STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. )

)

JOSEPH A. GATTI, )

)

Respondent. )

Case No. 00-4741PL

)

FINAL ORDER ON RESPONDENT’S MOTION FOR ATTORNEY FEES

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge Diane Cleavinger, held a motion hearing in this matter on March 15, 2004, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Wiley Horton, Esquire

Pennington, Bell & Dunbar, P.A. Post Office Drawer 10095 Tallahassee, Florida 32302

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Whether Respondent is entitled to attorney fees and, if so, the amount of such fees to be awarded.

PRELIMINARY STATEMENT

Respondent indicated his intention to ask for attorney fees and costs during the final hearing on the underlying licensure action in this matter. In his Proposed Recommended Order for the licensure action, filed on April 29, 2002, Respondent formally made a motion for an award of attorney fees and costs pursuant to Section 120.569(2)(e), Florida Statutes, alleging that the Amended Administrative Complaint was frivolous and filed for an improper purpose. The Recommended Order in the underlying licensure action reserved jurisdiction to award fees and costs should the parties not be able to agree on such an award. On July 16, 2002, Respondent filed a Motion for Supplemental Proceedings to Address the Issue of Attorney Fees. By order entered on January 22, 2003, a potential award of fees was limited to time spent on the licensure action, Respondent was required to file an affidavit supporting an award of fees and both parties were required to submit memoranda of law by March 14, 2003.

Prior to the motion hearing, Petitioner and Respondent filed memoranda on March 31, 2003 and March 14, 2003, respectively. For the first time Respondent alleged entitlement to an award of attorney fees based on Section 120.595, Florida Statutes. Additionally, the memoranda highlighted the need for an evidentiary hearing on Respondent’s motion.

At the hearing, Petitioner called two witnesses to testify and offered one composite exhibit into evidence. Respondent offered the affidavit of Robert E. McKee, Esquire, as to the fee amount and reasonableness of that fee. Petitioner and Respondent also agreed that the number of hours Respondent’s attorney expended in the defense of the underlying action were reasonable.

After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on April 22, 2004 and April 28, 2004, respectively. Additionally, Petitioner filed a Reply on May 10,

2004.

FINDINGS OF FACT

1. Petitioner is the agency charged with the regulation of the teaching profession pursuant to Chapter 231, Florida Statutes, and Florida Administrative Code Rule 6B-1.006.

2. This case began when C.B., then a minor and a student, made allegations to the police of sexual activity between

   Mr. Gatti and himself. The criminal investigation uncovered two other students, A.P. and M.K., who also alleged sexual misconduct by Mr. Gatti toward them. The alleged activity was reported to have occurred in Hernando, Citrus, and Orange Counties and at an out-of-state summer camp. The allegations resulted in the arrest of Mr. Gatti for lewd and lascivious acts with two students under age 16 on December 5, 1996. Based on

   those allegations and arrest, the Hernando County School Board suspended Mr. Gatti on December 5, 1996, pending further disciplinary action.

3. On December 6, 1996, the State Attorney for Hernando County filed an 11-count information, Case No. 96-1166-CF, against Mr. Gatti alleging various acts of sexual misconduct between Mr. Gatti and C.B., K.P. and M.K. Since the student names were redacted in the copies of the information received into evidence, it is difficult to tell which count pertains to which student. However, the criminal allegations involved the same facts as those in the underlying administrative licensure action and, as will be seen, were the same facts involved in administrative actions by the Hernando County School Board. Indeed all the administrative actions involving Mr. Gatti relied almost entirely on information and evidence obtained in the criminal investigation.

4. On January 16, 1997, the Department of Education opened an investigation into the allegations against Mr. Gatti and assigned the investigation to David Thomas.

5. On January 22, 1997, the Hernando County School Board suspended Mr. Gatti without pay and later filed a Bill of Particulars against him incorporating the allegations of the criminal information. On January 28, 1997, the school district filed it’s District Reporting Form with the Department of

   Education. The form listed all three alleged student victims,

   
   

   C.B. A.K. and M.K.

   
   

6. On February 13, 1997, the Board referred its suspension of Mr. Gatti without pay to The Division of Administrative Hearings. The Hernando County School Board’s case was assigned to Administrative Law Judge Suzanne Hood. The case was placed in abeyance pending completion of the criminal cases.

7. On February 28, 1997, the State Attorney for Orange County filed an information alleging one count of a lewd and lascivious act on a minor (C.B.) while on a trip to Disney World.

