of reasonable attorney's fees to be awarded consistent with the methodology set forth in [Florida Patients' Compensation Fund v.] Rowe, [472 So. 2d 1145 (Fla. 1985)]." [Emphasis added.] The hearing which is the subject of the Recommended Order was held in compliance with the Order. The Hearing Officer did not have jurisdiction to consider any other alleged evidence of misconduct by Mr. Feren.
The Hearing Officer erred by refusing to find that Section 112.317(8), Florida Statutes, and Fla. Admin. Code Rule 34-5.029 are unconstitutional.
Mr. Colon's exception is rejected. The facial constitutionality of a statute may not be determined in an administrative hearing. Key Haven v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153, 157 (Fla. 1982). Nor may a hearing officer determine the facial constitutionality of an existing rule. Department of Environmental Regulation v. Leon County, 344 So. 2d 297 (Fla. 1st DCA 1977). The Hearing Officer's rejection of Mr. Colon's argument was correct and comported with the essential requirements of law.
These proceedings create a chilling effect on would be ethics complainants.
Mr. Colon's exception is rejected as having no merit since the very purpose of Section 112.317(8), Florida Statutes, is the chilling or deterrence of frivolous and malicious Commission complaints. Couch v. Commission on Ethics, 617 So. 2d 1119, 1127 (Fla. 5th DCA 1993). For us to adopt Mr. Colon's argument would make a mockery of Section 112.317(8) and work an absurd result by denying its application in situations arguably most deserving of its deterrent and remedial effects.
The Hearing Officer erred by failing to determine whether the Commission's legal conclusions concerning the Florida law pertaining to the right of a public official to have his agency pay for legal representation and costs was correct.
Mr. Colon's exception is rejected. The Hearing Officer did not have the authority or the jurisdiction to review the Commission's rulings set forth in paragraph 4 of the Order of Remand. The purpose of the hearing conducted by the Hearing Officer on April 11, 1994 was to determine the amount of reasonable attorney's fees that Mr. Colon is liable for, not to review the Commission's prior rulings. Mr. Colon's remedy for his disagreement with our rulings is to seek judicial review pursuant to Section 120.68, Florida Statutes, of this Final Order which incorporates our previous rulings made in our Order of Remand.
The Hearing Officer erred by failing to determine that publication is required before there can be a finding of libel, slander, and defamation, and that the filing of a confidential complaint cannot support a charge of libel, slander or defamation.
Because this proceeding had nothing to do with whether Mr. Colon libeled, slandered, or defamed Mr. Feren, Mr. Colon's exception is rejected. The issue in these proceedings is whether the sanctions of attorney's fees and costs authorized by Section 112.317(8), Florida Statutes, should be imposed against Mr. Colon for his filing of a frivolous complaint with malicious intent to injure the reputation of a public official.
The Hearing Officer erred by disregarding the United States Supreme Court decisions and State court rulings, including those concerning First Amendment issues, which Mr. Colon brought to her attention.
Mr. Colon's exception is rejected. The authorities that Mr. Colon cites are not relevant to the issue of an amount of reasonable attorney's fees to be awarded--the only issue before the Hearing Officer for her decision. Mr.
Colon's remedy relative to the other issues that he claims were wrongly decided by the Commission is to seek judicial review of them pursuant to Section 120.68, Florida Statutes.
The Commission erred by relying on a document which is a misrepresentation of the facts and untruthful and by failing to dismiss Mr. Feren's Petition for Attorney's Fees and Costs because it is supported by Mr. Feren's deposition, which contains lies, half truths, and misrepresentations of fact.
Mr. Colon's exception is rejected. This exception was previously ruled on by us in the Order of Remand, paragraphs 8, 16, and 22, and will not be reviewed here. Mr. Colon's remedy relative to matters that he believes were wrongly decided by the Commission is to seek judicial review of the Commission's Final Order pursuant to Section 120.68, Florida Statutes.
The Commission and the Hearing Officer erred by failing to comply with the procedural requirements of Section 112.317(8), Florida Statutes, and Fla. Admin. Code Rule 34-5.029.
Because these proceedings were conducted in full compliance with the essential requirements of law, Mr. Colon's exception is rejected.
