Findings Of Fact The Petitioners James I. McKee and James Cone are registered physical therapists licensed in Florida under Chapter 486, Florida Statutes. Petitioners McKee and Cone are engaged in the private practice of providing physical therapy services. Physical therapy is the treatment of injured or crippled individuals through physical agents such as heat, ultrasound and electrical stimulation treatments, and therapeutic exercise. Physical therapy patients are referred to private practitioners such as Petitioners by prescription from physicians. Petitioners, as a substantial part of their practices, treat workers who have been injured in job-related accidents and receive payment for their services from workers' compensation insurance carriers. Respondent is the state agency responsible for administering the workers' compensation program in Florida. Respondent has proposed Rules 38F- 7.01 through 38F-7.03 and 38F-7.10 through 38F-7.13 for adoption. These proposed rules constitute the proposed fee schedule for the workers' compensation program, and include a proposed fee schedule for physical therapy services. The proposed fee schedule was presented to the Respondent by a three- member panel consisting of the Secretary of Labor and Employment Security, the State Insurance Commissioner, and the State Medical Consultant of the Division of Workers' Compensation. Respondent's rules have not in the past included a fee schedule for physical therapy services provided by practitioners such as Petitioners McKee and Cone. Rather, such services have been compensated on the basis of a case- by-case determination of the charges that prevail in the same community for similar treatment of injured persons of like standard of living. The proposed fee schedule would set maximum limits for such fees. The proposed fee schedule would have applicability statewide. Different fee schedules for different geographic locations have not been proposed. Petitioners McKee and Cone presently charge higher fees for injured workers and receive more compensation than they would receive under the fee schedule set out in the proposed rules. Furthermore, prevailing fees charged by physical therapists are generally higher than the maximum fees set out in the proposed rules. There is a statistically significant difference in fees for physical therapy services that are charged in different areas of the state. Fees for services in Southeast Florida are uniformly higher than fees for the same services in other areas of the state. The three-member panel which proposed the fee schedule for physical therapy services considered the present fee schedule, which does not set maximum charges for physical therapy services; a schedule utilized under the medicare program for physical therapy services; and a schedule set out in a document prepared by the Florida Medical Association, Inc., entitled "1975 Florida Relative Value Studies." No consideration was given to setting different fees in different areas of the state. The medicare schedule considered by the panel sets different rates for different areas of the state. The panel utilized a schedule in the mid-range from the medicare schedule in arriving at its proposed schedule. Respondent promulgated an economic impact statement in support of the proposed rules. The economic impact statement does not contain any estimate of the economic impact of the proposed fee schedules upon physical therapists such as Petitioners . The panel which proposed the schedules did hear objections from various physical therapists, but did not change its proposed schedule in response. The proposed schedule has a significant economic impact upon physical therapists because there has not been a maximum fee schedule applied to physical therapists in the past. Furthermore, the schedule would allow less compensation to such therapists than has typically been allowed in the past.
Findings Of Fact The Petitioner is a manager of real estate specializing in condominiums. It was incorporated in Florida on August 30, 1978, as Property Management, Inc. at the address of its attorney and registered agent, Mr. Michael L. Hyman, Suite 400, 28 W. Flagler Street, Miami, Florida 33130. The corporation was involuntarily dissolved by the Secretary of State on December 5, 1979, for failure to file its annual report and pay its annual report filing fee. Petitioner admits that it was delinquent in submitting its annual report and filing fee, but contends that it was entitled to notice of delinquency prior to involuntary dissolution and reissuance of its corporate name. Through testimony of Petitioner's president and corporate counsel's secretary, who opens and distributes incoming mail, Petitioner established that it had not received any of the three notices discussed below. Rather, Petitioner learned of the dissolution in February, 1980, when it sought telephone service. It then submitted the annual report and filing fee which were received by the Secretary of State on March 17, 1980. By that time the name Property Management, Inc. had been issued to another corporation and was not available. Petitioner was therefore reinstated as Property Management of South Florida, Inc. The following notices relevant to this proceeding were prepared by the Secretary of State: January, 1979: Notices to all Florida corporations that annual reports and filing fees were due by July 1, 1979. September 1, 1979: Reminder notices to delinquent corporations that dissolution would follow if annual reports and filing fees were not submitted