The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to section 112.3173, Florida Statutes, when he pled guilty to conspiracy to commit honest services fraud in violation of title 18, United States Code, section 371.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with governing, managing, and administering the FRS on behalf of the Florida Department of Management Services. Newell was first elected to a four-year term as Palm Beach County Commissioner representing District 3 in 1992 and he was reelected in 1996, 2000, and 2004. By reason of his employment, Newell was enrolled in the FRS because the Palm Beach County Board of County Commissioners is a FRS-participating employer. On or about November 20, 1996; November 21, 2000; and November 17, 2004, Newell executed oaths of office and swore to uphold the Constitutions and Governments of the United States of America and State of Florida pursuant to article II, section 5(b), Constitution of Florida. On July 17, 2007, Newell notified then-Governor Charlie Crist by letter of his resignation from his position as County Commissioner effective the same day. The letter stated: As an elected official, I fully understand my fiduciary relationship to the public. I also understand how I breached that relationship. I take full responsibility for my conduct. It is my intention to cooperate with the Federal Government, and, in the coming weeks, I intend to plead guilty to a criminal offense. On or about July 23, 2007, Newell voluntarily signed a Statement of Uncontested Facts detailing his actions regarding his pending federal criminal prosecution. On or about August 9, 2007, after Newell was advised of the nature of the charge(s) and accusations of conspiracy against him, he waived, in open court, prosecution by indictment and consented to proceeding by information. That same day, Newell was charged, by Information, in the United States District Court, Southern District of Florida, in case number 9:07-cr-80212, with a single count, two-object conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371. The first object charged Newell with conspiring to commit honest services fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1346. The second object charged Newell with conspiring to file a false federal income tax return for calendar year 2004, in violation of 26 U.S.C. § 7206(1). At all times relevant to the Information, Newell served as a Palm Beach County Commissioner. On or about September 11, 2007, pursuant to a written Plea Agreement, Newell pled guilty to the single count, two- object conspiracy alleged in the Information, wherein he agreed to the facts the government outlined as a basis for the charge against him for the plea of guilty. He was adjudicated guilty. The Information detailed the scheme and alleged in relevant part, the following: * * * Beginning as early as in or around January 2002 and continuing through in or around May 2006, defendant WARREN H. NEWELL, kept his personal motor vessel at PBYC [Palm Beach Yacht Center] at a 50% reduced dockage rate. From in or around January 2002 and continuing through in or around May 2006 defendant WARREN H. NEWELL paid only a very small portion of his expenses with PBYC, accumulating a debt of approximately $48,092. As early as in or around March 2004, defendant WARREN H. NEWELL publicly advocated for a bond resolution securing public funds to preserve waterfront access for the people of Palm Beach County. * * * In November 2004, the citizens voted for the issuance of the $50,000,000 bond to preserve their access to, and the preservation of, waterfront properties. The bond gave the discretion to the BCC to find suitable public and private investment on behalf of the citizens to achieve those goals. With regard to private investment, the bond required the passing of a real property interest to the public to make the bond award valid. Defendant WARREN H. NEWELL advocated on numerous occasions, both in public and to PREM [Property and Real Estate Management for Palm Beach County], for the PBYC to receive a substantial portion of the waterfront bond money to purchase partial development rights for the citizens of Palm Beach County. The purchase of development rights is not a recognized interest in real property. * * * 50. After PBYC received $14,000,000 in waterfront bond monies in or around March 2006, defendant WARREN H. NEWELL agreed with L.B.B. and K.D.S. to create a false and fraudulent SFRN [SFRN, Inc.] invoice to PBYC which was designed and intended to create an appearance that defendant NEWELL, paid his outstanding PBYC bill, however, in actuality he paid PBYC with monies generated from the fraudulent invoice and paid PBYC with PBYC’s monies. * * * 64. It was the object of the scheme to defraud to unjustly enrich defendant WARREN H. NEWELL and others by having defendant NEWELL use his public position to advance ventures and relationships in which he had concealed financial interest and to continue to conceal those financial interest and relationships. * * * Defendant