RULINGS ON RESPONDENT/PETITIONER'S EXCEPTIONS
Mr. Feren excepts to paragraphs 28 and 29 of the Hearing Officer's Conclusions of Law. Mr. Feren argues that the Hearing Officer's reliance on State Farm Fire and Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993), Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351 (Fla. 1987), and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994), for the proposition that attorney's fees may not be awarded to compensate for time spent litigating the amount of attorney's fees in a proceeding brought under Section 112.317(8), Florida Statutes, is misplaced. Because we agree with Mr. Feren that these decisions do not construe Section 112.317(8), Florida Statutes, Mr. Feren's exception is granted and paragraphs 28 and 29 of the Hearing Officer's Conclusions of Law are stricken. Furthermore, paragraph 31 of the Hearing Officer's Conclusions of Law shall be modified to reflect the total number of attorney and paralegal hours reasonably spent and expected to be spent on these proceedings to bring them to a final conclusion as found by the Hearing Officer in her recommended Findings of Fact. The total number of hours then shall be multiplied by the reasonable hourly rates as found by the Hearing Officer in paragraph 5 of her recommended Findings
of Fact in order to determine the total amount of reasonable fees for legal services incurred by Mr. Feren. Therefore, Paragraph 31 is amended to read, as follows:
Based on the methodology set forth in Rowe, the number of hours reasonably spent on the proceedings is 505.35 attorney hours and
101.50 paralegal hours. The reasonable hourly rate for attorney time is $125 and for paralegal time is $40. The total amount of reasonable fees for legal services incurred by Feren is $67,228.75.
FINDINGS OF FACT
Upon review of the record before us, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and the D.O.A.H. proceedings complied with the essential requirements of law. Therefore, the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
CONCLUSIONS OF LAW
Due to what appears to be a scrivener's error, the Hearing Officer in paragraph 32 of her recommended Conclusions of Law has indicated that the total costs incurred in connection with this proceeding are $8,553.40. She noted that the costs were $2,593.90 for transcripts, air fare, hotel accommodations, $250 for filing fees, and $4,237.50 for expert witness fees. The total of these costs is $7,081.40. Therefore, paragraph 32 of the Hearing Officer's recommended Conclusions of Law shall be amended to reflect that the total costs incurred by Feren in connection with these proceedings are $7,081.40.
The conclusions of law except as modified above are approved, adopted, and incorporated herein by reference.
Accordingly, the Commission on Ethics readopts and incorporates herein its Findings of Fact, Conclusions of Law, and rulings on the parties' exceptions as set forth in its Order of Remand dated April 30, 1990 and determines that the Complainant, Bill Colon, filed an ethics complaint which was frivolous and without basis in law and fact against the Respondent, Mr. Steven B. Feren, a public officer, with a malicious intent to injure the reputation of Mr. Feren and that Mr. Colon is therefore liable for attorney fees and costs incurred, as described herein.
WHEREFORE, pursuant to Section 112.317(8), Florida Statutes, the Commission on Ethics determines that the Complainant, Bill Colon, is liable to the Respondent, Steven B. Feren, for attorney's fees and costs in the total amount of $74,310.15.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 13, 1994.
October 18, 1994 Date Rendered
R. Terry Rigsby Chairman
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE
9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc: Mr. Bill Colon, Complainant/Respondent
Mr. Stuart R. Michelson, Attorney for Respondent/Petitioner Honorable Susan B. Kirkland, Hearing Officer
Division of Administrative Hearings
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1996
BILL COLON, NOT FINAL UNTIL THE TIME EXPIRES TO FILE REHEARING MOTION,
Appellant, AND, IF FILED, DISPOSED OF.
vs. CASE NO. 94-3008
L. T. CASE NO. 91-45 STATE OF FLORIDA COMMISSION DOAH CASE NOS. 92-2458EC ON ETHICS,
Appellee,
and
CITY OF SUNRISE and STEVEN
B. FEREN,
Intervenors,
/
Opinion filed October 18, 1995
Appeal from the State of Florida Commission on Ethics. Bill Colon, Sunrise, pro se appellant.
Philip C. Claypool, General Counsel, and Peter D. Ostreich, Staff Attorney, Florida Commission on Ethics, Tallahassee, for appellee.
Stuart R. Michelson of Law Offices of Stuart R. Michelson, Bay Harbor, for intervenors.