8. By March 11, 1997, Investigator Thomas was considering revocation of Mr. Gatti’s teaching certificate with the Department of Education (DOE). The evidence was not clear as to what investigatory steps or information had been gathered by Mr. Thomas by March 11, 1997, since Mr. Thomas did not conduct the bulk of Petitioner’s investigation of Mr. Gatti. However, in a letter to Mr. Thomas, the attorney for the School Board urged Mr. Thomas to hold off on taking statements from the involved students and to wait for the State Attorney's and Sheriff’s Departments to make their records available. After March 11, 1997, the DOE investigation does not appear to have been active until February, 1998. Also, at some point after March 11, 1997, Mr. Thomas was no longer involved with the

   investigation and Teri Crews, who performed the bulk of DOE’s investigation, took over the investigation.

9. On April 7, 1997, the State Attorney for Hernando County filed an Information, Case No. 97-344-CF-JS, alleging one count of sexual battery on a minor against Mr. Gatti. Mr. Gatti presented himself for arrest on April 8, 1997.

10. Likewise on April 24, 1997, the State Attorney for Citrus County filed an Information, Case No. 96-801-CF-A, alleging 1 count of a lewd and lascivious act on a minor. Mr. Gatti also presented himself for arrest on this charge.

11. On May 27, 1997, after three Amended Informations the earlier Hernando County criminal Case No. 96-1166-CF, against Mr. Gatti went to trial on five counts of Lewd and Lascivious acts (Counts 1, 2, 3, 5 and 6), one count of interference with lawful custody (Count 4) and one count of attempted lewd and lascivious acts (Count 7). Prior to trial, the court dismissed Counts 1, 2, 3 and 4 of the information. The State Attorney filed a nolle prosequi on Counts 6 and 7. Count 5 was heard before a jury. However, after evidence had been taken, but prior to sending the case to the jury, the judge granted the defense’s motion for a directed verdict of not guilty on Count

1. Such actions, while not necessarily conclusive, indicate a real lack of factual support for the underlying allegations.

   1. On July 11, 1997, an amended information in Case No.

      
      

      97-344-CF-JS was filed alleging three counts of sexual battery on a minor. Again, since the student names were redacted in the information, it is difficult to identify the alleged victim(s) in this criminal case. However, it is clear that the facts and student(s) involved in this criminal case were the same as those involved in the underlying case. On September 3, 1997, the State Attorney filed a nolle prosequi on all three counts of the information. Again, while not necessarily conclusive, such action indicates a real lack of factual support for the underlying allegations.

   2. On September 3, 1997, the State Attorney for Citrus County filed a nolle prosequi on the Citrus County information.

   3. On October 13, 1997, the State Attorney for Orange County filed a nolle prosequi on the Orange County information.

   4. By October 13, 1997, all criminal charges against Mr. Gatti, on which facts both the the Hernando School County Board and DOE actions relied, had been dropped or resolved in

      his favor. The evidence when viewed as a whole was insufficient to prosecute Mr. Gatti on any of the allegations made by the students involved because of either a genuine lack of evidence to support the allegations made by the students involved or evidence which demonstrated the falsity of some of the allegations. At this point the Department was on notice that

      proceeding to disciplinary action against Mr. Gatti was a real gamble at best and a frivolous action at worst. However, since only one count of the multiple allegations against Mr. Gatti had been heard by an independent tribunal it was reasonable for the Department to maintain an active stance at this point while recognizing that the case had real evidentiary problems regardless of what legal theory, i.e. criminal, employment or licensure, was used to litigate the matter.

   5. On February 9, 1998, Ms. Crews formally requested the records in the criminal cases from the Clerks of Court for Hernando, Citrus and Orange Counties.

   6. On March 20, 1998, even though all the criminal charges had been dropped, the Hernando County School Board amended its Bill of Particulars against Mr. Gatti to request termination. Later, on March 26, 1998, the Board forwarded the amended complaint to the Division of Administrative Hearings for consolidation with the earlier case.

   7. Ms. Crews’ investigation focused on allegations against Respondent which related to his licensure as a teacher. Again the investigation involved the same facts as the earlier criminal cases and the on-going, but separate administrative Case No. 97-0709, involving the Hernando County School Board’s attempt to remove Mr. Gatti as an employee.