WARREN H. NEWELL used his elected position to advocate the payment of $14 million of taxpayer monies to his business partner and benefactor, L.B.B. without disclosing his true financial relationship with L.B.B., and his significant financial debt to L.B.B. and the PBYC. After the PBYC and L.B.B. received $14 million from the BCC, in order to avoid the true appearance of a $40,000 kickback debt forgiveness for his motor vessel from the PBYC, defendant WARREN H. NEWELL used his financial relationship with K.D.S. and L.B.B. to cause the issuance of a bogus invoice to PBYC from SFRN. PBYC’s payment to SFRN on that fraudulent invoice was immediately disbursed by K.D.S. to defendant NEWELL as a “bonus,” and defendant NEWELL subsequently used most of that “bonus” to make a substantial payment on his PBYC debt. On or about November 20, 2007, the federal court adopted and amended Newell’s plea agreement to which the parties had agreed to the amended terms. Newell pled guilty and entered an amended plea agreement with the United States to the offense of conspiracy to commit honest services fraud in violation of 18 U.S.C. § 371. In the amended plea agreement, the United States dismissed the second object of the conspiracy relating to filing a false income tax return. On or about January 11, 2008, the United States District Court adjudicated Newell guilty and sentenced him to the United States Bureau of Prisons for 60 months imprisonment, two years of supervised release, and payment of a $100.00 special assessment. Newell also forfeited $135,000.00. In May 2009, the United States moved the court to reduce Defendant’s sentence based on substantial assistance he provided to the Government. As a result, Newell’s sentence of imprisonment was reduced and amended to a term of 36 months. Newell has completed his sentence and term of supervised release. Newell was notified by certified letter dated May 19, 2010, of the Division’s proposed action to forfeit his FRS rights and benefits pursuant to the Florida Constitution, article II, section 8(d), and sections 112.3173 and 121.091(5), Florida Statutes. The notice provided the following basis for the proposed action: as a result of your guilty plea in the United States District Court for the Southern District of Florida for acts committed in connection with your employment with the Palm Beach County Board of County Commissioners. Specifically, on or about July 23, 2007, in Case Number 9:07-cr-80121, you pled guilty to one count of conspiracy to commit honest services fraud, in violation of 18 U.S.C. § 371. On or about January 11, 2008, you were adjudicated guilty of this crime. By Petition dated June 4, 2010, Newell contested the notice and challenged the forfeiture. Newell is not retired from the FRS and is not receiving FRS retirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner pled guilty to a crime which requires forfeiture of his FRS rights and benefits pursuant to section 112.3173. DONE AND ENTERED this 28th day of March, 2014, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 28th day of March, 2014.
Findings Of Fact At all times relevant hereto, respondent, Larry C. Abramson, held real estate salesman license number 00400601 issued by petitioner, Department of Professional Regulation, Division of Real Estate. He currently resides at 830 Southeast Fifth Terrace, Pompano Beach, Florida. On or about July 19, 1984, respondent entered into a negotiated plea of guilty to a one-count information charging a conspiracy to commit securities fraud and mail fraud arising from an insider trading scheme in violation of Title 18, United States Code, Section 371. A violation of the foregoing section carries a maximum sentence of five years and a $10,000 fine. When the violation herein occurred, Abramson was employed as a plant superintendent and manufacturing supervisory staff member for a New York financial printing concern. Documentation received in evidence concerning the charge are (a) a letter of June 15, 1984 executed by respondent and the prosecuting attorney outlining the nature of the plea and Abramson's requirement to fully cooperate with the government, (b) a news release issued by the United States Attorney outlining the guilty plea, (c) a certified copy of Abramson's docket sheet in the U. S. District Court in New York City, (d) a copy of the information filed against respondent, and (e) a certified copy of respondent's waiver of indictment and consent to information. However, respondent has not yet been sentenced by the court, and there is no evidence of record that the plea of guilty has been accepted by the court.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ORDERED this 28th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1985.
The Issue The issue to be determined is the amount of reasonable attorney's fees and costs incurred by Citrus Mining and Timber, Inc. ("CMT") in Robert A. Schweickert, Jr. v. Department of Community Affairs and Citrus Mining and Timber, Inc., Case. No. 1D10-3882 (Fla. 1st DCA 2011).