PER CURIAM.
AFFIRMED. See Couch v. Commission on Ethics, 617 So. 2d 1119 (Fla. 5th DCA 1993).
GUNTHER, C.J. DELL and STEVENSON, JJ., concur.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT
This cause having been brought to the Court by appeal, and after due consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED dthat such further proceedings be had in said cause as may be in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.
WITNESS the Honorable Bobby W. Gunther, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court of West Palm Beach, Florida on this day.
DATE: November 28, 1995
CASE NO.: 94-3008
COUNTY OF ORIGIN: State of Florida Commission on Ethics
T.C. CASE NO.: 91-45; DOAH Case Nos. 95-6181FE; 92-2458EC STYLE: Colon v. State of Florida Commission on Ethics
Marilyn Beuttenmuller, Clerk District Court of Appeal Fourth District
ORIGINAL TO: State, Division of Administrative Hearings
cc: Bill Colon
Philip C. Claypool Stuart R. Michelson
================================================================= DISTRICT COURT ORDER REMANDING FOR ATTORNEY'S FEES
DOAH FEES CASE NUMBER 95-6181FE ESTABLISHED
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1996
BILL COLON, NOT FINAL UNTIL THE TIME EXPIRES TO FILE REHEARING MOTION,
Appellant(s), AND, IF FILED, DISPOSED OF.
vs. CASE NO. 94-3008
L. T. CASE NO. 91-45 STATE OF FLORIDA COMMISSION DOAH CASE NO. 92-2458EC ON ETHICS, 95-6181FE
Appellee(s).
October 18, 1995
/
BY ORDER OF THE COURT:
ORDERED that the motion for attorneys' fees filed by Stuart, counsel for appellees, is hereby granted, and pursuant to Fla. R. App. P. 9.400(b), upon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Fla. R. App.
P. 9.400(c). If a motion for rehearing is filed in this court, then services rendered in connection therewith, including but not limited to preparation of a responsive pleading, shall be taken into account in computing the amount of the fee; further,
ORDERED that appellant's September 28, 1995, motion for clarification is hereby stricken as unauthorized argument.
I hereby certify the foregoing is a true copy of the original court order
MARILYN BEUTTENMULLER CLERK
cc: Bill Colon
Commission on Ethics Philip C. Claypool
| Issue Date | Proceedings |
|---|---|
| Dec. 18, 1995 | BY ORDER of THE COURT (Motion for attorneys` fees filed by Stuart is granted) filed. |
| Dec. 18, 1995 | Fourth DCA Opinion and Mandate filed. |
| Oct. 19, 1994 | Final Order Awarding Costs and Attorneys Fees filed. |
| Jun. 27, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 04/11/94. |
| Jun. 06, 1994 | Letter to SBK from Bill Colon (re: statement) filed. |
| Jun. 06, 1994 | Letter to SBK from Bill Colon (re: statement) filed. |
| Jun. 01, 1994 | Letter to SBK from S. Michelson (RE: response to letter of Mr. Colon's sent on May 26, 1994) filed. |
| May 31, 1994 | Letter to SBK from B. Colon (RE: facts of hearing) filed. |
| May 31, 1994 | (Respondent) Notice of Erratum filed. |
| May 26, 1994 | Recommended Order (unsigned, from S. Michelson) filed. |
| May 16, 1994 | (Respondent) Memorandum filed. |
| May 06, 1994 | Transcript filed. |
| Apr. 28, 1994 | (Respondent) Motion for Rehearing; Motion To Strike Expert Witness Testimony Motion To Accept Writ of Error Motion To Enforce Rule 60Q-2.009 filed. |
| Apr. 15, 1994 | Letter to S Michelson from B. Colon, CC: to SBK (no enclosures) filed. |
| Apr. 14, 1994 | (Respondent) Motion To Deny Petitioner`s Motion To Strike filed. |
| Apr. 11, 1994 | CASE STATUS: Hearing Held. |
| Apr. 04, 1994 | (Respondent) Writ of Error Coram Nobis w/Exhibits 1-7 filed. |
| Apr. 01, 1994 | (Petitioner) Motion to Strike filed. |