within 90 days. December 5, 1979: Certificates of dissolution issued to corporations which failed to submit the reports and filing fees. The above notices were prepared from computer data and were transmitted by ordinary mail. Respondent produced a computer printout with Petitioner's correct name and address showing dissolution on December 5, 1979. However, no evidence was adduced to establish that this notice or either of the preceding notices were actually mailed to Petitioner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's request for return of the name Property Management, Inc. be DENIED. DONE and ENTERED this 29th day of July, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael L. Hyman, Esquire Suite 400 Roberts Building 28 West Flagler Street Miami, Florida 33130 William J. Gladwin, Jr., Esquire Office of the Secretary of State The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner, Richard Shambo, is the legal guardian for Linda Shambo. Linda Shambo is a "client" as defined in Section 402.33(1)(b), Florida Statutes, and has been assessed a fee in the amount of $286.00 per month by the Department. Such fee is paid by the Petitioner as the client's guardian. Petitioner manages the client's financial resources. The client resides in a group home, an intensive care level 3 facility, for which the monthly charge is $633.00. No dispute was made as to the appropriateness of that charge. The fee which has been assessed in this case is equal to the monthly charge less the client's reimbursements from other sources (e.g. Social Security benefits). The Department's Fee Collection Review Committee met on January 8, 1993 to review the fee assessed for this client. Such committee denied Petitioner's request for a reduction in fee and advised him of his right to an administrative review of that decision. The client's income over the last few years has declined due to lower interest rates. According to Petitioner, if the assessed fee is not reduced from $286 to $250 per month, the client will have insufficient income to cover the assessment. As a result, the client's principal will be reduced to cover the difference. Such testimony has been deemed credible and has not been challenged by the Department. No argument as to the appropriateness of other expenditures made on behalf of this client has been raised. Accordingly, it is found that the client's income less such appropriate expenses is insufficient to yield a disposable income sufficient to cover the fee assessed by the Department.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order granting Petitioner's request for a reduced fee. DONE AND RECOMMENDED this 29th day of March, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 29th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4617 Neither party submitted a proposed recommended order. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard E. Shambo 125 Cooper Drive Santee, South Carolina 29142 Karen M. Miller District Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401
The Issue The factual issue to be determined is the amount of attorney fees and costs due and owing to the Petitioner.
Findings Of Fact The Petitioner incurred the following costs related to the proceedings in Case No. 87-0605: Copying Charges for Office Copies of Pleadings and Papers $173.25 Court Reporter Fees for Transcript of Evidentiary Hearing held 9/9/90 510.30 Miscellaneous Postage 26.75 Copying Charges 9.80 Typing Charges 100.00 TOTAL COSTS: $820.10 The parties stipulated that a reasonable hourly rate for Mr. Traynham's services was $150.00 per hour. At the time of the final hearing in Case No. 90- 5301F, Mr. Traynham had expended 25 hours in Case No. 90-5301F. A reasonable fee for counsel for Petitioner's services in the aforementioned case is $3,750.00. The parties also stipulated that work in presentation of this case to the Commission must be considered separately. The parties did not agree to an hourly rate or number of hours for the services provided by Mr. Stafman. Based upon the records presented and the testimony of Mr. Stafman, the reasonable number of hours required to review the file and for testimony at the hearing is seven hours. The reasonable rate for Mr. Stafman's professional services based upon the value of his services in relationship to the value of the services provided by Mr. Traynham is $150.00 per hour. A reasonable total fee for Mr. Stafman's professional services was $1,050.00. Curley Doltie, Esq. was retained by the Petitioner to represent him in this proceeding on a contingency fee basis. A contingency fee basis means that Mr. Doltie would be compensated for representing the Petitioner only if the Petitioner prevailed in the litigation. The amount of the contingency fee was to be determined and awarded by the Commission. The rule regulating the Bar requires contingency fee contracts to be reduced to writing. The Petitioner was a casual client of Mr. Doltie, and their contingency fee contract was not reduced to writing and executed. Mr. Doltie is a 1979 graduate of the Law School at Florida State University and was admitted to the Bar in that year. Between May 1980 and May 1982, Mr. Doltie served as an armored officer in the United States Army. Mr. Doltie's legal experience includes working as a staff attorney for the Legal Aid Society of Orange County from October 1979 until May 1980; assistant public defender in Sanford, Florida, from May 1982 until April 1983; private practice from April 1983 until October 1984; associate general