Findings Of Fact Appellate Attorney's Fees Sarah Lahlou-Amine of the law firm of Fowler White Boggs, P.A. ("Fowler") was the attorney with primary responsibility for research and drafting documents for the appeal on behalf of CMT. She prepared and filed a notice of appearance, a motion to dismiss, a motion for attorney's fees, an amended motion for attorney's fees, the answer brief, a notice of supplemental authority, a second motion for attorney's fees, and a motion for clarification. Ms. Lahlou-Amine was assisted and supervised by more senior lawyers at Fowler. The total number of hours charged by Fowler was 134.8. The total attorney's fees charged by Fowler was $39,010. Lawyers from two other law firms were employed by CMT and charged attorney's fees and costs for the appeal. The Law Office of Clark Stillwell, P.A., charged 18 hours for a total attorney's fees of $6,030. Edward de la Parte and other lawyers of the law firm of de la Parte & Gilbert, P.A., charged 24.9 hours for total attorney's fees of $5,382.50. The grand total of all the attorney hours expended for the appeal is 177.7 hours and the grand total of all fees charged to CMT for the appeal is $50,422.50. It was the opinion of CMT's expert witness, Daniel Stengle, that all of these hours and fees are reasonable. Schweickert's expert witness, Howard Heims, believes that 25 or 30 hours was all the effort that was reasonable for this appeal. The hourly rates of $225.00 to $435.00 an hour that were used by CMT's attorneys are not contested by Schweickert. The evidence established that the rates are reasonable. The dispute focused on the number of hours expended for the appeal. Heims contends that it was unreasonable for CMT to file a motion to dismiss for lack of standing, because appellate courts rarely grant such a motion and the standing issue could have been saved for CMT's answer brief. The court did not summarily deny CMT's motion to dismiss but, instead, ordered Schweickert to show cause why the motion should not be granted. The issuance of the order to show cause indicates that it is not the court's practice to deny all motions to dismiss that are filed before the briefs. Following Schweickert's response, the court still did not deny the motion to dismiss, but deferred ruling to the panel of judges that would determine the merits of the appeal. It was not unreasonable to file a motion to dismiss in this case because Schweickert's lack of standing was unusually clear. The controlling factual issue was simple--whether Schweickert made timely comments to Citrus County about the proposed comprehensive plan amendment. Furthermore, the argument made in the motion eventually prevailed. Heims also believes that it was unreasonable for CMT to file three motions for attorney's fees and costs. The motions were not identical, but filing three such motions is unusual and was not shown to be necessary or important. It was not persuasively shown that 177.7 attorney hours was reasonable for this appeal. The evidence does not establish that the attorney's fees charged by the law firms of Clark Stillwell and de la Parte & Gilbert should be included as part of the reasonable fees for the appeal. These fees were not shown to be necessary or to contribute materially to the appeal. Rule 4-1.5 of the Rules Regulating the Florida Bar, Code of Professional Conduct, sets forth factors to be considered in determining a reasonable attorney's fee. The factors listed in rule 4-1.5(b)(1) are addressed below, in sequence: the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; The time and labor expended on the appeal was not shown to be reasonable. The questions involved were not difficult. The case was not complex. No unusual skills and expertise were required to perform the legal services. the likelihood that the acceptance of the particular employment would preclude other employment by the lawyer; CMT did not contend that this factor was applicable. the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; Reasonable hourly rates were charged, but persuasive evidence was not presented to show that the total amount of the fees charged to CMT are customary for the services that were performed. the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; Although a reversal of the Department's Final Order would have had adverse consequences for CMT, it was not shown that the situation was of an unusual nature. Furthermore, a reversal on the merits (to find the comprehensive plan amendment not in compliance) was almost impossible because no factual findings were made that supported Schweickert's claims. CMT points to the unusual result--attorney's fees awarded against a pro se litigant--as justifying the attorney's fee, but this unusual result is due to Schweickert's unusually weak case. The issues and the law applied were not unusual. the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; CMT's argument that time limitations of an usual nature existed in this matter was not persuasive. the nature and length of the professional relationship with the client; The applicability of this factor was not argued by CMT and was not demonstrated by the evidence. the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and The lawyers involved have good reputations and experience, but those attributes were not likely to have materially affected the outcome. Performing the legal services did not require unusual skills. The services were not efficiently provided. whether the fee is fixed or contingent, and if fixed as to amount and rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation. This factor was not shown to be a basis to support a larger fee. It was Heims' opinion that 25 to 30 hours was a reasonable number of attorney hours to prepare the answer brief and one motion for attorney's fees. Thirty hours was a sufficient number of hours for the research and drafting work done by Ms. Lahlou-Anime. However, because