| Mar. 29, 1994 | (Petitioner) Motion to Quash filed. |
| Mar. 21, 1994 | Second Amended Notice of Hearing sent out. (hearing set for 04/11/94,11:00 a.m., Ft. Lauderdale) |
| Mar. 16, 1994 | Letter to SBK from Stuart R. Michelson (re: court reporter) filed. |
| Feb. 04, 1994 | Order Denying Motion for Rehearing sent out. |
| Jan. 03, 1994 | Amended Notice of Hearing sent out. (hearing set for 4/11/94; 10:00am; Ft. Lauderdale) |
| Jan. 03, 1994 | Order sent out. (re: rulings on several motions) |
| Dec. 28, 1993 | Letter to B. Colon from A. Cole sent out (Re: copy of deposition) |
| Dec. 27, 1993 | Letter to SBK from Bill Colon (re: obtaining copy of deposition) filed. |
| Dec. 15, 1993 | Notice of Telephonic Conference sent out. |
| Dec. 10, 1993 | Order Cancelling Hearing sent out. (hearing date to be rescheduled at a later date) |
| Nov. 29, 1993 | (Respondent) Motion for Rehearing; Motion for Disqualification of Hearing Officer; Motion for Postponement Until March 1994 filed. |
| Nov. 19, 1993 | Order Transferring Case sent out. |
| Nov. 15, 1993 | BY ORDER of THE COURT (Writ of Mandamus is hereby dismissed as moot) filed. |
| Nov. 12, 1993 | (Respondent) Motion to Declare Sec 34-5.029 As Unconstitutional and to Void These Proceedings AB Initio filed. |
| Nov. 04, 1993 | (Respondent) Motion in Opposition to the Petitioner`s Request That The Hearing Officer Recuse Himself filed. |
| Nov. 01, 1993 | Letter to LJS from Bill Colon (re: request for response to questions asked) filed. |
| Nov. 01, 1993 | (Petitioner) Certificate of Counsel; Motion for Disqualification of Hearing Officer; Certificate of Counsel; Affidavit in Support of Motion for Disqualification of Hearing Officer filed. |
| Oct. 21, 1993 | Respondent`s Witness List filed. |
| Oct. 18, 1993 | Notice that action may be considered moot (notice of hearing) filed. |
| Oct. 15, 1993 | BY ORDER of THE COURT filed. |
| Oct. 07, 1993 | Notice of Hearing sent out. (hearing set for 12/13/93; 9:00am; Ft. Lauderdale) |
| Oct. 06, 1993 | Order Concerning Request for Written Order sent out. |
| Sep. 30, 1993 | ACKNOWLEDGMENT of PETITION for WRIT of MANDAMUS filed. |
| Sep. 29, 1993 | Respondent Bill Colon Additional Responses in the Proceeding as Violation of His Civil Rights and Challenging the Constitutionality of Sec34. 0529 filed. |
| Sep. 27, 1993 | Respondent Bill Colon`s Recommended Order filed. |
| Sep. 27, 1993 | Respondent Bill Colon`s Response to the Affidavits Submitted by Attorney Michelson filed. |
| Sep. 24, 1993 | Affidavit of Stuart R. Michelson; Affidavit of Samuel S. Goren; Certificate of Service filed. |
| Sep. 16, 1993 | Respondent`s Response to Petitioners Memorandum to Set Matter for Hearing and Request for Written Order filed. |
| Sep. 09, 1993 | Petitioner`s Memorandum in Support of Petitioner`s Motion to Set Matter for Hearing and Request for Written Order w/(unsigned) Order on Petitioner`s Motion to Set Matter for Hearing filed. |
| Aug. 05, 1993 | Respondent`s Rebuttal to Petitioner`s Motion Which Would Limit the Hearing Officer`s Duties and Responsibility in the Remand From the Commission on Ethics and to Order Sanctions Against the Petitioner Steve Feren and |
| Jul. 29, 1993 | Petitioner`s Motion to Set Matter for Hearing filed. |
| May 27, 1993 | Respondent`s Response and Rebuttal to the Petitioner`s Response to the Order of Remand and Additional Motion to Deny the Remand and Dismiss the Entire Proceeding as Being Without Any Bases in Law filed. |
| May 21, 1993 | Petitioner`s Response to Order Reopening File and Giving Parties An Opportunity to Respond filed. |
| May 19, 1993 | (Respondent) Motion to Deny Remand and Dismiss the Petition as Being False and Fraudulent and/or Inadmissible Under the Statutes filed. |