counsel with the Public Service Commission from October 1984 until January 1987; Legal Services of North Florida from January 1987 until opening a private practice in Tallahassee in September 1987. The Petitioner was one of Mr. Doltie's first clients after he opened his private practice in 1987. Mr. Doltie currently handles both contingency fee cases and cases for which he regularly bills his clients. Mr. Doltie's current billing rate is $150.00 per hour. Mr. Doltie's practice involves, primarily, administrative litigation. Mr. Doltie regularly keeps time records, which reflect the activities in which he is engaged on behalf of his client, and the time expended in pursuit of these activities. Mr. Doltie maintained time records for the activities which he performed in providing professional services to the Petitioner. In addition, Mr. Doltie expended 4.5 hours preparing for the attorney fee hearing, 1.0 hour for a prehearing conference, and 8.0 hours testifying or being available to testify at the final hearing on the matter of attorneys fees and costs. The total number of hours expended by Mr. Doltie in the fee case was 13.5 hours. Mr. Doltie's summary of professional services rendered by date, description, and time expended on the administrative proceedings before the Commission, the Division of Administrative Hearings, and the appeal of the original case to the District Court of Appeals and the Florida Supreme Court is presented in the Petitioner's Exhibit 2. Mr. Doltie withdrew his claim for the appeal. Mr. Doltie recorded his time carefully and conservatively and claimed only that time which contributed significantly to the work product. The Respondent would reduce the time allowed for the services rendered on the following dates because the explanation is insufficient or the amount of time is excessive or the activity was unnecessary: 1/5/88 C/Weaver 3/23/88 C/Weaver 5/11/88 C/Weaver; R/Case 6/7/88 C/Weaver 9/27/88 L/Carothers 4/17/90 R/Case; P/Motion for Evidentiary Hearing 4/17/90 L/Carothers 5/1/90 P/Motion To Strike Respondent's Motion To Tax Costs; R/Case; C/Weaver 5/4/90 P/Petitioner's Reply To Respondent's Response To Petitioner's Motion For Evidentiary Hearing 5/23/90 R/Case 5/24/90 R/Case; P/Notice Of Failure To Settle; Motion For Rehearing And Motion For Clarification; Memorandum of Law; Motion To Strike 6/13/90 P/Petitioner's Motion Requesting FCHR To Become A Deferral Agency For The Federal Government; R/Case; P/Motion For Seniority Pay Steps; P/Motion Requesting An Expedited Hearing On Damages 6/14/90 R/Case; P/Motion Requesting FCHR To Appeal DCA Order 6/22/90 RV/FCHR Order; C/Weaver Based upon review of the time records and consideration of the services performed, the following adjustments are made with regard to the times recorded by Mr. Doltie: 1/5/88 C/Weaver .5 2/23/88 C/Weaver .2 6/3/88 1/ R/Case; RV/DOAH Order 1.2 6/7/88 C/Weaver 1.0 The total number of hours accepted from Mr. Doltie for his services rendered before the Division of Administrative Hearings and the Commission is 121.9 hours through the initiation of the appeal to the District Court of Appeals. The total number of hours of professional services rendered provided by Mr. Doltie after this case was returned to the Commission is also itemized in the Petitioner's Exhibit 2, commencing with the services provided on 4/17/90. Of those items to which the Respondent takes exception, only the services provided on 6/13/90 and 6/14/90 were adjusted. In both instances, it was determined that the motions were unnecessary, without precedent, and the time expended thereon should be disallowed. The total number of hours of professional services rendered from 4/17/90 through 8/16/90 were 32.2 hours. The total number of hours expended by Mr. Doltie and allowed to be charged after review is 154.1 hours. Based upon a consideration of Mr. Doltie's background and experience, in comparison with the fees for professional services charged by other attorneys in the Tallahassee, a reasonable rate for his services at the time would have been $110.00 per hour. Having originally heard the case presented by Mr. Doltie and being familiar with the litigation, Mr. Doltie's professional services undoubtedly resulted in the Petitioner vindicating his civil rights and the Respondent being directed to employ the Petitioner. Although the Petitioner's initial claim was for broader relief, the Petitioner did not present evidence on many of these issues and thereby abandoned them at hearing. Based upon the results achieved, a contingency fee of one-half again the billed rate would have been reasonable; however, as stated above, the contingency fee agreement between the Petitioner and Mr. Doltie was not reduced to writing. Recovery on a contingency fee in the absence of a written contract would be precluded by the Rules Regulating the Bar. Therefore, the recovery in this matter is on a quantum meruit basis. The value of the job and benefits of employment to the Petitioner were equal to the actual dollar value of the allowable hours times $110.00 per hour for 154.1 hours and $150.00 per hour for 13.5 hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petitioner be awarded the following attorney's fees and costs: Costs: $ 820.10 Mr. Stafman: 1,050.00 Mr. Doltie: 18,976.00 Mr. Traynham: 3,750.00 Further, Mr. Traynham should receive an added fee for his presentation before the Commission to be determined by the Commission in its Final Order. DONE AND ENTERED this 21st day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1991.