it has been determined that the filing of the motion to dismiss was reasonable, some additional time should be added. CMT Exhibit 1 indicates that Ms. Lahlou-Anime charged about 23 hours for her work on the motion to dismiss. However, in determining a reasonable number of hours for the work on the motion to dismiss, consideration must be given to the fact that the standing arguments made in the motion were repeated in CMT's answer brief, which has already been accounted for in the 30 hours. The parties did not address this specific issue. However, the evidence supports the addition of 10 hours for Ms. Lahlou-Anime, for a total of 40 hours. Forty hours for Ms. Lahlou-Anime at her rate of $260 per hour equals $10,400. Heims also failed to fairly account for the reasonableness of the attorney hours expended by Karen Brodeen, a senior attorney at Fowler who represented CMT in the lower administrative proceedings and who assisted Ms. Lahlou-Anime in the preparation of the motion to dismiss and answer brief. CMT Exhibit 1 shows that Ms. Brodeen charged 0.9 hours at $375 per hour and 16.9 hours at $385 per hour, for a total fee of $6,844. The grand total of reasonable attorney time is 57.8 hours and the total reasonable attorney's fee is $17,244. Appellate Costs CMT is seeking $3,250.95 in costs for the appellate proceeding, comprised of $3,156.41 in costs charged by Fowler and $94.54 charged by de la Parte & Gilbert. However, as discussed in the Conclusions of Law, the costs which CMT seeks to recover --routine office expenses--are not recoverable legal costs under the applicable statutes. Prejudgment Interest CMT seeks daily prejudgment interest at the rate of 0.01644 percent. Requested Sanctions in the DOAH Remand Proceeding CMT also seeks to recover its attorney's fees and costs incurred following the remand from the Court of Appeal to DOAH to determine the amount of appellate attorney's fees and costs, as a sanction for alleged misconduct by Schweickert. CMT seeks a sanction against Schweickert for his failure to appear at a scheduled deposition for which Schweickert had been subpoenaed. Schweickert was not represented by an attorney at the time. Schweickert told CMT's attorneys that he was not going to appear at the deposition, but CMT's attorneys went forward as planned. Schweickert did not appear for his deposition. CMT seeks to recover its attorney's fees charged by de la Parte & Gilbert that are related to Schweickert's failure to appear for his deposition, which are $17,975.00, and costs of $818.63. CMT also sought a sanction against Schweickert for having to respond to Schweickert's Motion for Cause of Contempt for Citrus Mining and Timber’s Violation of Court Order, which demanded sanctions against CMT for CMT's scheduling of Schweickert's deposition without attempting to contact him to arrange a mutually agreeable date and time. The motion was denied. Schweickert was not represented by an attorney at the time. CMT seeks to recover its attorney's fees charged by de la Parte & Gilbert to respond to the motion, which are $2,357.50, and costs of $21.52. The day before the final hearing, CMT filed a motion for sanctions for Schweickert's failure to provide complete answers to some of CMT's discovery requests. At the time of the final hearing on September 7, 2011, CMT showed a total of $35,570 in attorney's fees associated with the DOAH remand proceeding, and costs of $1,693.73. CMT seeks recovery of those fees and costs as well as subsequent fees and costs through issuance of the Final Order in this remand proceeding, which are estimated to be $22,000 and $10,870, respectively. In summary, CMT seeks to recover $70,133.73 in fees and costs that it was charged by its attorneys for their effort to show that CMT's appellate fees and costs of $53,673.45 were reasonable.
The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The amount of attorneys fees and costs, if any, that should be awarded Petitioners pursuant to the Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al., finding Petitioners entitled to attorneys fees and costs pursuant to the provisions of Section 120.595, Florida Statutes (Supp. 1996) and retaining jurisdiction to determine the "reasonable amounts" of such fees and costs
Findings Of Fact By Joint Prehearing Stipulation and without waiving objections to applicability of Section 120.595, Florida Statutes, the Agency For Health Care Administration (AHCA), has stipulated with all parties as to the "reasonable amounts" of requested fees and costs to be awarded Petitioners in the event that such an award is determined to be applicable. All parties have also stipulated to the lack of liability of Intervenor Citizens of the State of Florida for payment of any award of fees and costs in this proceeding. That stipulation in its entirety is incorporated by this reference within these findings of fact and attached to this Final Order as Exhibit "A." The amendments to Chapter 120, Florida Statutes, were adopted as part of a major rewrite of the APA. See, Chapter 96-159, Laws of Florida. The amendments were effective October 1, 1996, and were effective prior to the hearing related to the rule challenge cases. All parties requesting attorneys’ fees and costs rely upon Section 120.595(4), Florida Statutes (Supp. 1996) as authority for an award of fees. Provisions of Section 120.595(4), Florida Statutes (Supp. 1996), are applicable to the facts of this case. See, Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al.
The Issue The issue to be determined is whether Petitioner, Department of Environmental Protection (DEP), is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad (Spinrads), and their counsel, related to litigation between the parties in DOAH Case No. 13-2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
The Issue The issue is whether the Respondent is entitled to the issuance of a state license as a yacht and ship broker.
