The Issue Whether the license of the Defendant should be suspended or revoked.
Findings Of Fact Defendant Robert M. Trombley holds real estate broker's license No. 0090046. An Information was filed against Defendant charging him with sharing a commission or paying a fee or other compensation to a person not properly registered as a real estate broker or salesman under the laws of this state for the referral of real estate business, clients, prospects or customers in violation of Subsections 475.25(1) and 475.01(2), Florida Statutes. Mary M. Morritt, a real estate broker with Realty Unlimited, was involved in a real estate transaction with Defendant for the purchase of 37 acres of property in Brevard County in the summer of 1972. Several times she met with others and the purhaser's agent, Percy Buzaglo, in order to draw a contract. Mrs. Morritt suggested at a meeting in the office of Tom Griffith, Esquire, that the real estate commission be renegotiated and divided equally amoung the three brokers involved in the sale. She received no response to her suggestion although on a previous occasion Defendant had understood from a remark of Defendant that another broker was involved in the purchase. Mrs Morritt received a commission for the sale although she did not attend the closing. She never saw the unknown so-designated broker she had understood would share the commission and saw no evidence of an agreement or payment of real estate commission to him. At the time of the hearing the witness did not know the names of all of the principals. Mr. Ray M. Teboe, a registered real estate broker with Realty Unlimited, testified that there was a commission split in April 1973 for the sale of the subject property 50 percent to Defendant and 50 percent to Realty Unlimited which in turn was divided with The Keyes Company. Mr. Teboe understood from Mrs. Morritt that Defendant had another broker working with him. Mr. Teboe understood that Defendant was afraid of getting into trouble with, he understood, the Florida Real Estate Commission. Mr. Teboe was at some of the meetings concerning the transaction with Defendant and Defendant mentioned that he had to pay his wife alimony. Relevancy of this statement not established. The main witness for the Plaintiff refused to testify upon the grounds that his testimony might tend to incriminate him. The Hearing Officer further finds: The Plaintiff Florida Real Estate Commission presented evidence and testimony by witnesses with innuendo that Defendant as a cooperating real estate broker did share a real estate commission in violation of Chapter 475, Florida Statutes, but did not present sufficient competent evidence to establish its position that the Defendant did in fact violate the statute.
Recommendation Dismiss the Information. DONE and ORDERED this 12th day of February, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 David T. Price, Esquire Price, Bryne & Case 2810 East Oakland Park Boulevard Fort Lauderdale, Florida
The Issue The issue is the amount of attorney's fees and costs to which Petitioner is entitled as the prevailing party in the underlying matter, DOAH Case No. 19-4155.
Findings Of Fact Through its submission of evidence and presentation of witnesses, Petitioner has demonstrated that the attorney's fees sought are reasonable based upon the reasonable rate charged and the reasonable hours expended in this matter. During the December 19, 2019, hearing, Respondent offered little evidence and no witnesses to adequately dispute Petitioner's position. The hours expended in this matter are reasonable given the time and labor required, the novelty, complexity, and difficulty of the questions involved, the skills required to perform the legal service properly, the fact that working on this matter precluded other employment, and the accelerated time limitations imposed by section 1002.33(8)(c). For example, although the documents reviewed and relied upon by Petitioner were voluminous, and the motion practice was unrelenting throughout the abbreviated discovery period, the allotted time to conduct discovery, prepare for, and litigate this matter was minimal. The governing statute itself, section 1002.33(8)(c), requires that a final order be issued within 60 days of the request for hearing. In order to adequately litigate this matter, Petitioner's legal team had to dedicate almost entirely all of their time to this matter for several weeks at the cost of time that would otherwise have been dedicated to other cases and/or employment opportunities. The impact of this preclusion is especially significant given the fact that Johnson Jackson PLLC Attorney Erin G. Jackson's hourly rate for Petitioner ($165.00) is significantly lower than the hourly rate charged to the firm's private sector clients. This preclusion additionally resulted in Ms. Jackson relying upon the assistance of multiple Johnson Jackson PLLC attorneys, clerks, and paralegals, in addition to Attorney Terry J. Harmon of Sniffen & Spellman, P.A. Like Ms. Jackson, Mr. Harmon charged Petitioner a rate that is significantly lower than the rate he generally charges for private sector clients. The unique circumstances of this case rendered this assistance both reasonable and necessary to Petitioner's success in this matter. Further complicating matters, the question at issue, i.e., whether Petitioner proved violations of law and other good cause to immediately terminate a charter school agreement