The Issue The amount of attorneys' fees and costs to be awarded to Jerry Ann Winters (Petitioner) based on the Order of the Second District Court of Appeals dated November 8, 2002, and pursuant to Subsection 120.595(5), Florida Statutes (2003).
Findings Of Fact The Petitioner retained attorneys Mark F. Kelly and Robert F. McKee to represent her in an administrative proceeding challenging the proposed termination of her employment by USF and in the appeals that followed the issuance of the Final Orders by USF. Petitioner's Exhibit 1 is an invoice dated December 18, 2002, submitted to the Petitioner by her legal counsel. The invoice contains charges billed to the Petitioner for the period between January 17, 2001, and November 22, 2002. The invoice indicates a total of 339.75 hours expended on her behalf. The invoice contains duplicated entries for November 14, 2002. Discounting the duplication reduces the total hours expended to 339.50. The practice of the Petitioner's counsel is to bill in quarter-hour increments and to round up. According to the invoice, the Petitioner was billed at a rate of $275 per hour. Mark F. Kelly graduated from Vanderbilt Law School in 1976. Since then he has practiced labor and employment law in Florida before state and federal agencies and has a substantial appellate practice. He was previously awarded fees in the range of $250 approximately four years ago. Robert F. McKee graduated from Stetson University College of Law in 1979. He received a Master of Laws degree in Labor and Employment Law from Georgetown University Law Center in 1981. Since then he has practiced labor and employment law in Tampa, Florida. He was previously awarded fees in the range of $250 approximately four years ago. At the hearing, the Petitioner presented the testimony of Steven Greg Wenzel. Mr. Wenzel has practiced law in Florida for more than 30 years and is board-certified in Labor and Employment Law. He has extensive trial experience. He has previously provided expert testimony related to the reasonableness of attorneys' fees in approximately 12 cases. Mr. Wenzel is familiar with the fees charged by attorneys representing employees in employment-related cases in central Florida. Mr. Wenzel's testimony related to the experience, reputation, and ability of Petitioner's attorneys. It also indicated that they have substantial experience in the area of labor and employment law and are well-regarded by their peers. No credible evidence to the contrary was presented during the hearing. Mr. Wenzel's testimony adequately addressed the applicable factors set forth in Rule 4-1.5(b)1 of the Florida Bar's Rules of Professional Conduct to be considered in determining the reasonableness of fees. Mr. Wenzel opined that based on their knowledge and experience, the type and complexity of the case, and the aggressive nature of the litigation; a reasonable hourly rate was $290 ranging to $310. Mr. Wenzel's testimony in this regard is credited. The invoiced rate of $275 per hour is reasonable. Mr. Wenzel also opined that the quarter-hour billing practice was reasonable and, in fact, conservative related to other practices with which he was aware. Mr. Wenzel's testimony in this regard is credited. At the same time that the Petitioner was challenging the proposed employment termination, a civil case involving the Petitioner, a number of the basketball players, and USF was proceeding. In that case, different legal counsel represented the Petitioner. Review of Petitioner's Exhibit 1 indicates that the invoice includes charges related to persons and activities involved in the civil case. Neither Mr. Kelly nor Mr. McKee had any official involvement in the civil case. Mr. Kelly participated apparently unofficially in mediation efforts to resolve the pending disputes. The invoice contains daily total charges for billed activity. On some days, activity was recorded for both the administrative case and the civil case. Charges related to the civil case are not reimbursable in this proceeding. Because the invoice precludes an accurate separation of time spent on the administrative case from the civil case, all billings for dates upon which charges were incurred related to the civil case have been excluded from consideration in this Order. The charges related to conversations with John Goldsmith, who represented the Petitioner in the civil case, are excluded. These charges occurred on March 14, 2001; April 2, 2001; April 6, 2001; September 21, 2001; October 19, 2001; and May 13, 2002, and total 8.25 hours. The charges related to conversations with Jonathon Alpert, who represented the basketball players in the civil case, are excluded. The charges occurred on April 10, 2001, and April 11, 2001, and total 6.75 hours. The charge related to a conversation with Tom Gonzalez, who represented USF in the civil case, is excluded. This charge occurred on April 23, 2002, for .50 hours. The charges related to conversations with Mary Lau, who was a mediator assigned to the civil case, are excluded. These charges occurred on April 24, 2002, and May 8, 2002, and totaled 1.25 hours. The invoice includes a charge for May 15, 2002, related to a telephone conference with "Judge Scriven" regarding settlement. Judge Scriven is otherwise unidentified. The charge, for .25 hours, is excluded. The invoice includes a charge for Mr. McKee's attendance at mediation on May 16, 2002, related to the civil case, for 2.5 hours. This charge