Findings Of Fact Ronald DeMarco is 52 years old, and a resident of Coral Springs, Florida. He is a co-owner of International Yacht Brokers, Inc., in Miami Beach. The company which was opened approximately six or seven years ago, is owned by Mr. DeMarco and a co-owner, Angela Chiarello. Mr. DeMarco moved to South Florida from New York in 1986 and, in May 1991, became a licensed ship and yacht broker. The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department) is the state agency which administers the Yacht and Ship Brokers' Act, Sections 326.001-326.006, Florida Statutes. Mr. DeMarco was hired, by Anthony Galgano, as an employee of Hidden Harbour Marina. Mr. Galgano was Mr. DeMarco's wife's cousin's brother. After Hidden Harbour Marina was sold, Mr. DeMarco continued to work for the new owner. Mr. Galgano moved to another office at the end of the same yard. Mr. DeMarco entered into a plea agreement signed by a United States District Judge for the Northern District of Ohio, dated April 29, 1996. In the agreement, which was received as Petitioner's Exhibit number 3, Mr. DeMarco acknowledged that the government could prove, beyond a reasonable doubt, that he conspired with Anthony Galgano and Lauren Freidman to steal and obtain by fraud, alter the hull identification number, and sell a 28' Regal boat. In June 1990 Mr. DeMarco notarized false documents purporting to transfer title to the 28' boat. In the plea agreement, Mr. DeMarco also acknowledged his involvement, with Angela Chiarello, Anthony Galgano, and others, in a conspiracy to steal, alter the identity of, and sell in interstate and foreign commerce a 36' Regal Commodore boat. According to the affidavit, Mr. DeMarco directed his co- defendant, Ms. Chiarello, to notarize documents related to the transfer of the 36' boat, in June 1991. Mr. DeMarco testified that he was 45 years old when he notarized the document at issue. Despite the description of his activities in the plea agreement, Mr. DeMarco also testified that he was only charged with one count of notarizing a fraudulent document, that related to the 28' Regal, and that he only pleaded to that one count. (T. 192.) As a result of the plea agreement, in 1996, Mr. DeMarco was placed on probation for three years and fined $2,000. The Judgment, dated April 29, 1996, was received in evidence as Petitioner's Exhibit number 2. On June 24, 1998, Mr. DeMarco's probation was terminated early. According to Mr. DeMarco, he accepted the plea agreement because he did not have money for an attorney, although he did have a public defender. He also testified that he spoke to Peter Butler, the head of the section of the Department which regulates ship brokers, while he was considering accepting the offer of a plea. Mr. Butler told Mr. DeMarco that his license would be the subject of a Notice of Intent to Revoke as a result of a plea. According to Mr. DeMarco, Mr. Butler also told him that he would get his license back " . . . as soon as all my commitments were done, probation and community service and stuff like that . . . ." (T. 188.) Mr. Butler testified, refreshing his memory with contemporaneously taken notes of their telephone conversation on June 29, 1998, that he told Mr. DeMarco that anyone could apply but he should review applicable rules and statutes, and that the Department would review his application. He denied telling Mr. DeMarco that he would be eligible to get his license back when his probation was terminated. Mr. Butler testified that some convicted felons are licensed by the state as yacht and ship brokers. Of approximately 3,800 licenses issued, with 1,700 currently active, Mr. Butler would guess that fewer than 100 of those licenses are issued to persons with felony convictions. By error, Mr. Butler issued a license to a convicted felon who was living in a halfway house at the time. After Mr. DeMarco brought that matter to Mr. Butler's attention, the Department issued a Notice of Intent to Revoke the license. (T.62-6 and 95.) Under the Yacht and Ship Brokers' Act, the Department does not regulate the selling and buying of new boats of any size or used boats equal to or smaller than 32 feet or in excess of 300 gross tons. The buying or selling of one of the vessels described in Mr. DeMarco's plea agreement would not be regulated under the Act. In his cross-examination of Peter Butler, the Respondent's counsel also established that Mr. Butler did not check Mr. DeMarco's letters of reference, and could not refute their representations concerning Mr. DeMarco's good moral character and integrity. Five of the eight letters of reference submitted to the Department by Mr. DeMarco were dated prior to the date of his conviction. Mr. Butler noted, in his testimony during cross- examination, that Rule 61B-60.003(3)(a)7., Florida Administrative Code, provides in pertinent part: Except as provided in sub-sub-paragraph 6.d. of this rule, no information relating to criminal, administrative or civil actions shall be considered if more than 5 years has elapsed from the satisfaction of the terms of any order, judgment, restitution agreement, or termination of any administrative or judicially-imposed confinement or supervision of the applicant, whichever is more recent. Any action, proceeding, or grievance filed against the applicant, individually or otherwise, which relates to the applicant's prospective duties, responsibilities, and obligations of licensure under chapter 326, Florida Statutes, may be considered with no limitation as to time. In reviewing Mr. DeMarco's application, Mr. Butler determined that the application failed to demonstrate that the applicant is of good moral character. He also determined that not more than five years have elapsed subsequent to the completion of his "penalty phase" and that his crime was "industry-related". (T. 66.) Following a review by a staff investigator, Mr. Butler's recommendation to deny a license is reviewed in the Department by someone on the legal staff, the bureau chief, and ultimately signed by the Division Director. (T. 52, 53 and 93.