pursuant to section 1002.33(8)(c), is a novel one. In fact, section 1002.33(8)(c) was recently revised in 2018 in two notable and impactful ways: (1) section 1002.33(8)(d) became 1002.33(8)(c); and (2) the Florida legislature removed the option for the sponsor to hear an appeal of immediate termination, instead now requiring that all such appeals be held before an ALJ. Compare § 1002.33(8)(d), Fla. Stat. (2017), with § 1002.33(8)(c), Fla. Stat. (2018). Consequently, precedent with similar factual circumstances raising related issues pursuant to this statute is nearly nonexistent. The lack of precedent on this issue is further heightened by the fact that the conditions necessary to warrant immediate termination, i.e., an immediate and serious danger to the health, safety, or welfare of charter school students, are more severe and, therefore, much less common than terminations pursuant to other portions of section 1002.33. The novelty, complexity, and difficulty of this issue necessarily required Ms. Jackson to expend significant time and resources on researching and strategizing in preparation for the hearing. Respondent's evasive and dismissive behavior further contributed to the foregoing challenges and required Petitioner's legal team to dedicate additional hours and attorneys to this matter that would not have otherwise been necessary if Respondent simply complied with the rules of discovery and the undersigned's orders regarding the same. Consequently, Petitioner's legal team spent more than 73 hours drafting motions and performing related duties addressing Respondent's persistent refusal to respond to discovery. As a result of Respondent's failure to comply with discovery requirements and direct orders from the undersigned, Petitioner had no choice but to expend this additional time. The legitimacy and necessity of these efforts is further evidenced by the fact that the undersigned granted each of Petitioner's motions to compel. Further, Johnson Jackson PLLC maintained detailed records of all services rendered as evidence of the extensive time and effort dedicated to this matter. These records demonstrate that Johnson Jackson PLLC attorneys and staff dedicated approximately 1,178.8 hours between July 30, 2019 (when Ms. Jackson began drafting written discovery to be issued to Respondent), and January 15, 2020, to this matter. Sniffen & Spellman, P.A., also maintained detailed records of all services rendered. These records show that the attorneys and staff of Sniffen & Spellman, P.A., dedicated approximately 71.9 hours to this matter between August 2019 and January 15, 2020. During the December 19, 2019, hearing, Petitioner's expert, Attorney Robert W. Boos of Adams and Reese, testified to the reasonableness of the hours expended by Johnson Jackson PLLC in this matter. Mr. Boos has been practicing law for approximately 40 years and has served as counsel for the Hillsborough County School Board. Based on Mr. Boos' years of experience as an attorney, in addition to a review of the hours expended by the attorneys and staff of Johnson Jackson PLLC and Sniffen & Spellman, P.A., Mr. Boos testified that the total amount of hours expended was reasonable given the underlying circumstances of this matter. He also found the discounted hourly rate to be "eminently reasonable." In an effort to rebut the reasonableness of the hours expended by Petitioner's legal team, Respondent attempted to dispute the nature of its behavior in the underlying proceedings during the December 19, 2019, hearing. Specifically, although Respondent contended that it was not there "to relitigate what already happened at the previous hearing," Respondent then went on to assert that, "LMA's entire inventory, every single piece of paper, every single record was seized by Manatee County School Board. They had access to everything." However, as already thoroughly addressed by the undersigned in his 95-page Final Order, Petitioner, in fact, did not have access to everything. In fact, Petitioner still does not have access to "everything." As previously explained by the undersigned: Another factor that has not gone unnoticed by the undersigned in the course of these expedited proceedings is that LMA's pattern of refusing to respond to requests for information made by the School District during discovery has continued into these proceedings. The undersigned can only imagine Petitioner's frustration with the constant refusal of LMA to provide the documents requested during discovery, with the common refrain of "you already have the documents, because you (the School District) seized all of LMA's records … leaving us (the former staff) with nothing to provide you." However, this cry by LMA fails to ring true … . No evidence was presented through testimony, and certainly not through documentation, that LMA provided the complete records of their activities in this first year of the charter's school operations. As acknowledged by Respondent, the parties have already litigated this issue. The undersigned previously issued his Final Order as to the issue of these documents. The undersigned also stated his intent to avoid relitigating the issue during the December 19, 2019, hearing. Respondent's argument is without merit, blatantly disregards previous rulings in the underlying case, and, therefore, should have no bearing on the present issues. Notably, Respondent did not dispute the novelty and complexity of the issues involved or