STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A formal hearing was held in this case before Administrative Law Judge Eleanor M. Hunter of the Division of Administrative Hearings, on September 24, 2009, and on

October 15, 2009, at video teleconferencing sites in Fort Pierce and Tallahassee, Florida.

APPEARANCES

For Petitioner: Richard E. Coates, Esquire

200 West College Avenue, Suite 311B Tallahassee, Florida 32301

For Respondent: Patrick Farrell, Esquire

c/o J. Curtis Boyd

120 Orange Avenue

Fort Pierce, Florida 34950 STATEMENT OF THE ISSUE

The issue is whether Respondent should be required to pay attorney's fees and costs to Petitioner to compensate her for

the defense of an ethics complaint Respondent filed against her with the Florida Commission on Ethics.

PRELIMINARY STATEMENT

On June 23, 2009, Respondent filed Ethics Commission Complaint No. 09-087 and a two-page letter with the Florida Commission on Ethics ("Commission"). The letter addressed certain actions taken by Petitioner in her position as a Fort Pierce City Commissioner. At its meeting on July 24, 2009, the Commission dismissed the complaint for lacking legal sufficiency.

In a letter dated August 25, 2009, the Commission referred the case to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a hearing on Petitioner's Petition for Costs and Attorney's Fees.

Initially set for September 24, 2009, the hearing was convened but continued, at the request of the Respondent because the Commission inadvertently failed to obtain the services of a court reporter. The final hearing was concluded on October 15, 2009.

At the hearing, Petitioner presented the testimony of the Respondent and Petitioner's Exhibits 1, 2, and 3, which were received into evidence. Respondent presented no witnesses or exhibits, based on a ruling on the inadmissibility of

Petitioner's proffered Exhibit 4. No transcript of the hearing was ordered, and no proposed orders were requested or offered.

FINDINGS OF FACT

1. Respondent J. Curtis Boyd ("Respondent" or "Mr. Boyd") owns property located at 111 Boston Avenue, Fort Pierce, Florida, that he bought in 2002 or 2003. The house on the property was once owned by the late Florida Governor Dan McCarty.

2. Mr. Boyd testified that he has been offered $650,000 to sell the property with the house on it and $1.2 million to sell the land without the house.

3. Mr. Boyd requested and received permission to demolish the house by a 5-to-1 vote of the Historic Preservation Board. That decision was apparently revoked by vote of the City Commission, including that of Petitioner Christine Coke ("Petitioner" or "Ms. Coke").

4. A complaint filed by Mr. Boyd with the State Attorney accusing Ms. Coke of "misuse of authority" was dismissed on July 6, 2009.

5. Complaint No. 09-087, filed with the Florida Commission on Ethics ("Ethics Commission") on June 25, 2009, was dismissed on July 29, 2009.

6. Mr. Boyd testified that, after the vote of the Historic Preservation Board, he believed Ms. Coke found some unnamed

   person to appeal the decision to the City Commission. He also testified that, some time later, he found out that the house was not in the historic district and that he did not need permission to demolish it.

7. Mr. Boyd testified that he had overdue property taxes, but that he paid the back taxes and had the assessed value of the property reduced to lower his taxes because of the poor condition of the house.

8. The City of Fort Pierce has waived approximately

   
   

   $70,000 in code enforcement fines on the property, and offered to pay $5,000 for a design fee, but Mr. Boyd noted that the design fee will not go to him but to an architect.

9. Mr. Boyd alleges, with no supporting evidence, that the actions taken by Ms. Coke and others are intended to force him to sell the property to a friend of hers.

10. Based on Mr. Boyd's testimony it is impossible to conclude, as he alleged, that Ms. Coke persuaded some one to appeal the decision of the Historic Preservation Board to the City Commission.

11. There is also no evidence to support or refute Mr.

    
    

    Boyd's allegation that Ms. Coke was motivated by trying to force him to sell his property to a friend of hers.

12. Related to costs and fees, Petitioner's counsel proffered an affidavit of an attorney, filed with the Division

    of Administrative Hearings on September 23, 2009, representing that the attorney had reviewed the files of Petitioner's counsel and agreed that fees of $1,447.50 for one billing period and of

    $1,765.00 for another billing period were reasonable. In the absence of supporting testimony and after Petitioner rested her case, the objection to the admission of the affidavit as being untimely filed and unsupported hearsay was sustained.

13. There is no competent substantial evidence that Respondent either made or did not make a complaint against Petitioner with knowledge that the allegations were false or with reckless disregard for whether the complaint contained false allegations. There is also no competent substantial evidence of the amount of fees and costs incurred by Petitioner.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. and Fla. Admn. Code R. 34- 5.092

15. Section 112.317(7), Florida Statutes (2009) provides as follows:

    112.317. Penalties

    
    

    (7) 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 allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of costs and fees. If the complainant fails to pay such costs and fees complaint fails to pay such costs and fees voluntarily within

    30 days following such findings by the commission, the commission shall forward such information to the Department of Legal Affairs, which shall bring a civil action in a court of competent jurisdiction to recover the amount of such costs and fees awarded by the commission.

    
    

16. Florida Administrative Code Rule 34-5.0291 also provides as follows:

    34-5.0291 Award of Attorney's Fees.

    
    

    1. If 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 the Code of Ethics, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of costs and fees.

       
       

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       (4) The respondent has the burden of proving the grounds for an award of costs and attorney's fees.

       
       

17. Petitioner [Respondent before the Commission] has the burden of proof by a preponderance of the evidence in this proceeding. Fla. Admn. Code R. 34-5.0291(4), and § 120.57(l)(j), Fla. Stat. (2009).

18. Petitioner must prove, by establishing the elements in Section 112.317(7), Florida Statutes (2009), that she is entitled to costs and attorney's fees.

19. Petitioner failed to provide competent substantial evidence of her entitlement to fees and costs, and of the amount that has been incurred in fees and costs. See Florida Patient's

Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990).

RECOMMENDATION

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

Recommended that the Florida Commission on Ethics dismiss the Petition for Attorney's Fees and Costs filed by Christine Coke.

DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009.

COPIES FURNISHED:

Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Richard E. Coates, Esquire

200 West College Avenue, Suite 311B Tallahassee, Florida 32301

Patrick Farrell, Esquire c/o J. Curtis Boyd

120 Orange Avenue

Fort Pierce, Florida 34950

Philip C. Claypool, Esquire

Executive Director and General Counsel Florida Commission on Ethics

3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709

James Peterson, Esquire Linzie Bogan, Esquire Advocates for the Commission

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 09-004672F

Orders for Case No: 09-004672F