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying the Respondent's application for a yacht and ship brokers' license. DONE AND ENTERED this 22nd day of July, 1999, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 22nd day of July, 1999. COPIES FURNISHED: William Oglo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Fred C. Bamman, III, Esquire Bamman and Guinta Post Office Box 399 Pompano Beach, Florida 33061 Philip Nowick, Director Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed by Petitioner on November 20, 1980, be dismissed by final agency order. DONE AND ORDERED this 17th day of February, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1981. COPIES FURNISHED: William D. Moore, Esquire Ella Jane P. Davis, Esquire 700 Barnett Bank Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building, MS 58 Tallahassee, Florida 32301 J. Lawrence Johnston, Esquire Post Office Box 1170 Tallahassee, Florida 32302
The Issue The issue for determination is whether Intervenors are entitled to reasonable attorney fees and costs pursuant to Section 120.595, Florida Statutes (2003).1
Findings Of Fact Petitioner is an insurer and carrier within the meaning of Subsections 440.02(4) and 440.02(38), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(w).2 Petitioner is licensed in the state as a workers' compensation insurance carrier (carrier).3 Respondent is a state agency within the meaning of Subsection 440.02(3), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(b). In relevant part, Respondent is responsible for resolving reimbursement disputes between a carrier and a health care provider. Intervenors are health care providers within the meaning of Subsection 440.13(1)(h), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(u). Each Intervenor is a health care facility within the meaning of Subsection 440.13(1)(g), Florida Statutes (2005). Intervenors seek an award of attorney fees and costs against Petitioner pursuant to Sections 57.105 and 120.595, Florida Statutes (2003). The proceeding involving Section 57.105, Florida Statutes (2003), is the subject of a separate Final Order entered on the same date as this Recommended Order. The scope of this Recommended Order is limited to Section 120.595, Florida Statutes (2003). Intervenors allege that Petitioner is the "non- prevailing adverse party" in an underlying proceeding and participated in the underlying proceeding for an "improper purpose" as the quoted terms are defined, respectively, in Subsections 120.595(1)(e)3. and 120.595(1)(e)1., Florida Statutes (2003). The underlying proceeding involves eight consolidated Petitions for Administrative Hearing. Petitioner filed each Petition for Administrative Hearing after Respondent determined Petitioner had improperly discounted the amount of reimbursement Petitioner paid for hospital services that Intervenors provided to eight patients from March 13, 2004, through February 11, 2005. From April 13 through May 23, 2005, Respondent issued separate orders directing Petitioner to pay the disputed amounts pursuant to Subsection 440.13(7), Florida Statutes (2005). From June 1 through June 21, 2005, Petitioner filed eight separate Petitions for Administrative Hearing. The eight petitions were subsequently consolidated into one underlying proceeding. Petitioner is the non-prevailing adverse party in the underlying proceeding. On December 8, 2005, Petitioner filed a Notice of Voluntary Dismissal in the underlying proceeding. On December 9, 2005, Intervenors filed their motion for attorney fees based on Section 120.595, Florida Statutes (2003). The formal hearing in the underlying proceeding was set for January 18, 2006. The ALJ amended the issue for the formal hearing to exclude the original reimbursement dispute and to limit the scope of the formal hearing to the fee dispute. The ALJ did so to avoid delay in the resolution of the proceeding. The fee dispute at issue in this proceeding includes only six of the original eight reimbursement disputes because Intervenors were not the medical providers in two of the original eight disputes.4 In the six reimbursement disputes involving Intervenors, Respondent ordered Petitioner to pay additional reimbursements in the aggregate amount of $54,178.52. Approximately $51,489.27 of the $54,178.52 in additional reimbursement involved inpatient hospital services provided to one patient.5 The remaining $2,689.25 in additional reimbursement involved outpatient hospital services in the emergency room.6 Subsection 440.13(12), Florida Statutes (2005), mandates that a three-member panel must determine statewide schedules for reimbursement allowances for inpatient hospital care. The statute requires hospital outpatient care to be reimbursed at 75 percent of "usual and customary" charges with certain exceptions not relevant to this proceeding. Notwithstanding the statutory mandate to schedule reimbursement rates for hospital inpatient services, the inpatient services at issue in the underlying proceeding were apparently unscheduled inpatient services. By letter dated April 13, 2005, Respondent ordered Petitioner to pay Intervenor, Holmes Regional Medical Center, Inc. (Holmes), an additional reimbursement in the amount of $51,489.27. The total reimbursement to Holmes was 75 percent of the charges that Holmes submitted to Petitioner for reimbursement.7 Respondent interprets Subsection 440.13(12), Florida Statutes (2005), to authorize reimbursement of both unscheduled inpatient hospital services and outpatient hospital services at the same rate. There is no dispute that Respondent reimburses unscheduled inpatient hospital services and outpatient hospital services