expedited nature of this matter. To the contrary, Respondent's qualified representative, Mr. Norwood, described this matter as "very quick, very expedited," explaining further that, "[t]here was a lot of things that happened not, you know, typical of any case … . This is a fairly new area of law, period." Such factors are relevant to determining whether the number of hours expended were reasonable. Although Respondent did not dispute the expedited nature of this matter, it nonetheless attempted to argue that the School Board had a "choice," with respect to terminating LMA's charter immediately pursuant to section 1002.33(8)(c), which requires expedited proceedings, versus section 1002.33(8)(b), which allows for a 90-day timeline. Based on this contention, Respondent suggested that it was Petitioner's own fault that these proceedings were expedited, and, therefore, Petitioner should pay for it. But this argument fails to account for the fact that the undersigned has already determined that the rationale underlying Petitioner's decision to terminate Respondent's charter was warranted due to the dangers that Respondent posed to its students' health, safety, and welfare. With student health, safety, and welfare at risk, Petitioner did not have a "choice." Rather, the act of immediately terminating LMA's charter was "the only remaining" measure available to Petitioner at that point in time: The testimony presented by both parties to this proceeding leads the undersigned to the conclusion that no tools were left for the School District in dealing with a charter school that failed to address their repeated efforts at gathering information. As evidenced by the foregoing, Petitioner has already litigated and provided sufficient evidence of the numerous notices and warnings Petitioner issued to Respondent and Respondent's lack of cooperation preceding the termination of its charter. Contrary to Respondent's allegations, Respondent's own choices caused this expediency. Accordingly, Respondent should bear the cost, not Petitioner. Given the novelty, complexity, and difficulty of resolving this issue coupled with the extraordinary circumstances of this matter, including but not limited to, the time spent by Petitioner's legal team attempting to overcome Respondent's prejudicial hurdles, the hours expended were clearly reasonable. The rates charged by Petitioner were equally reasonable. In consideration of the market value and the factors set forth in Rule Regulating Florida Bar 4-1.5, Johnson Jackson PLLC charged Petitioner $165.00 per hour for attorneys; $100.00 per hour for first-year attorneys; and $90.00 per hour for paralegals and law clerks. Johnson Jackson PLLC's hourly rate is extremely reasonable given the experience and expertise of its attorneys and staff, as evidenced by their CVs and affidavits. Sniffen & Spellman, P.A., similarly charged Petitioner $165.00 per hour for attorneys; $75.00 per hour for paralegals; and $50.00 per hour for law clerks. As evidenced by the fact that both Johnson Jackson PPLC attorneys and Sniffen & Spellman, P.A., attorneys billed the same rate, Sniffen & Spellman, P.A.'s, hourly rate is consistent with the market rate and reasonable given the experience and expertise of its attorneys and staff, once again as evidenced by Mr. Harmon's CV and affidavits. The foregoing rates are also consistent with, if not noticeably lower than, the rates charged by other attorneys, paralegals, and/or law clerks, to school boards in other nearby counties in Florida. For example, attorneys for Indian River County charge $250.00 to $180.00 per hour and attorneys for Hernando County charge $285.00 to $215.00 per hour. Importantly, despite the expedited nature of this matter, these rates do not exceed the fee agreements between Petitioner's legal team and Petitioner, which both preceded the circumstances that gave rise to this matter. Both Johnson Jackson PLLC and Sniffen & Spellman, P.A., remained committed to the hourly rates agreed-to pursuant to these agreements regardless of the complexity, novelty, and difficulty of the issues. The reasonableness of these rates is further evidenced by the nature and length of Johnson Jackson PLLC and Sniffen & Spellman, P.A.'s, professional relationship with Petitioner. For example, Ms. Jackson has had a professional relationship with Petitioner since 2009. The length of Ms. Jackson and Mr. Harmon's relationship with Petitioner also serves as evidence of Ms. Jackson and Mr. Harmon's extensive experience, skills, expertise, and abilities in this area of law. Ms. Jackson has been admitted to The Florida Bar since 2000, and Mr. Harmon has been admitted to The Florida Bar since 2006. Ms. Jackson is board certified by The Florida Bar in labor and employment law, and Mr. Harmon is board certified by The Florida Bar in education law. During the December 19, 2019, hearing, Petitioner's expert, Mr. Boos, testified to the reasonableness of the fees charged by Ms. Jackson in this matter. As mentioned previously, Mr. Boos has been practicing law for approximately 40 years and has served as counsel for the Hillsborough County School Board. Mr. Boos testified that he generally charges the School Board of Hillsborough County $310.00 per hour. By comparison, Petitioner's legal team charged Petitioner no more than $165.00 per hour. Based on Mr. Boos' years of experience as an attorney, in addition to his review of the lawyer invoices, Mr. Boos testified that