   8. On September 10, 1998, after a two-week hearing, Judge Hood issued a Recommended Order dismissing all the charges against Respondent and reinstating him as an employee of the Hernando County School Board. Importantly, the Order found that the sexual activity alleged by the students had not occurred. Again, these were the same basic allegations and facts that were involved in the underlying licensure action.

   9. Ms. Crews conducted a semi-independent investigation of these same student allegations. Her investigation involved the same facts as the earlier cases but focused on how those allegations related to teacher licensure with the state for disciplinary purposes. Toward that end she interviewed persons having direct knowledge of the case. Prior to the probable cause hearing held in this case, Ms. Crews interviewed:

      C.B.; Mrs. B; A.P.; Mrs. P; Officer Bishop; Officer Harris; J.R.; T.D.L.; J.B.; R.S.; Helen Hale; J.S.; L.R.; S.W.; Pam

      Quinette; S.C.; C.S.; Petie O'Connor; S.L.; C.G.; A.M.; S.P.; S.K.; Sandra Nichols; Cy Wingrove; T.C.; and E.S.

      
      

   10. Ms. Crews also spoke to persons having indirect knowledge of the facts, including Detectives Baxley, Cameron, and Tisovitch of the Hernando County Sheriff’s Office.

   11. Ms. Crews was unable to speak to Jill Winski, who would not give a statement because she was currently under investigation by the Department for her role in harboring C.B. after he ran away from the RAP house.

   12. Ms. Crews attempted to speak to members of the O’Connor family, but was unable to interview M. O'Connor.

   13. All of the students maintained that the allegations of Respondent's engaging in or attempting sexual acts with them were true, although A.K. had recanted his allegations and all had made conflicting statements throughout the various investigations of these incidents. Respondent maintained his innocence. Moreover, there were independent facts discovered during the criminal investigation which demonstrated the falsity of some of the allegations made by C.B.

   14. Importantly, none of these interviews added any new information or evidence to the information, or evidence discovered during the criminal investigation or heard during the administrative hearing on this matter.

   15. After her investigation, Ms. Crews believed that:

       
       

       1. Respondent had ignored a directive from a minor’s custodial parent to stay away from the minor;

       2. Respondent, with knowledge that law enforcement officers were seeking C.B. as a runaway, did not tell officers where he was; and

       3. Respondent ignored a directive from law enforcement to stay away from C.B.

   16. However, neither the totality of the facts discovered during any of the investigations, nor the statutes or rules

       supported the Departments’s conclusions that the Respondent's actions violated any of the licensure statutes or rules.

       Likewise, given that all the information obtained in the criminal investigation was available to the Department and in light of the factual findings in the Hernando County administrative case, it was unreasonable for the Department to rely on the sole fact that the students had made allegations of misconduct against Mr. Gatti as justification for proceeding with a disciplinary action against Mr. Gatti based on the same facts, even if a different legal theory was going to be used and the burdens of proof were different in the litigation which had gone before.

   17. At the conclusion of her investigation, Ms. Crews compiled a lengthy written report, including 782 pages of supporting materials, the bulk of which was from the criminal investigations, as well as the Recommended Order prepared by Judge Hood in the Hernando County School Board case against Respondent.

   18. The written report, along with the supporting materials, was furnished to the Commissioner of Education. The supporting materials submitted to the Commissioner included a written submission by Respondent. The materials did not include the transcript or complete record of the Hernando County action.

       Therefore, the transcript of that action was not reviewed by the Commissioner of Education.

   19. After reviewing the written materials submitted by Ms. Crews, the Commissioner of Education made a finding of probable cause against Respondent. However, at this point, given the earlier criminal and administrative action, the totality of the evidence, and the lack of any new evidence, it was frivolous for the Department to proceed to license disciplinary proceedings.

   20. The Amended Administrative Complaint was filed thereafter in this case alleging the same underlying facts as the Hernando County case, which allegations had already been determined not to have occurred. The Complaint, also alleged several counts which had no factual support under any of the information the Department had before it and on which no evidence would be presented at hearing. The Amended Administrative Complaint alleged that Respondent's license should be disciplined for violating Section 231.28(1)(c) Florida Statutes (now Section 231.2615), by being guilty of gross immorality or an act involving moral turpitude (Count 1); Section 231.28(1)(f), Florida Statutes, by being guilty of personal conduct which seriously reduced his effectiveness as an employee of the School Board (Count 2); Section 231.28(1)(i), Florida Statutes, by violating the Principles of Professional