at 75 percent of the "usual and customary" charges. The dispute in the underlying proceeding was over the meaning of the phrase "usual and customary" charges. Petitioner challenged the interpretation asserted by Respondent and Intervenors. Respondent and Intervenors contended that the quoted statutory phrase means Intervenors' usual and customary charges evidenced in a proprietary document identified in the record as the "charge master." Each Intervenor maintains its own charge master, and the information in each charge master is proprietary and confidential to each Intervenor. Petitioner asserted that the statutory phrase "usual and customary" charges means the usual and customary charges imposed by other hospitals in the community in which Intervenors are located. Petitioner maintains a data base that contains information sufficient to determine the usual and customary charges in each community. Petitioner did not participate in the underlying proceeding for an improper purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2003). Rather, Petitioner presented a good faith claim or defense to modify or reverse the then-existing interpretation of Subsection 440.13(12), Florida Statutes (2005). Petitioner had a reasonable expectation of success. The statutory phrase "usual and customary" charges is not defined by statute. Nor has the phrase been judicially defined. Respondent bases its interpretation of the disputed phrase on two agency final orders and relevant language in the Florida Workers' Compensation Reimbursement Manual for Hospitals (2004 Second Edition) (the Manual). The Manual is developed by the Florida Department of Financial Services (DFS).8 The Manual interprets the quoted statutory phrase to mean the "hospital's charges." However, after the effective date of the Manual in 2004, DFS developed a proposed change to the Manual that, in relevant part, interprets "usual and customary" charges to mean the lesser of the charges billed by the hospital or the median charge of hospitals located within the same Medicare geographic locality.9 The trier of fact does not consider the new interpretation of the disputed statutory phrase as evidence relevant to a disputed issue of fact. As Respondent determined in an Order to Show Cause issued on February 16, 2006, and attached to Intervenors' PRO, "what constitutes 'usual and customary' charges is a question of law, not fact." The ALJ considers the new interpretation proposed by DFS for the purpose of determining the reasonableness of the interpretation asserted by Petitioner in the underlying proceeding. The ALJ also considers the new DFS interpretation to determine whether the interpretation asserted by Petitioner presented a justiciable issue of law. Intervenors assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to initially explain its reduced reimbursement to Intervenors with one of the codes authorized in Florida Administrative Code Rule 69L-7.602(5)(n) as an explanation of bill review (EOBR). None of the EOBR codes, however, contemplates a new interpretation of the statutory phrase "usual and customary" charges. Intervenors further assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to respond to discovery. However, responses to discovery would not have further elucidated Petitioner's rule-challenge. Petitioner stated eight times in each Petition for Administrative Hearing that Florida Administrative Code Rule 69L-7.501, the DFS rule incorporating the Manual by reference: [S]hould be read to allow recovery of 75% of the usual and customary fee prevailing in the community, and not 75% of whatever fee an individual provider elects to charge. Respondent and Intervenors were fully aware of the absence of statutory and judicial authority to resolve the issue. Petitioner did raise at least one factual issue in each Petition for Administrative Hearing. Petitioner alleged that Respondent's decision letters ordering Petitioner to pay additional reimbursement amounts had no legal effect because Respondent acted before each provider requested and received the carrier's reconsidered reimbursement decision. The absence of a formal hearing in the underlying proceeding foreclosed an evidential basis for a determination of whether each provider in fact requested and received a reconsidered reimbursement decision before the date Respondent ordered Petitioner to pay additional reimbursements. In this fee dispute, Petitioner presented some evidence to support the factual allegation and thereby established the presence of a justiciable issue of fact. It is not necessary for Petitioner to present enough evidence to show that Petitioner would have prevailed on that factual issue in the underlying proceeding. If the letters of determination issued by Respondent were without legal effect, Petitioner would not have waived its objections to further reimbursement within the meaning of Subsection 440.13(7)(b), Florida Statutes (2005). A determination that Petitioner did, or did not, submit the required information is unnecessary in this proceeding. During the formal hearing in this proceeding, Petitioner called an expert employed by a company identified in the record as Qmedtrix. The testimony showed a factual basis for the initial reimbursement paid by Petitioner. It is not necessary for Petitioner to show that this evidence was sufficient to prevail on the merits in the underlying case. The evidence is sufficient to establish justiciable issues of fact in the underlying case. In this proceeding, Petitioner submitted some evidence of justiciable issues of fact in the underlying proceeding. Petitioner need not submit enough evidence in this fee dispute to show Petitioner would have prevailed on these factual issues in the underlying proceeding. Intervenors are not entitled to a presumption that Petitioner participated in this proceeding for an