Petitioner's legal team's hourly rate was "eminently reasonable." Respondent did not dispute or otherwise offer any evidence disputing the reasonableness of the hourly rates charged during the December 19, 2019, hearing. Based upon the foregoing findings, Petitioner's legal team's hourly rates are clearly reasonable in light of the market value, the agreements between the parties, and the experience and skill offered by the attorneys and staff at Johnson Jackson PLLC and Sniffen & Spellman, P.A. Accordingly, the undersigned accepts these rates in calculating the total amount of attorney's fees owed by Respondent in this matter. Based upon the reasonableness of the fees charged and hours expended, the Lodestar figure (i.e., the fees charged multiplied by the hours expended) is $175,658.00 for work performed prior to November 30, 2019, and is $17,992.50 for work performed through January 15, 2020; together, totaling $193,650.50. These totals are broken down in detail below: For work performed prior to November 30, 2019: Erin Jackson (Shareholder) - $165.00 x 346.5 hours = $57,172.50 Kevin Johnson (Shareholder) - $165.00 x 9.1 hours = $1,501.50 Christopher Bentley (Partner) - $165.00 x 4.9 hours = $808.50 Ashley Gallagher (n/k/a Tinsley) (Associate Attorney) - $165.00 x 434.1 hours = $71,626.50 Beatriz Miranda (Associate Attorney) - $165.00 x 118.2 hours = $19,503.00 Colby Ellis (Associate Attorney) - $100.00 x 2.5 hours = $250.00 Colby Ellis (Law Clerk) - $90.00 x 8.3 hours = $747.00 Julia Shinn (Paralegal) - $90.00 x 109.6 hours = $9,864.00 Tiffany Albertson (Paralegal) - $90.00 x 35.5 hours = $3,195.00 Terry J. Harmon (Shareholder)- $165.00 x 66 hours = $10,890.00 Sara Finnegan (Law Clerk) - $50.00 x 2 hours = $100.00 TOTAL PRE-NOVEMBER 30, 2019: $175,658.00 For work performed since the November 30, 2019, invoice: Erin Jackson (Shareholder) - $165.00 x 31.8 hours = $5,247.00 Ashley Gallagher (Associate Attorney) - $165.00 x 61.6 hours = $10,164.00 Bridget McNamee (Of Counsel) - $165.00 x 2.8 hours = $462.00 Julia Shinn (Paralegal) - $90.00 x 15.8 hours = $1,422.00 Tiffany Albertson (Paralegal) - $90.00 x 0.6 hours = $54.00 Terry J. Harmon (Shareholder) - $165.00 x 3.9 hours = $643.50 TOTAL POST-NOVEMBER 30, 2019: $17,992.50 TOTAL FOR PRE- AND POST-NOVEMBER 30, 2019: $193,650.50 Because the total fee amount of $193,650.50 is based upon reasonable hours expended and a reasonable hourly rate, this amount, at a minimum, should be awarded. The costs sought by Petitioner in this matter are also reasonable. As previously mentioned, Ms. Jackson and Petitioner have a professional relationship that began approximately ten years ago. This relationship is governed by a fee agreement. Petitioner's fee agreement with Johnson Jackson PLLC provides that its invoices itemize all costs, and such costs may include travel expenses, courier services, service of process fees, photocopy charges by third parties, filing fees, recording fees, lien and judgment searches, expert witnesses, court reporter services, corporate record books, registration fees charged by governmental authorities, and any other costs incurred in the course of representation. In accordance with this agreement, Johnson Jackson PLLC maintains documents itemizing all costs incurred. Accordingly, Petitioner has proper notice of the costs that may be included in any invoices issued, and each cost can be identified and allocated for purposes of demonstrating the reasonable need for these expenses. During the December 19, 2019, hearing, Mr. Boos testified that he reviewed the expenses and costs charged and found those expenses to be reasonable and customary for this type of matter. For purposes of the December 19, 2019, hearing, Petitioner paid Mr. Boos $7,500.00 for his services and $598.45 for court reporter services, totaling $8,098.45 in additional taxable costs accrued since the December 19, 2019, hearing. These costs were necessary expenditures for purposes of pursuing attorney's fees and costs in this matter. In consideration of Mr. Boos' testimony in addition to the applicable factors and guidelines, the following expenditures by Johnson Jackson PLLC should be taxed: Court Reporters/Transcripts: $25,607.9017 Service of Subpoenas & related services: $4,141.74 Cost of expert testimony by Bob Boos, Esq.: $7,500 The foregoing expenditures total $37,249.64 in taxable costs. Given the reasonableness and necessity of these expenditures, Petitioner should be awarded these costs in full. In addition to the costs outlined above, Respondent must also pay for the services rendered by CRI and Sylint. Petitioner hired CRI to conduct a forensic investigation of LMA, which included, but was not limited to, conducting an analysis of the funding received by LMA and the categorical use of those funds by LMA; confirming LMA's payroll process and determining the status of employee payroll to determine employee payroll liabilities; determining LMA employee withholdings for payroll taxes meant to be paid to the Internal Revenue Service, and LMA employee withholdings for the pension meant to be paid to the Florida Retirement System; and determine LMA's liabilities based upon the unpaid invoices and breakdown of all liabilities between the 2018/2019 and 2019/2020 school year. Based on a thorough analysis of this data, CRI prepared a report, accompanied by hundreds of pages of exhibits, upon which Petitioner's legal team heavily relied on during the formal