is excluded. The sum of the excluded time set forth above is 19.50 hours. Deduction of the 19.50 hours from the properly invoiced total of 339.50 results in a total of 320 hours. Based on Mr. Wenzel's testimony that the invoiced hours were reasonable given the nature and complexity of this case, it is found that the reduced level of 320 hours set forth in the invoice and directly applicable to the administrative case is a reasonable expenditure of time. The invoice also sets forth costs that were billed to the Petitioner. The invoice includes numerous routine office expenses (postage, copying, telephone, and facsimile costs) that are not properly recoverable costs in this proceeding. Other billed costs are set forth without sufficient information to determine the relationship of the cost to the administrative proceeding. A filing fee with the District Court of Appeal was billed on January 15, 2001, preceding the administrative hearing in this case. Further the billed charges include witness fees for several witnesses, only one of which testified in the administrative hearing. The invoice also includes service fees for subpoenas that appear to have been charged subsequent to the completion of the administrative hearing. Based on review of the invoice, properly recoverable costs of $307 are found. This sum includes the following items: witness fee and mileage for Paul Griffin ($7) dated April 5, 2001; service fee for subpoena for Paul Griffin ($50) dated April 11, 2001; and filing fee-clerk, District Court of Appeal ($250) dated October 5, 2001. Petitioner's Exhibit 2 is a "Retainer and Fee Agreement" executed by the Petitioner and her counsel which provides as follows: Partial contingency fee. Client will pay for services rendered at the reduced rate of $110 per hour. To compensate attorney for this reduced rate and the risk involved in undertaking a case on these terms, in addition to the $110 hourly rate, attorney will be entitled to 25% of any settlement money or judgment. In the event attorney's fees are awarded to the client by any court or tribunal and collected, attorney will be entitled to such fee (less any amount paid by client, which will be reimbursed pro rata) or the partial contingency fee, whichever is greater. Attorney requires a retainer deposit from client in the amount of $2,500, to be replenished from time-to-time as required to cover outstanding fees and costs. The Retainer and Fee Agreement is dated December 2, 2002, and the Order of the District Court of Appeal for the Second District, which granted the Petitioner's Motion for fees and costs, is dated November 8, 2002. It is unclear whether a written agreement between the Petitioner and legal counsel existed prior to the December 2, 2002, agreement.
The Issue The issue in this case is whether attorneys' fees and costs should be awarded to Respondent, Palm Beach County, and Intervenor, Richard Siemens, pursuant to Section 120.595, Florida Statutes (1997).
Findings Of Fact A. The Parties. 1. Petitioners are all individuals residing in Palm Beach County, Florida (hereinafter referred to as the "County"). 2. Respondent, the Board of County Commissioners of Palm Beach County (hereinafter referred to as the "Board"), is a political subdivision of the State of Florida and the governing body of the County. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (1997)(hereinafter referred to as the "Act"). Intervenor, Richard Siemens, resides in the County. The Subject Amendment. On September 22, 1997, the Board adopted an amendment to the its comprehensive plan by Ordinance Number 97-28 (hereinafter referred to as the "Subject Amendment"). The Subject Amendment modified the Traffic Circulation Element of the Palm Beach County Comprehensive Plan. Following a review of the Subject Amendment, the Department issued a Notice of Intent finding the Subject Amendment to be "in compliance," as defined in Section 163.3184(1), Florida Statutes (1997). Initiation of the Challenge to the Subject Amendment. On December 24, 1997, Mort Hillman, Rosa Durando, and Barry Silver, filed a Petition for Formal Administrative Hearing with the Department requesting a formal hearing pursuant to Section 163.3184(9), Florida Statutes (1997). The petition was filed by Richard Grosso, Esquire, and Mr. Silver, who is a member of The Florida Bar, as co-counsel on behalf of all Petitioners. On January 12, 1998, the petition was filed by the Department with the Division of Administrative Hearings. The Department requested that the petition be assigned to an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes (1997). The petition was designated Case No. 98-0202GM and was assigned to the undersigned. On January 12, 1998, a Petition to Intervene in this case was filed on behalf of Richard Siemens. Scheduling of the Final Hearing. On January 15, 1998, before the Petition to Intervene was ruled on, Mr. Siemens filed a Notice Demanding Expeditious Resolution of Proceeding pursuant to Section 163.3189(3), Florida Statutes (1997). Section 163.3189(3), Florida Statutes (1997), requires that proceedings initiated pursuant to Section 163.3184, Florida Statutes (1997), be scheduled for final hearing "no more than 30 days after receipt" of a demand for expeditious resolution from any party to the proceeding. At the time Mr. Siemens filed the demand for expeditious resolution, he had not yet been granted leave to intervene in this matter. On January 21, 1998, a