| May 12, 1993 | Order Reopening File and Giving Parties an Opportunity to Respond sent out. (Remand) |
| Feb. 25, 1993 | Petitioner, Steven B. Feren`s Exceptions to Recommended Order filed. |
| Feb. 05, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 11/16/92. |
| Feb. 04, 1993 | (ltr form) Proposed Recommended Order filed. (From Bill Colon) |
| Feb. 02, 1993 | Letter to LJS from Stuart R. Michelson (re: Mr. Colon's PRO) filed. |
| Jan. 26, 1993 | Order Concerning Proposed Recommended Orders and Petitioner`s Closing Argument sent out. |
| Jan. 25, 1993 | Letter to LJS from Bill Colon (re: ltr of January 18, 1993 in response to ltr dated January 12, 1993 filed. |
| Jan. 22, 1993 | (CC FAX) Letter to LJS from B. Colon (re: Mr. Michelson letter of 1/18/93) filed. |
| Jan. 21, 1993 | Letter to LJS from S. Michaelson (re: Proposed Recommended Order & Closing Statement) filed. |
| Jan. 19, 1993 | Proof of Mailing w/supporting attachment filed. (From Bill Colon) |
| Jan. 15, 1993 | Letter to LJS from Bill Colon (re: PRO) filed. |
| Jan. 13, 1993 | Letter to LJS from Bill Colon (re: PRO) filed. |
| Jan. 13, 1993 | Petitioner`s Closing Argument filed. |
| Jan. 13, 1993 | Petitioner`s Closing Argument and Recommended Order filed. |
| Jan. 13, 1993 | (Petitioner`s Proposed) Recommended Order (unsigned) filed. |
| Dec. 28, 1992 | (Proposed) Recommended Order; Rebuttal to Respondents Petition to Assess Costs and Fees Against Complainant; Cover Letter to LJS from B. Colon filed. |
| Nov. 23, 1992 | Order Concerning Request for Order To Insure Petitioner [SIC] Presence at Hearing sent out. (request was disposed of during the final hearing of this matter on 11-16-92) |
| Nov. 16, 1992 | CASE STATUS: Hearing Held. |
| Nov. 13, 1992 | (Respondent) Response to Petitioner Steven B. Feren Request for Utilizing Deposition in Lieu of Petitioners Presence at Hearing; Request for Order to Insure Petitioner Presence at Hearing of 16 November 1992; Respondent`s Witness List filed. |
| Nov. 13, 1992 | Petitioner`s Witness List filed. |
| Nov. 13, 1992 | CC Petitioner`s Witness List filed. |
| Nov. 06, 1992 | (Petitioner) Amended Certificate of Service; Motion for Continuance filed. |
| Nov. 06, 1992 | Petitioner`s Withdrawal of Motion for Continuance filed. |
| Nov. 05, 1992 | Petitioner`s Withdrawal of Motion for Continuance filed. |
| Nov. 05, 1992 | (Petitioner) Motion for Continuance filed. |
| Nov. 05, 1992 | (Petitioner) Amended Certificate of Service filed. |
| Nov. 02, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Nov. 02, 1992 | (Petitioner) Notice of Taking Telephonic Deposition filed. |
| Oct. 12, 1992 | Re-Notice of Taking Deposition filed. (From Stuart R. Michelson) |
| Sep. 17, 1992 | (Petitioner) Re-Notice of Taking Deposition filed. |
| Sep. 17, 1992 | (Petitioner) Re-Notice of Taking Deposition filed. |
| Sep. 15, 1992 | (Petitioner) Re-Notice of Taking Deposition filed. |
| Sep. 10, 1992 | Letter to LJS from Bill Colon (re: notice regarding scheduling hearing) |
| Sep. 04, 1992 | (Petitioner) Re-Notice of Taking Deposition filed. |
| Sep. 04, 1992 | Petitioner`s Response to Hearing Officer`s Request for Information as to Attorney`s Fees filed. |
| Sep. 02, 1992 | Order Denying Motion for Dismissal sent out. |
| Sep. 01, 1992 | (Petitioner) Re-Notice of Taking Deposition filed. |
| Aug. 31, 1992 | Third Notice of Hearing sent out. (hearing set for 11-16-92; 9:30am;Fort Lauderdale) |
| Aug. 25, 1992 | Order Granting Motion for Continuance sent out. (Hearing cancelled) |