hearing. Among other things, this report identified the voluminous debts accrued by Respondent; the source of some of those debts; and the funds that still remained unaccounted for. Pursuant to this investigation, CRI was able to confirm Respondent's debt totaled more than one million dollars. CRI Manager Mark S. Smith, Jr., drafted the report and testified about his findings and the basis for his conclusions during the hearing. During the December 19, 2019, hearing, Mr. Smith confirmed that he testified during the August 2019 hearing and verified the authenticity of his CV, CRI's invoices, and the scope of CRI's services pursuant to CRI's engagement letter with Petitioner. CRI's forensic investigation and report served as undisputable evidence of Respondent's egregious financial mismanagement and how this financial mismanagement posed an immediate danger to student health, safety, and welfare of LMA's students. The pivotal role that CRI's services played in the underlying case is undisputed. Services rendered by CRI total $42,091.00 and are broken down as follows: August 15, 2019 Invoice: $18,258.00 August 27, 2019 Invoice: $18,871.00 September 10, 2019 Invoice: $4,962.00 For similar reasons, Respondent should also pay for Sylint's services. Petitioner hired Sylint to conduct a forensic audit and investigation of Respondent's laptops, cloud accounts (including but not limited to LMA's "G-suite"), emails, and other electronic software and devices, and provide forensic and evidentiary guidance relative to this litigation. In the performance of these services, Sylint analyzed and authenticated evidence demonstrating the danger that Respondent's ongoing operations posed to student health, safety, and welfare, including but not limited to, surveillance videos showing CEO Eddie Hundley having direct contact with students while on campus, even though this conduct expressly violated statutory law and directives from the Commissioner of Education. The CEO and President of Sylint, John E. Jorgensen, testified and authenticated the date and time of these surveillance videos during the formal hearing on August 27, 2019. Sylint also discovered that agents of Respondent, including, but not limited to, Chief Financial Officer Cornelle Maxfield, deleted hundreds of files during the pendency of this action after Petitioner had served Respondent with written discovery requests. Sylint's employee, Weston Watson, testified regarding the deletion of these files during the formal hearing on August 26, 2019. To demonstrate the prejudicial effect of Respondent's conduct, Sylint also created several demonstratives presented at the hearing, including, but not limited to, a timeline showing when agents of LMA deleted documentation seemingly responsive to Petitioner's discovery requests. In addition to deleting files that should have been preserved, Respondent failed to comply with numerous requests by Sylint, Petitioner, and the undersigned to hand over tablets, phones, and/or emails in a timely fashion. For example, Mr. Hundley never gave Petitioner or Sylint his phone despite numerous requests that he do so and did not provide a USB containing his emails until approximately 3:00 p.m. on the second day of the four-day hearing. Services rendered by Sylint from August 2, 2019, to August 30, 2019, which included, but were not limited to: evidence collection and intake; data analysis; device imaging; hearing preparation; and testimony at hearing, cost approximately $24,996.68. During the December 19, 2019, hearing, and pursuant to a Motion in Limine, Respondent objected to the introduction of evidence regarding CRI and Sylint's services because the respective investigations "would have happened regardless of whether or not LMA had appealed the decision to terminate the school." In support of this contention, Respondent cited the July 23, 2019, School Board meeting minutes. However, contrary to Respondent's contentions, the July 23 School Board meeting minutes demonstrate exactly why CRI and Sylint's invoices are relevant and should be reimbursed—because the services performed by CRI and Sylint would not have been necessary but for LMA's mismanagement and poor decision- making—not any action taken by the School Board. As pointedly explained by the undersigned: I don't think they bring in a firm to perform an audit between school years … if they didn't think there was a problem going on … But this was in no way, shape, or form a routine audit being performed by CRI. It was a forensic audit looking for money that was believed to have gone missing, and ultimately based on my findings proven to have gone missing. The undersigned has already determined that the conditions resulting in the termination of LMA's charter posed an immediate danger to student health, safety, and welfare; and Respondent's conduct caused such conditions to arise. The evidence discovered and/or analyzed by Sylint and CRI was vital to Petitioner's case. In fact, the undersigned expressly relied on evidence discovered and/or analyzed by CRI and Sylint in finding that both Respondent's financial mismanagement and Mr. Hundley's conduct posed an immediate danger to the health, safety, and welfare of students. As explained by the undersigned in his Final Order: When forensic accountants and long-time public officials cannot find all of the necessary records to continue the operation of the school, just two days after being taken over by the School