improper purpose in accordance with Subsection 120.595(1)(c), Florida Statutes (2003). Although Petitioner was the non-prevailing party in two previous administrative hearings involving the same legal issue, the two proceedings were not against the same prevailing hospital provider and did not involve the same "project" as required in the relevant statute. Intervenors seek attorney fees in the amount of $36,960 and costs in the amount of $2,335.37 through the date that Petitioner voluntarily dismissed the underlying proceeding. Absent a finding that Petitioner participated in the underlying proceeding for an improper purpose, it is unnecessary to address the amount and reasonableness of the attorney fees and costs sought by Intervenors. If it were determined that Petitioner participated in the underlying proceeding for an improper purpose, the trier of fact cannot make a finding that the proposed attorney fees and costs are reasonable. Such a finding is not supported by competent and substantial evidence. The total attorney fees and costs billed in the underlying proceeding were charged by six or seven attorneys or paralegals employed by the billing law firm. However, the fees and costs at issue in this proceeding exclude any time and costs charged by paralegals and include only a portion of the total fees and costs charged by the attorneys. The total amount of time billed and costs incurred in the underlying proceeding is evidenced in business records identified in the record as Intervenors' Exhibits 20-23. However, those exhibits do not evidence the reasonableness of the fees and costs billed by the attorneys.10 Either the testimony of the billing attorneys or the actual time slips may have been sufficient to support a finding that the attorney fees and costs are reasonable. However, Intervenors pretermitted both means of proof. Intervenors asserted that the time slips contain information protected by the attorney-client privilege. However, Intervenors neither submitted redacted time slips nor offered the actual time slips for in-camera review. Nor did Intervenors allow the attorneys to testify concerning unprivileged matters. The absence of both the testimony of the attorneys and the time slips is fatal. The fact-finder has insufficient evidence to assess the reasonableness of the fees and costs, based on the novelty and difficulty of the questions involved. Intervenors' expert opined that the attorney fees and costs are reasonable. The expert based her opinion, in relevant part, on her review of the actual time slips maintained by each attorney. However, Petitioner was unable to review the time slips before cross-examining the expert. In lieu of the actual time slips, Intervenors submitted a summary of the nature of the time spent by each attorney. The summary is identified in the record as Intervenors' Exhibit 2. Petitioner objected to Intervenors' Exhibit 2, in relevant part, on the ground that it is hearsay. The ALJ reserved ruling on the objection and invited each side to brief the issue in its respective PRO. The paucity of relevant citations in the PROs demonstrates that neither side vigorously embraced the ALJ's invitation. Intervenors' Exhibit 2 is hearsay within the meaning of Subsection 90.801(1)(c), Florida Statutes (2005).11 The author of Intervenors' Exhibit 2 summarized the unsworn statements of attorneys from their time slips and submitted those statements to prove the truth of the assertion that the time billed was reasonable. Intervenors made neither the attorneys nor their time slips available for cross examination.12 Even if the summary were admissible, the summary and the testimony of its author are insufficient to show the attorney fees and costs were reasonable. The insufficiency of the summary emerged during cross-examination of its author. The author is the lone attorney from the billing law firm who testified at the hearing. Q. What other information did you look at to decide what time to actually bill . . .? A. The information I used was the information from the actual bill. Q. If we look at the first entry . . . were you the person that conducted that telephone conference? A. No, I wasn't. Transcript (TR) at 510-511. Q. In other words, [the entries] go with the date as opposed to the event [such as a motion to relinquish]? A. That's correct. Q. So if I wanted to know how much time it took you to actually work on the motion to relinquish, I would have to look at each entry and add up all the hours to find out how long it took you to do one motion. Is that how I would do that? A. It would be difficult to isolate that information from this record, we bill and explain in the narrative what work is performed each day, and unless that was the single thing worked on for several days, there would be no way to isolate the time, because we don't bill sort of by motion or topic. . . . Q. Well, if I'm trying to decide whether the time billed is reasonable, wouldn't I need to know how much time was spent on each task? A. I'm not sure how you would want to approach that. . . . Looking at this document, it does not give you that detail. It doesn't provide that breakout of information. Q. Is there a way for us to know who you spoke with on those entries? A. The entry . . . doesn't specify who participated in the conference. I don't recall what the conference entailed . . . . And many of these entries are from months ago, and I can't specifically recall on that date if I was involved in a conference and who else might have been there. . . . And so my guess is where the conference is listed on a day when lots of activity was performed on behalf of the client, most of it in this case was research. TR at 516-521.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the motion for attorney fees and costs. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 27th day of April, 2006.