       Conduct for the Education Profession (Count 3); Section 231.28(1)(j), Florida Statutes, by violating other provisions of law which provide for revocation of Respondent's teaching certificate (Count 4); Florida Administrative Code Rule 6B- 1.006(3)(a), by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical safety (Count 5); Florida Administrative Code Rule 6B-1.006(3)(b), by restraining a student from independent action in pursuit of learning (Count 6); Florida Administrative Code Rule 6B-1.006(3)(d), by intentionally suppressing or distorting subject matter relevant to a student's academic program (Count 7); Florida Administrative Code Rule 6B-1.006(3)(e), by intentionally exposing a student to unnecessary disparagement or embarrassment (Count 8); Florida Administrative Code Rule 6B-1.006(3)(g), by discriminating against or harassing a student on the basis of race, etc. (Count 9); Florida Administrative Code Rule 6B- 1.006(3)(h), by exploiting a relationship with a student for personnel gain or advantage (Count 10); Florida Administrative Code Rule 6B-1.006(4)(a), by failing to take precautions to distinguish between personal views and those of any educational institution (Count 11); Florida Administrative Code Rule 6B- 1.006(4)(b), by intentionally distorting or misrepresenting facts concerning an educational matter (Count 12); Florida

       Administrative Code Rule 6B-1.006(5)(a), by failing to maintain honesty in all professional dealings (Count 13); Florida Administrative Code Rule 6B-1.006(5)(d), by engaging in harassing or discriminatory conduct (Count 14); and Florida Administrative Code Rule 6B-1.006(5)(f), by using coercive means or promising special treatment to influence professional judgment of colleagues (Count 15). After the hearing, Petitioner admitted that no evidence was presented on Counts 4, 6, 7, 9, 11, 12, and 13 of the Amended Administrative Complaint, involving alleged statutory violations of Section 231.28(1)(j), Florida Statutes, and rule violations of Florida Administrative Code Rule 6B-1.006(3)(b), (d), (g), (h), (4)(a), (b), and (5)(a). Counts 4, 6, 7, 9, 11, 12, and 13 were, therefore, dismissed. Remaining for decision were the counts involving moral turpitude, loss of effectiveness as an employee and rule violations involving the alleged failure to protect a student from harm, intentional exposure to disparagement or embarrassment, exploitation of a student for personnel gain, engaging in harassing or discriminatory conduct and using coercion to influence professional judgment. All the charges were based upon allegations that Respondent engaged in improper sexual activities with three male students between May 1995 and November 1996, made improper sexual remarks of a homosexual nature to them, gave gifts to one of them, showed pornographic

       pictures to a student, interfered with one student's parental relationship, did not comply with parental requests, left a class to pick a student up, and improperly interjected himself into a special education meeting involving a student.

   21. The statutes and rules cited in the Complaint state:

       
       

       231.28(1) The Education Practices Commission may suspend the teaching certificate of any person . . . ; to revoke the teaching certificate of any person . .

       .; to revoke permanently the teaching certificate of any person . . . ; or to impose any other penalty provided by law, provided it can be shown that the person:

       
       

       * * *

       
       

       (c) Has been guilty of gross immorality or an act involving moral turpitude.

       
       

       * * *

       
       

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board.

       
       

       * * *

       
       

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education Rules.

       
       

       Rule 6B-1.006(3)

       (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.

       
       

       * * *

       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

       * * *

       
       

       (h) Shall not exploit a relationship with a student for personal gain.

       
       

       * * *

       
       

       (5) Obligation to the profession of education requires the individual:

       
       

       * * *

       
       

       (d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and further shall make effort to assure that each individual is protected from such harassment or discrimination.

       
       

       * * *

       
       

       (f) Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

       
       

   22. Evidence was introduced regarding the hourly rate and fee agreement in effect between Respondent and the teacher’s union responsible for paying for the defense of Mr. Gatti, who was a member of that union. Although no written contract was introduced into evidence, the fee arrangement was a non- contingent hourly rate of $90.00 per hour plus all costs. The lower contract rate is paid by the union with the understanding

       that the successful attorney may ask for reasonable fees over and above the contract rate. In short, the parties fee agreement was for either $90.00 an hour or for a reasonable amount as set by the tribunal. Petitioner was paid the $90.00 fee but has asked for the amount of fees in excess of $90.00 that would constitute a reasonable attorney’s fee.