| Aug. 25, 1992 | Order Concerning Hearing Date and Deposition, Denying Request to Deny Further Discovery, and Denying Request for Ruling on Citations sent out. |
| Aug. 24, 1992 | (Respondent) Motion for Dismissal filed. |
| Aug. 24, 1992 | (Respondent) Motion for Continuance filed. |
| Aug. 24, 1992 | Petitioner`s Response to Motion to Continuance; Petitioner`s Reply to Respondent`s Response to Order Cancelling Abeyance of Hearing, ETC filed. |
| Aug. 13, 1992 | Second Notice of Hearing sent out. (hearing set for 10-26-92; 10:00am; Fort Lauderdale) |
| Aug. 12, 1992 | (Respondent) Response to Order Cancelling Abeyance of Hearing; Providing Parties Opportunity Input; Request to Deny Further Discovery; Request for Information Concerning Sanctions Against Attorney Stuart Michelson filed. |
| Aug. 06, 1992 | Re-Notice of Taking Deposition filed. (From Stuart R. Michelson) |
| Aug. 06, 1992 | Re-Notice of Taking Deposition filed. (From Stuart R. Michelson) |
| Aug. 05, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Aug. 04, 1992 | (Petitioner) Response to Order Cancelling Abeyance of Case and Giving Parties Opportunity for Input filed. |
| Jul. 28, 1992 | Order Cancelling Abeyance of Case and Giving Parties Opportunity for Input sent out. (Abeyance of this case is being terminated and final hearing will be scheduled; by 8-10-92 parties shall notify the undersigned of dates available for hearing in the mon |
| Jun. 25, 1992 | Petitioner`s Response to First Discovery Request and Production filed. |
| Jun. 25, 1992 | Petitioner`s Response to First Discovery Request and Production filed. |
| Jun. 23, 1992 | Order Denying Motion To Dismiss Amended Petition and Order for Sanctions sent out. (motion denied; case shall remain in abeyance until after a final order is entered in the Chapin case and the parties are informed by the undersigned of the impact of the |
| Jun. 23, 1992 | Order Denying Motions sent out. (motions denied) |
| Jun. 23, 1992 | Order Concerning Motions and Responses sent out. (if parties fail to comply with this order, any pleading not authorized by rule will be ignored) |
| Jun. 22, 1992 | Order Denying Motion To Dismiss Petitioners [SIC] Steven Feren Petition for Attorney Fees and Motion To Seek Sanctions Against The Petitioner Steven Feren and Attorney Stuart Michelson for The Malicious Filing of The Petition sent out. (motion denied) |
| Jun. 22, 1992 | Order Denying Motion To Reject Petitioners [SIC] Response of 26 May 1992 To Respondent`s Motions To Dismiss and Assess Sanctions sent out.(Motion to reject [SIC] response of 5-26-92 to Respondent`s motion to dismiss and assess sa nctions is denied) |
| Jun. 22, 1992 | Order Denying Motion To Compel, Motion for Order To Show Cause, Motion for Attorney`s Fees and Costs and Motion for Sanctions sent out. (motions denied) |
| Jun. 22, 1992 | Respondent's Response to Petitioners Response to Petitioners Resposneto First Discovery and Production Request and Request for Show CausseOrder for Proper Response by Petitioner and Second Request to Dismissthe Amended Petition and Request for Order to |
| Jun. 22, 1992 | Respondent`s Second Response to Petitioners Response to Respondent`s Motion`s; Respondent`s Second Motion to Dismiss The Amended Petition and to Request an Order to Show Cause Why the Petitioner Steven B. Feren and Attorney Stuart Michelson Should Not Be |
| Jun. 12, 1992 | Petitioner`s Reply to Respondent`s Response to Petitioner`s Motion for Order to Compel, Etc filed. |
| Jun. 11, 1992 | (Respondent) Motion to Dismiss Amended Petition and Order for Sanctions filed. |
| Jun. 05, 1992 | (Petitioner) Amended Petition for Attorney`s Fees and Costs filed. |
| Jun. 04, 1992 | (Petitioner) Amended Petition for Attorney`s Fees and Costs filed. |