District, to answer the questions about payroll taxes, FRS contributions, Best and Brightest awards, food service menus and purchases, and utility payments, someone is hiding the ball. … Even with limited records available, however, the School District has made a strong case for immediately terminating the charter. Although Respondent disputes whether Petitioner would have employed CRI and Sylint's services regardless of Respondent's appeal, Respondent does not dispute the vital role that CRI and Sylint's services played in this matter. Respondent failed to produce documentation requested during discovery despite assurances that it would do so and, months later, still has not produced requested documentation. Respondent has never, during the pendency of these proceedings, in good faith responded to reasonable discovery requests. CRI and Sylint, to the extent possible, were able to at least partially to fill this gap of missing information and even demonstrate how Respondent was actively engaging in conduct to ensure Petitioner did not have access to this information. In light of Respondent's complete failure to cooperate with Petitioner, Petitioner had no choice but to rely upon CRI and Sylint's assistance. Absent this assistance, Respondent's prejudicial conduct would have significantly, if not completely, debilitated Petitioner's ability to demonstrate the true extent of the immediate dangers that Respondent posed to student health, safety, and welfare. It is also important to note that Petitioner has already reduced the requested costs for CRI and Sylint's services in an effort to be reasonable. As noted by the undersigned, Petitioner reduced the CRI invoices from $54,000.00 to $42,091.00, only submitting invoices beginning in August 2019. Sylint's invoices also begin in August 2019. Thus, prior to submission of Respondent's Motion in Limine, Petitioner already excluded, although it did not have to, any costs pertaining to services that could have arguably been perceived as "outside the scope of the Order on Termination." In consideration of the foregoing, Respondent should pay for CRI and Sylint's services as taxable costs and/or as sanctions for Respondent's willful lack of cooperation throughout these proceedings. Respondent's conduct remains undisputed. The prejudicial effect of Respondent's conduct remains undisputed. Accordingly, Respondent should be liable for these costs, totaling $67,087.68.
The Issue Is the practice of the Respondent, Agency for Health Care Administration (Agency), to decline Medicaid-funded compensation for emergency medical services provided to undocumented aliens once the patients have reached a point of stabilization an unpromulgated rule? The Petitioners' Proposed Final Order identifies the Agency's use of limited InterQual criteria to determine medical necessity as an issue in this proceeding. But the Petition for Determination of Invalidity of Non-Rule Policy does not raise this issue. Neither party's pre-hearing statement identifies it as an issue. Consequently, this Order does not consider or determine whether the Agency's limitation on the use of InterQual criteria is an "unpromulgated rule."
Findings Of Fact Proceedings Before the Division of Administrative Hearings and the First District Court of Appeal In the beginning this was an action by the Hospitals aimed at stopping Agency efforts to recoup reimbursement of Medicaid payments to the Hospitals for emergency services provided to undocumented aliens once the patients have reached a point of “stabilization.” The issue of whether the Agency could apply the “stabilization” standard to the Hospital claims for Medicaid payment for services provided indigent aliens recurred in Agency claims against hospitals throughout the state to recoup Medicaid payments. Hospitals challenged Agency claims in individual proceedings under section 120.569, which the Agency referred to the Division for disputed fact hearings. Duane Morris, LLP (Duane Morris), led by Joanne Erde, represented the hospitals in the individual proceedings. The Hospitals collectively engaged Duane Morris to represent them in this proceeding challenging the Agency’s stabilization standard as an unpromulgated rule. Joanne B. Erde, Donna Stinson, and Harry Silver were the Hospital’s lawyers in this proceeding. Ms. Erde is an experienced lawyer who has focused her practice in health care. Ms. Stinson is an experienced lawyer who concentrated her practice in health care and administrative law litigation before the Division. The Agency does not question their expertise. Mr. Silver is an experienced lawyer with no Florida administrative law experience. His role in the case was minimal. Depositions taken in one of the individual reimbursement cases were significant evidence in this proceeding. Those depositions make it clear that the Hospitals’ counsel was tuned into the unpromulgated rule issue and using discovery in that case to gather and identify the evidence that they would need in this case. Representation of the Hospitals in individual reimbursement actions provided Hospitals’ counsel the advantage of preparing with level of detail before filing the petition. The engagement letters recognize this stating: “We have an understanding of the facts underlying this matter and have substantial knowledge concerning the law governing the issues in this case.” This well-developed understanding of the facts should have minimized the need for discovery