motion hearing was conducted by telephone. Immediately before the commencement of the motion hearing, Petitioners filed a Response to Petition to Intervene and Motion for Expedited Hearing. Petitioners objected to conducting an expedited hearing but expressed no opposition in their response or during the motion hearing to Mr. Siemens' intervention in this proceeding. Therefore, Mr. Siemens was granted leave to intervene. In light of the fact that Mr. Siemens did not become party to this proceeding until January 21, 1998, the demand for expedited hearing was treated as having been received on January 21, 1998. Pursuant to Section 163.3189(3), Florida Statutes (1997), the formal hearing of this case was, therefore, required to be scheduled on or before February 20, 1998. In Petitioners' response to the notice of demand, Mr. Silver objected to the demand for expedited hearing of this matter and asserted that the case should be continued pursuant to Section 11.111, Florida Statutes (1997). Section 11.111, Florida Statutes (1997), provides for a continuance of any administrative hearing in which a member of the Florida Legislature is either an attorney representing the litigants, a party, or a witness. The continuance applies to any period of time during which committee work is required, plus one day prior and one day subsequent to the committee work, and during the fifteen days prior and subsequent to any session of the Legislature. It was pointed out in Petitioners' response to the demand for expedited hearing that Mr. Silver, who appeared as counsel for his co-Petitioners and as a Petitioner, was a member of the Florida House of Representatives. It was represented during the motion hearing that Mr. Silver was required to attend to committee work during the weeks of February 2, 1998, and February 15, 1998. It was also represented that the 1998 Legislative Session was scheduled to commence March 3, 1998. Therefore, pursuant to Section 11.111, Florida Statutes (1997), it was argued that no hearing should be scheduled during the weeks of February 2, 1998, and February 15, 1998, during the fifteen days prior to March 3, 1998, and for fifteen days after the end of the Legislative Session. Although the amount of time available to schedule an expedited hearing of this case was severely limited by Mr. Silver's schedule, it was determined that Section 11.111, Florida Statutes (1997), did not require a continuance of the hearing during the week of February 9, 1998. Therefore, in an effort to accommodate the provisions of Sections 11.111 and Section 163.3189(3), Florida Statutes (1997), the final hearing was scheduled for the week of February 9, 1998. The afternoon of February 9, 1998, was reserved to hear argument on several motions. The final hearing was scheduled to commence the morning of February 10, 1998, only a little more than a month after the petition initiating this matter was filed with the Department. The final hearing was scheduled for the week of February 9, 1998, over objections of Petitioners and counsel for Petitioners, Mr. Grosso, who was scheduled to appear at another administrative hearing also scheduled for the week of February 10, 1998. Preparation of the Petitioner and for the Final Hearing. Petitioners have no training in land use planning. Mr. Hillman is a retired musician. Ms. Durando is also retired, having formally managed race horses. Mr. Silver is a sole practitioner and State legislator. None of Petitioners are particularly knowledgeable about the Act or the terms "in compliance." While Petitioners did not conduct an extensive investigation prior to filing their petition in this case, they retained legal counsel and relied upon counsel to prepare their petition. After the petition was filed, there was little time for investigation by Petitioners or counsel. In light of the fact that the parties were not put on notice until January 21, 1998, that the final hearing was to commence on February 10, 1998, the parties had only 12 working days to prepare for the final hearing. Mr. Silver was involved with legislative committee meetings for 5 of those days. Mr. Grosso was involved in preparation for other litigation before the Division of Administrative Hearings schedule for the same week. During the time prior to the commencement of the final hearing, there were numerous discovery requests which had to be responded to on an expedited basis, several motions had to be responded to, and a prehearing stipulation had to be prepared. Based upon the lack of time between the scheduling of the final hearing and the commencement of the final hearing, Petitioners did not have an adequate amount of time to prepare their case for final hearing. Because of the short period of preparation time, little discovery was conducted by the parties. To the extent that limited discovery was inadequate to prepare the parties for the final resolution of this matter, there simply was insufficient time for further discovery. On February 2 and 3, 1998, only a week before the commencement of the final hearing, the depositions of Petitioners and Lance deHaven-Smith were taken by Intervenors. Mr. deHaven-Smith was designated by Petitioners as an expert witness on planning issues. Mr. deHaven-Smith's deposition consists of almost 160 pages of testimony. Among other things, Mr. deHaven-Smith was asked the following question by counsel for Mr. Siemens and gave the following response: Q . . . . Is it