STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: JOHN TOMLINSON, JR., CASE NO. 96-1435FE

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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 June 17, 1996, via video teleconference.

APPEARANCES

For John Tomlinson, Jr.: Stephen Marc Slepin, Esquire

Stephen Marc Slepin, P.A. 1114 East Park Avenue Tallahassee, Florida 32301

For Gene Flinn: No appearance. STATEMENT OF THE ISSUES

WHETHER John Tomlinson, Jr. is entitled to recover attorney's fees and costs against Gene Flinn, and if so, in what amount.

PRELIMINARY STATEMENT

On February 16, 1996, John Tomlinson, Jr. filed Respondent's Petition for Attorney's Fee and Cost against Gene Flinn relating to Ethics Complaint Number 95-159 which Flinn filed against Tomlinson and which the Florida Commission on Ethics dismissed for legal insufficiency. The fee case was referred to the Division of Administrative Hearings for assignment to a Hearing Officer. The final hearing was scheduled for June 5, 1996.

On May 15, 1996, Tomlinson filed a Motion/Request for Status Conference, stating that Flinn had refused to accept Tomlinson's mailings relating to discovery. A hearing on the motion was held on May 22, 1996 via telephonic conference. Staff of the Division of Administrative Hearings had advised Flinn's wife by telephone of the date and time of the hearing. Flinn did not participate in the hearing.

On May 22, 1996, Tomlinson filed a Motion to Change Venue and Request for Telephone Hearing. The motion was noticed to be heard by telephonic conference on May 29, 1996. Flinn failed to participate in the motion hearing. The motion to change venue was denied but the final hearing was continued to June 17, 1996 to be heard by videoteleconference. Notice of the rescheduling of the hearing was sent to the parties. Additionally, staff from the Division of Administrative Hearings advised Flinn by telephone of the rescheduling of the final hearing. Mailings from the Division to Flinn have been returned as unclaimed or refused.

The final hearing was held on June 17, 1996, and Flinn failed to appear.

Tomlinson's Exhibits 1-12, including the deposition of Tomlinson, were admitted in evidence. Tomlinson waived the filing of a proposed recommended order.

FINDINGS OF FACT

1. Gene Flinn (Flinn), filed Complaint Number 95-156 dated October 31, 1995, with the Commission on Ethics against John G. Tomlinson, Jr., (Tomlinson) alleging that Tomlinson committed the following unlawful acts:

   
   

   1. Advising or instructing his attorney to suborn perjury by denying to the Executive Director and Chairman of the Ethics Commission the existence of Rose Upton.

      
      

   2. Advising or instructing his attorney to certify false and misleading information to the Ethics Commission concerning himself and Rose Upton with the intent to influence the

      Supreme Court in Flinn's disbarment proceedings.

      
      

   3. Conspiring to or participating in the act of tampering with jurors in the 1991 trial of Flinn v. Shields.

      
      

   4. Forwarding misstatements concerning the Shield litigation to clerks of the Florida Supreme Court to effect Flinn's disbarment and to foreclose appeals.

      
      

   5. Advising or instructing his attorney to falsely inform the Ethics Commission concerning the status of law enforcement investigations being conducted of Flinn.

      
      

   6. Committing acts in violation of federal and state racketeering laws by providing false information to other Judges of Compensation Claims, resulting in loss of fees and costs to Flinn.

      
      

   7. Filing a fraudulent application with the Governor for reappointment.

      
      

2. On January 8, 1996, Bonnie Williams, Executive Director of the Commission on Ethics, filed a Recommendation of Legal Insufficiency with the Commission, recommending that the Commission dismiss Complaint Number 95-156 without investigation as legally insufficient.

   
   

3. On January 25, 1996, the Commission entered a Public Report and Order Dismissing Complaint, dismissing Complaint Number 95-156 for failure to constitute a legally sufficient complaint. The order stated, "No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the Complaint."

   
   

4. The unrebutted testimony of Tomlinson is that the allegations in the Complaint are false. Based on the testimony of Tomlinson and the case, The

   Florida Bar v. Flinn, 575 So.2d 634 (Fla. 1991), I find that Flinn filed Complaint Number 95-156 with a reckless disregard for whether the allegations in the Complaint were false.

   
   

5. The only evidence presented relating to the amount of the attorney's fee requested is Exhibit Number 9 which is a letter from Stephen Slepin (Slepin) to Tomlinson, stating that the fee for representing Tomlinson regarding Complaint Number 95-156 was $10,000 plus expenses. On December 1, 1995, Slepin did file a five-page response to the Commission on behalf of Tomlinson.

   
   

6. No evidence was presented as to the amount of time that Slepin spent in representing Tomlinson relative to Complaint Number 95-156.

   
   

7. No evidence was presented as to the nature of the actual work performed by Slepin other than the written response submitted by Slepin to the Commission. Exhibit 9 did indicate that Slepin would review the Complaint, the previous Compliant, Flinn's disbarment proceedings and Flinn's federal actions and research the applicable law. However, no evidence was presented to show what work was actually done.

   
   

8. No evidence was presented to show what the customary charge in the community is for such services.

   
   

9. No evidence was presented concerning the experience, ability, and reputation of the lawyer performing the services.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

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

    
    

    In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer

    or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the com- plainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against. If the complainant fails to pay such costs voluntarily within 30

    days following such finding and dismissal of the complaint by the commission, the commission shall forward such information to the Department of Legal Affairs, which shall bring a civil action to recover such costs.

    
    

12. Rule 34-5.0291(4), Florida Administrative Code, provides that the respondent has the burden to establish the grounds for awarding costs and attorney's fees by a preponderance of the evidence.

13. The evidence did establish that Flinn filed the Complaint with a reckless disregard of whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. It is clear that Flinn has demonstrated a pattern of filing frivolous actions against Tomlinson and other Judges of Compensation Claims. Thus, I find that Flinn filed Complaint 95-156 with a malicious intent to injure the reputation of Tomlinson.

    
    

14. In Florida Patient 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. The criteria to be considered include: (1) the time and labor required, the novelty and difficulty of the question involved and the skill requisite to perform the legal services properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or of the circumstances; (6) the nature and length of the professional relationship with the client; (7) experience, reputation and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent.

    
    

15. In order to be awarded attorney's fees pursuant to Section 112.317(8), Florida Statutes, Tomlinson must establish that the fee requested is reasonable. Tomlinson has failed to produce evidence that demonstrates that the $10,000 attorney's fee is reasonable. No evidence was introduced concerning costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying John Tomlinson, Jr.'s

petition for attorney's fees.

DONE AND ENTERED this 1st day of July, 1996, 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 1st day of July, 1996.

COPIES FURNISHED:

Stephen Marc Slepin, Esquire Stephen Marc Slepin, P.A.

1114 East Park Avenue Tallahassee, Florida 32301

Gene Flinn

5100 Southwest 87th Avenue Miami, Florida 33165

Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

Bonnie Williams, Executive Director Florida Commission On Ethics

Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel Ethics Commission

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions 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.

Docket for Case No: 96-001435FE

Orders for Case No: 96-001435FE