   23. The affidavit of Robert E. McKee was introduced reflecting and hourly rate of $200.00 per hour would be reasonable in this case. All parties accepted the affiant’s qualifications to render his opinion on reasonable attorney’s fees. No evidence contradicting Mr. Mckee’s opinion was introduced at hearing and his opinion is accepted. An hourly rate of $200.00 is reasonable in this case.

   24. The parties have agreed that the 282.25 hours expended by Respondent’s counsel in defense of this case is reasonable. Therefore, a reasonable attorney fee totaling $56,450.00, less

       $25,402.50 paid under the union contract yielding a balance of

       
       

       $31,047.50 is appropriate.

       
       

       CONCLUSIONS OF LAW

       
       

   25. Respondent raised as the basis for his fee claim two statutory provisions, §§ 120.569(2) and 120.595(1), Fla. Stat.

   26. Section 120.595 provides, in relevant part, as follows:

       (c ) In proceedings pursuant to Section 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection. In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be reputably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.

       
       

       * * *

       
       

       (e) For purposes of this subsection: . . .

       
       

       * * *

       
       

       3. “Nonprevailing adverse party” means a party that has failed to have substantially changed the outcome of the proposed or final agency action which is the subject of the proceeding.

       
       

   27. Section 120.595 is clearly intended to apply to bid protests, agency rule challenges, and similar proceedings under Section 120.57(1). The language of Section 120.595 makes clear that a state agency initiating a proceeding cannot fit the definition of a “nonprevailing adverse party.” Crist v. Pringle, 2003 WL 22532194, para. 166 (DOAH 2003); Palacios v.

       Department of Business and Professional Regulation, Case Nos. 99-4163F and 99-4164F (DOAH 2000). Thus, since the agency initiated this action, Section 120.595 does not apply and Respondent’s fee claim should be considered solely under Section 120.569(2).

   28. Section 120.569(2)(c), Florida Statutes (1997), now Section 120.569(2)(e), provides as follows:

       All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation.

       
       

   29. In this case, the pleading in question is the Amended Administrative Complaint. Respondent bears the burden of proving that, at the time Petitioner filed the Amended Administrative Complaint, no reasonable justification existed for the filing of that pleading. Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d 42 (Fla. 1st DCA 2000).

   30. Section 120.57(1)(b)5 is generally considered to be the predecessor of the fee provision found at Section 120.569(2)(c), Florida Statutes (1997), with cases construing the old section having precedential value as to the new one.

       Procacci v. Dept. of Health and Rehabilitative Services, 690 So. 2d 603 (Fla. 1st DCA 1997).

   31. A discussion of the language in Section 120.57(1)(b)5 is found in Mercedes Lighting and Electrical Supply v. State of Florida, Dept. of General Services, 560 So. 2d 272 (Fla. 1st DCA 1990). That case compared the language of Section 120.57 with Rule 11 of the Federal Rules of Civil Procedure. The Mercedes Lighting opinion noted that Rule 11 imposes three requirements on every pleading: (1) that it not be filed for an improper purpose; (2) that it possess a good faith basis in fact; and (3) that it possess a good faith basis in law. Section 120.57 only includes the prohibition on filing for an improper purpose (with a “frivolous purpose” being listed an as example of an improper purpose).

   32. The consideration of whether a pleading is filed for an improper purpose is an objective one. The actual subjective intent of the filing party is irrelevant. The focus is on what was known to the filing party at the time of the filing. Dept.

       of Heath & Rehabilitative Services v. S.G., 613 So. 2d 1380 (Fla. 1st DCA 1993).

   33. If a reasonably clear legal justification can be shown for the filing of an Administrative Complaint, improper purpose cannot be found and sanctions are inappropriate. Mercedes

       Lighting and Elec. Supply, Inc. v. Dept. of General Services, 560 So. 2d 272, 278.

   34. Mercedes Lighting defines what does not violate the statute in the following way: “[I]f a reasonably clear justification can be shown for the filing of the paper in question, improper purpose cannot be found . . . .” Mercedes

       Lighting at 278. The simple fact that Petitioner elected to pursue a licensure hearing in the wake of a failed employment hearing does not provide a basis for a fee award. Newberry v. Florida Dept. of Law Enforcement, Criminal Justice Standards and

       Training Comm’n, 585 So. 2d 500 (Fla. 3d DCA 1991); Walley v. Florida Game & Fresh Water Fish Comm’n, 501 So. 2d 671 (Fla. 1987). However, the agency simply alleging that it is proceeding under a certain provision of a statute is not enough to support a finding of clear legal reason on the part of the agency. The law does not exist in a vacuum. In any action there must be facts that could arguably support the agency's allegation that a violation of a particular law has occurred.