your opinion that this issue of whether the County should or should not apply the CRALLS with respect to this 2.3 mile section of Clint Moore Road, in consideration of these issues that you and I have talked about relating to schools, and traffic and those kinds of things, is it your position that it is not even fairly debatable as to whether that decision is consistent with the policies and goals of the Comprehensive Plan of Palm Beach County relating to the agricultural reserve area? A I don't think it is fairly debatable. I can understand if you are looking at the trade-off between the developments, and the 900, versus 500. And you could see how somebody could easily get sucked in to wanting to make those trade- offs. But you have got a plan that is committing you to not only the agriculture reserve area, but the effort to keep traffic down off of that particular road. And I have not understood it. Now, maybe there is a reason that you could apply this sort of temporary concurrency exception beyond three years, but my understanding of the law is that you are limited to three years. Page 65, lines 19 to 25 and page 66, lines 1-22. Despite the foregoing opinion, Mr. deHaven-Smith also testified extensively about his concerns about the Subject Amendment. The Final Hearing. On the afternoon of February 9, 1998, a hearing was conducted on outstanding motions. The formal hearing commenced on February 10, 1998, and continued through February 11, 1999. During the final hearing Petitioners presented the testimony of Frank Duke, Terry Hess, and George T. Webb. Petitioners offered eight exhibits. Mr. Duke and Mr. Webb are employees of the County. Mr. Duke and Mr. Webb offered testimony concerning the impact of the Subject Amendment. Mr. Hess is an employee of the Treasure Coast Regional Planning Council. Mr. Hess had previously recommended to the Treasure Coast Regional Planning Council that the Subject Amendment be found consistent with the regional plan. While Mr. Hess attempted to testify about concerns he had with the Subject Amendment during the Final Hearing, he ultimately testified that the Subject Amendment was, indeed, consistent with the regional plan. Petitioners did not call Mr. deHaven-Smith or any other expert planner who specifically testified that the Subject Amendment is not "fairly debatable." There were, however, only 7 days following the taking of Mr. deHaven-Smith's deposition and the commencement of the final hearing, giving Petitioners little time to explore the possibility of finding another expert planner. Ultimately there was no direct testimony that it was not fairly debatable that the Subject Amendment is "in compliance." While that issue was the ultimate issue to be decided in this case, nothing about this case required that such an opinion be given at the final hearing in order for Petitioners to have succeeded. Ultimately the resolution of this case turned less on the testimony at final hearing and more on a comparison of the language of the Subject Amendment with the relevant local, regional, and state plans and the Act. Had Petitioners' view of this case been correct, it could have been concluded that it was not fairly debatable that the Subject Amendment was in compliance without any witnesses rendering such an opinion. When all the evidence in this case was weighed, it was apparent that Petitioners' arguments were without merit. It might even be concluded that Petitioners' arguments were frivolous but for two things: (a) the lack of time afforded by the Act to Petitioners to prepare for the final hearing; and (b) the somewhat unique factual circumstances of this case. The unique factual circumstances of this case were that the success of Mr. Siemens' proposed development, which was the catalyst for the Subject Amendment, depended on a provision of the County's plan authorizing CRALLS designations, a designation that would likely not be found "in compliance" with the Act if subject to review today, and the fact that the proposed development was vested and, therefore, not subject to all of the clear prohibition of the County's plan against such developments in the agricultural area Mr. Siemens' property is located in. The Recommended and Final Orders. On April 17, 1998, a Recommended Order was entered in this case after consideration of proposed orders filed by the parties. It was determined that Petitioners had failed to meet their burden of proving that the determination that the Subject Amendment was "in compliance" was not "fairly debatable." It was, therefore, recommended that the Subject Amendment be found "in compliance" under the Act. Petitioners filed "exceptions" to the Recommended Order with the Department. On May 20, 1998, a Final Order was entered in this case. The Department accepted the recommendation of the Recommended Order to find the Subject Amendment to be "in compliance." The Final Order of the Department was subsequently appealed. As a result of the Final Order, the County and Mr. Siemens both are "prevailing parties" and Petitioners are "nonprevailing adverse parties" in this matter. The County/Siemens' Motion for Fees. The County and Mr. Siemens filed the County/Siemens' Motion for Fees on March 16, 1998. The County and Mr. Siemens requested an award of attorneys' fees and costs from Petitioners pursuant to Sections 120.569(2), 120.595(1)(b) and (c), and 163.3184(12), Florida Statutes (1997). The County/Siemens' Motion for Fees