and preparation in this proceeding. Counsel were well positioned to prosecute this matter efficiently. Likewise, counsel’s “substantial knowledge concerning the law governing the issues in this case” should have minimized the need for time spent in research. This is not what happened. The pre-existing representation in the reimbursement cases provided another obvious and significant benefit to the Hospitals and their counsel. Since counsel represented the individual hospital in the separate reimbursement matters, the Hospitals could band together to jointly finance one case that would resolve the troublesome point of “stabilization” issue more consistently and more cheaply than if they litigated it in each and every case. As the basically identical engagement agreements between each hospital and counsel state: “Because many hospitals’ interests in [sic] are similar or identical as it relates to the Alien Issue and in order to keep legal costs to a minimum, each of the participants in the [hospital] Group will [sic] have agreed that it wishes this firm to represent them in a Group.” Because of counsel’s pre-existing relationships with the Hospitals, litigating this matter should have continued or enhanced the client relationships. The time required for this matter could not result in lost business opportunities. In fact, by consolidating the issues common to all the clients and their cases, counsel freed up time to work on other matters. Presentation of the issue for resolution in a single case also saved the Hospitals the greater cost of disputing the issue in each case where the Agency sought reimbursement. The Hospitals and counsel dealt with the only possible downside of the representation by including disclosures about joint representation and a waiver of conflict claims in the engagement letters. This was not a contingent fee case. The agreement provided for monthly billing and payment from counsel’s trust account. Each group member made an initial payment of $10,000 to the trust account. Any time the trust account balance dipped below $15,000, each group member agreed to contribute another $10,000 to the trust account. For counsel, this representation was about as risk free as a legal engagement can be. The Hospitals and their counsel knew from the outset that they would have to prove their reasonableness of their fees and costs if they prevailed and wanted to recover fees. The Petition for Determination of Invalidity of Non-Rule Policy seeks an award of fees and costs. They could have adjusted their billing practices to provide more detail in preparation for a fees dispute. An "unpromulgated rule challenge" presents a narrow and limited issue. That issue is whether an agency has by declaration or action established a statement of general applicability that is a "rule," as defined in section 120.52(16), without going through the required public rulemaking process required by section 120.54. The validity of the agency's statement is not an issue decided in an "unpromulgated rule challenge." Courts have articulated the legal standards for unpromulgated rule challenges frequently. See, e.g., Coventry First, LLC v. Off. of Ins. Reg., 38 So. 3d 200, 203 (Fla. 1st DCA 2010); Dep’t of Rev. v. Vanjaria Enters., 675 So. 2d 252 (Fla. 5th DCA 1996); and the cases those opinions cite. The facts proving the “stabilization” standard were easy to establish. Many Agency documents stated the shift to the “stabilization” standard. Documents of Agency contractors did also. Two examples of how clear it was that the Agency was applying a new standard were the Agency’s statements in its 2009-2010 and 2010-2011 reports to the Governor on efforts to control Medicaid fraud and abuse. The reports describe the “stabilization” standard as “more stringent” and certain to recover millions of dollars for the Agency. As the Agency’s reports to the Governor indicate, the stakes were high in this matter. For the Hospitals and other hospitals collectively affected by the Agency’s effort to recoup past payments by applying the “stabilization” standard, $400,000,000 was at stake. This matter did not present complex or difficult issues, legally or factually. The Order of Pre-Hearing Instructions requiring parties to disclose documents and witnesses and update the disclosures alleviated the discovery demands present in other litigation. The Agency’s failure to fully comply with the pre- hearing instructions and unfounded Motion in Limine added some additional time demands for the Hospital’s counsel. Nonetheless the issues were narrow, and the facts were essentially undisputed, if not undisputable. This matter did not require extraordinary amounts of time for discovery or preparation. Ordinarily challenges to rules or unpromulgated rules impose time pressures on the attorneys because of the requirement in section 120.56 that the hearing commence within 30 days of assignment to the Administrative Law Judge. The time constraint was not a factor in this case. The Hospitals requested waiver of the time requirement to permit more time for discovery. The Agency agreed, and the undersigned granted the request. Thus the Hospitals had the time their counsel said they needed to prepare for the hearing. The appeal imposed no time constraints. Both parties received extensions of time for their filings. Seventeen months passed between filing the notice of appeal and oral argument. Time for the Administrative Proceeding The total