| Jun. 03, 1992 | (Respondent) Motion to Dismiss Petitioners Steven Feren Petition for Attorney fees and Motion to Seek Sanctions Against the Petitioner Steven Feren and Attorney Stuart Michelson for the Malicious Filing of the Petition; Respondent s Response to Petitioner |
| Jun. 01, 1992 | (Petitioner) Motion to Compel, Motion for Order to Show Cause, Motion for Attorney`s Fees and Costs and Motion for Sanctions filed. |
| Jun. 01, 1992 | (Respondent) Motion to Reject Petitioners Response of 26 May 1992 to Respondent`s Motions to Dismiss and Assess Sanctions filed. |
| Jun. 01, 1992 | (Petitioner) Motion to Compel, Motion for Order to Show Cause, Motion for Attorney`s Fees and Costs and Motion for Sanctions filed. |
| May 29, 1992 | Order Granting Motion To Dismiss With Leave To File Amended Petition,Denying Motion To Assess Sanctions Against The Petitioner and Cancelling Final Hearing sent out. (motion to dismiss granted; motion to assess sanctions against Petitioner denied) |
| May 29, 1992 | Petitioner`s Response to Respondent`s Motion to Dismiss and Motion to Assess Sanctions Against Petitioner filed. |
| May 28, 1992 | Petitioner`s Response to Respondent`s Motion to Dismiss and Motion to Assess Sanctions Against Petitioner filed. |
| May 20, 1992 | Order Denying Motion for Appointment of Attorney sent out. (motion denied) |
| May 19, 1992 | Order Denying Motion to Deny Petitioner`s Request for Depositions sent out. |
| May 18, 1992 | Amended Notice of Taking Deposition filed. |
| May 18, 1992 | Response to Respondent`s Motion to Deny Petitioner`s Request for Depositions filed. |
| May 18, 1992 | Amended Notice of Taking Deposition filed. |
| May 18, 1992 | Response to Respondent`s Motion to Deny Petitioner`s Request for Depositions filed. |
| May 18, 1992 | (Respondent) Motion to Dismiss and to Assess Sanctions Against The Petitioner; Motion to Have the Attorney General State of Florida Provide a Defense Counsel for the Defense of the Respondent filed. |
| May 13, 1992 | CC Letter to B. J. Williams from Bill Colon (re: Complaint) w/supporting attachments; Motion to Deny Petitioners Request for Depositions; First Discovery Request and Production filed. |
| May 12, 1992 | Order Concerning Respondent`s Response sent out. |
| May 12, 1992 | Notice of Hearing sent out. (hearing set for 7-16-92; 10:00am; Fort Lauderdale) |
| May 08, 1992 | (Petitioner) Request for Production filed. |
| May 08, 1992 | Order to Respondent to serve Pleadings on Petitioner sent out. |
| May 07, 1992 | (Respondent) Motion to Deny Petitioners Request for Depositions filed. |
| May 05, 1992 | (Petitioner) Notice of Taking Deposition (2); Petitioner`s Response to Division Order filed. |
| Apr. 30, 1992 | Letter to SLS from S. Michelson (re: notice of new phone #) filed. |
| Apr. 30, 1992 | Respondent`s Response (to Notice of Assignment and Order) filed. |
| Apr. 23, 1992 | Initial Order issued. |
| Apr. 22, 1992 | Rebuttal to Respondents Petition to Assess Costs and Fees Against Complainant filed. |
| Apr. 22, 1992 | Agency referral letter; Complaint; Determination of Investigative Jurisdiction and Order to Investigate; Report of Investigation; Advocate`s Recommendation; Public Report; Respondent`s Petition for Attorney`s Fees and Costs filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 18, 1995 | Opinion | |
| Oct. 18, 1994 | Agency Final Order | |
| Apr. 30, 1993 | Remanded from the Agency | |
| Feb. 05, 1993 | Recommended Order | Attorney fees not awarded. Although complaint was frivolous and filed with malicious intent, burden of proof that fees were incurred by person complained against was not met. |