was filed after the final hearing in this case but before the Recommended Order was filed. Subsequent to the taking of Mr. deHaven-Smith's deposition and prior to the commencement of the final hearing in this case, Mr. Siemens put Petitioners on notice that he intended to seek an award of attorneys' fees and costs from Petitioners. An award pursuant to Section 120.595(1)(b), Florida Statutes (1997), may be made in a final order entered by the Department only after an administrative law judge finds that the nonprevailing party in a case "participated" in the case for an "improper purpose." I. Petitioners did not Participate in this Proceeding for an Improper Purpose. Pursuant to Section 163.3184, Florida Statutes, Petitioners had the burden of proving that it was not "fairly debatable" that the Subject Amendment was "in compliance." This burden of proof was a substantial one. Looking at the proceeding as a whole, from the filing of the petition to the final hearing of this case, and taking into account the lack of time allowed Petitioners to prepare for the final hearing and the unique factual circumstances of this case, the evidence failed to prove that Petitioners participated in this matter for an "improper purpose."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a supplemental Final Order denying Palm Beach County and Siemens' Joint Motion for Attorneys' Fees and Costs pursuant to Section 120.595, Florida Statutes (1997). DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 2nd day of April, 1999. COPIES FURNISHED: Richard Grosso, Esquire Post Office Box 19630 Plantation, Florida 33318 Barry M. Silver, Esquire Corporate Centre, Suite 308 7777 Glades Road Boca Raton, Florida 33434-4194 Barbara Alterman, Esquire Robert Banks, Esquire Assistant County Attorneys Post Office Box 1989 West Palm Beach, Florida 33401 Shaw Stiller, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 C. Gary Williams, Esquire Stephen C. Emmanuel, Esquire Ausley and McMullen Post Office Box 391 Tallahassee, Florida 32302 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jim Robinson, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue Whether Keith Jackson, Ph.D. ("Petitioner") should be required to pay FAMU's claimed overpayment of salary as calculated in the amount of $29,141.57, for the pay periods between July 11, 2008 and December 12, 2008.
Findings Of Fact On or about July 1, 2005, Petitioner executed an employment contract with FAMU to serve as Vice President for Research. The contract executed by Petitioner provides that Petitioner "is subject to the Constitution and Laws of the State of Florida and the United States and the rules, policies, guidelines and procedures of the Board of Governors and the University as now existing or hereafter promulgated." On July 11, 2008, Petitioner submitted to the University a letter advising that he was resigning from his administrative position with the University as the Vice President for Research. Petitioner's letter of resignation was accepted by the University effective July 11, 2008. Tenure as a faculty member was granted to Petitioner by the University on May 25, 2007. 12 When Petitioner resigned from his administrative position on July 11, 2008, he was a tenured faculty member at the University. FAMU BOT Policy 2005-15, adopted June 30, 2005 and revised on February 12, 2008, requires that the salary for former administrators, such as Petitioner, be adjusted to "the median salary of the employees within the same professorial rank and discipline." On July 11, 2008, Petitioner's annual salary, based on his service as Vice President for Research, was $166,400.00. According to FAMU BOT Policy 2005-15, his salary, upon resignation from his administrative position as Vice President for Research and movement to his faculty position, should have been adjusted to $72,662.00 in that this amount reflected, at the time, the median salary of employees within Petitioner's rank and discipline. Due to administrative oversight, Petitioner, after the effective date of his resignation, continued to receive his full administrative salary of $166,400.00. Petitioner's salary was adjusted to the correct amount beginning with the biweekly pay period of December 12, 2008. Petitioner was erroneously paid his salary of $166,400.00 from July 11, 2008 through the biweekly pay period of December 12, 2008. This resulted in Petitioner receiving a salary overpayment in the amount of $29,141.27. Petitioner has not refunded any money to FAMU.
Conclusions This matter is now before Florida Agricultural and Mechanical University Board of Trustees ("FAMU," "Respondent," or the "University") for final agency action.
Other Judicial Opinions This Order Constitutes Final Agency Action. 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 an original Notice of Administrative Appeal with the Agency Clerk of Florida Agricultural and Mechanical University, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and 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 filing fees prescribed by law, with the First District Court of Appeal. The Notice of Administrative Appeal must be filed within thirty (30) days of the date this Final Order is rendered. Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, FAMU General Counsel Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources Robert E. Larkin, Ill, Esq. Jacqueline Lester, Associate Director of Payroll Claudio Llado, DOAH Clerk 16