   35. In this case, the evidence demonstrated that there was neither a factual basis for proceeding with the underlying action nor a clear legal basis for proceeding with the underlying action. The allegations involving moral turpitude all required the Petitioner to prove sexual misconduct on the part of Respondent. By the time of the Amended Complaint, any

       underlying facts which purportedly could establish such conduct had been aired, reviewed and found not to have occurred or to be insufficient to prove such activity. There was never any evidence of personal gain by Respondent from his relationship with any of the alleged victims. The facts underlying the the allegations involving failure to follow a parental or police directive simply were not supported by any view of the evidence. The facts regarding interference with custody involved the time when C.B., between 1:00 and 3:00 am, had run away from the run- away shelter at which he was staying because his father had seriously beat him. It was undisputed that he was not in the custody of his parents, had run away on his own, and was determined to stay away from the run-away shelter, the police and his parents. Respondent’s only role in the event was to do the right thing and take C.B. to a safe place that he left the next morning. C.B. admitted Respondent did not influence his decisions regarding running or staying away from home. Clearly, under any view of these facts there was no violation of any of the statutes or rules governing teachers. The facts underlying the allegation regarding coercion of fellow teachers allegedly occurred during a heated meeting regarding the special education of C.B. The undisputed facts did not support a charge of coercion against Respondent and was well within the norm for such meetings the purpose of which is to frankly discuss the

       needs of a special education student and during which passionate debates about those needs can and often do occur. Finally, the issue regarding gifts was not supported by any legal basis or facts. It is not unlawful for a teacher to give gifts to a student. Indeed, teachers frequently give gifts to students to help those students. The only time such gift-giving might rise to the level of a violation is if the gift is given to achieve some harmful end. The undisputed facts surrounding the alleged gifts in this case demonstrated that several of the alleged gifts were not gifts at all or were given to C.B. at the behest of the people then caring for him in order to be able to contact him when he was away. In short, the facts known to Petitioner at the time it filed the Amended Administrative Complaint and the laws governing teachers’ licenses did not support the underlying licensure action, and the Complaint was therefore, frivolous. The Complaint was filed for an improper purpose and Respondent is entitled to attorney fees.

   36. When an attorney has a non-contingent fee arrangement with the client, a fee award is limited to the amount contracted for. Perez-Borroto v. Brea, 544 So. 2d 1022 (Fla. 1989); Miami Children’s Hospital v. Tamayo, 529 So. 2d 667 (Fla. 1988); Kaufman v. MacDonald, 557 So. 2d (Fla. 1990); International

       Bankers Insurance Co. v. Wegener, 548 So. 2d 683 (Fla. 3d DCA 1989); and Resolution Trust Corp. v. Hallmark Builders, Inc.,

       143 F.R.D. 277 (M.D. Fla. 1992). However, it is the fee contract which governs and if that agreement also includes an agreement that the attorney may alternatively be reimbursed as determined by the tribunal should the client prevail then an attorney may receive the amount determined to be reasonable by the tribunal. Kaufman, supra. The amount actually paid by the client is generally irrelevant to determining the amount of fees that may be due under the alternative fee provision. It is also irrelevant that the fee agreement involved a contingent or non- contingent fee. Perez-Borroto, supra. See also Resolution

       Trust, supra. Cf. Wegener, supra.

       
       

   37. In this case, unlike in Wegener, Respondent had an alternative fee agreement should he prevail at the hearing which entitles him to receive a reasonable amount of fees beyond the hourly rate of the fee agreement. Accord Resolution Trust, supra. Therefore, Respondent is entitled to a reasonable attorney fee totaling $56,450.00, less $25,402.50 paid under the union contract, yielding a balance of $31,047.50.

ORDER

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

ORDERED:

That the motion for attorney fees is granted for violating Section 120.569, Florida Statutes.

DONE AND ORDERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2004.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Wiley Horton, Esquire Pennington, Bell & Dunbar Post Office Drawer 10095 Tallahassee, Florida 32302

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

NOTICE OF JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or in the District Court of Appeal where the party resides. The notice of Appeal must be filed within 30 days of the rendition of the order to be reviewed.

Docket for Case No: 00-004741PL

Orders for Case No: 00-004741PL