number of hours claimed for the services of the three lawyers, their claimed hourly rate, and the total fees claimed appear below. Joanne B. Erde 458.20 hours $550.00 rate $252,010.00 Donna Stinson 136.20 hours $455.00 rate $61,971.00 Harry Silver 93.40 hours $550.00 rate $51,370.00 Total 687.80 hours $365,351.00 The Hospitals’ counsel’s billing records are voluminous. For the proceeding before the Division, the Hospitals’ counsel’s invoices list 180 billing entries for the work of three lawyers. A substantial number of the entries are block billing. In block billing, all of a lawyer’s activities for a period of time, usually a day, are clumped together with one time total for the entire day’s service. It is an acceptable form of billing. But block billing presents difficulties determining the reasonableness of fees because a single block of time accounts for several different activities and the invoice does not establish which activity took how much time. Here are representative examples of the block billing entries from the Division level invoices: August 20, 2012 (Erde) – Conference call with ALJ; telephone conference with AHCA attorney; telephone conference with newspaper reporters – 2.0 hours September 16, 2012 (Erde) – Review depositions; prepare opening remarks; develop impeachment testimony – 5.50 September 27, 2012 (Erde) – Intra-office conference; finalize interrogatories; work on direct – 8.50 October 2, 2012 (Stinson) – Review and revise Motion in Limine; Telephone conferences with Joanne Erde and Harry Silver; review emails regarding discovery issues - `2.60 October 19, 2012 (Erde) – Intra-office conference to discuss proposed order; Research Re: other OIG audits; research on validity of agency rules – 2.10 hours November 9, 2012 (Erde) – Conference with ALJ; Intra-Office conference to discuss status; further drafting of proposed order – 7.70 hours. November 19, 2012 (Stinson) – Final Review and Revisions to Proposed Final order; Telephone conferences with Joanne Erde to Review final Changes and comments; Review AHCA’s proposed order and revised proposed order – 3.20 hours. Many of the entries, block or individual, do not provide sufficient detail to judge the reasonableness of the time reported. “Prepare for deposition and hearing,” “review depositions,” “review new documents,” “review draft documents,” “intra-office conference” and “attention to discovery” are recurrent examples. Senior lawyers with more expertise and higher billing rates are expected to be more efficient. This, the fact that the matter was not complicated, the relative simplicity of the issue, and the fact that the Hospitals’ counsel already had a great deal of familiarity with the facts and law involved, all require reducing the number of hours compensated in order for them to be reasonable. For this matter, in these circumstances, the claimed number of hours is quite high. The claimed 687.80 hours amounts to working eight hours a day for 86 days, two of which were the hearing. This is not reasonable. A reasonable number of hours for the proceedings before the Division is 180. That is the equivalent of 22.5 eight-hour days. That is sufficient to handle the matter before the Division from start to finish. The number includes consideration of the worked caused by the needless difficulties presented by the Agency in discovery and with its Motion in Limine. Time for the Appellate Proceeding The fees that the Hospitals seek for the appeal are broken down by hours and rates as follows: Joanne B. Erde 255.10 hours $560.00 $142,856.00 Joanne B. Erde 202.80 hours $580.00 $117,624.00 Donna Stinson 88.50 hours $460.00 $40,710.00 Donna Stinson 67.10 hours $500.00 $33,550.00 W.D. Zaffuto 48.30 hours $435.00 $21,010.50 Rob Peccola 10.90 hours $275.00 $2,997.50 Rob Peccola 17.50 hours $300.00 $5,250.00 L. Rodriguez- Taseff 6.20 hours $520.00 $3,224.00 L. Rodriguez- Taseff 19.50 hours $545.00 $10,627.50 Rachel Pontikes 38.20 hours $515.00 $19,673.00 Total 754.10 hours $397,522.50 For the appellate proceeding, the invoices present 341 entries, a substantial number of which are block billing for work by six lawyers. Here are representative examples from the appellate level invoices: May 16, 2013 (Erde) – Reviewed AHCA’s initial brief; intra- office conference to discuss; preliminary review of record – 2.90 May 24, 2013 (Erde) – Intra-office conference to discuss response to brief; preparation to respond to brief – 2.50 May 30, 2013 (Erde) – Attention to Appeal issues; finalize request for extension; brief research re jurisdictional issues – 1.60 June 18, 2013 (Peccola) – Strategy with J. Erde regarding research needs; review/analyze case law cited in answer brief; conduct legal research regarding documentary evidence and exhibits on appellate review; write email memo to J. Erde regarding same – 2.00 July 19, 2013 (Zaffuto) – Revise/draft Answer Brief; discuss extension of time with H. Gurland; research appellate rules regarding extension of time and staying proceedings pending ruling on motion; review appendix to answer brief; instructions to assistant regarding edits and filing of answer brief and appendix prepare answer brief for filing; call to clerk regarding extension of time review initial brief by AHCA and final order by ALJ – 5.50 August 14, 2013 (Erde) – Intra-office conference to discuss brief; further revised brief – 5.80 August 15, 2013 (Stinson) Reviewed appellees' answer brief; discussed language in answer brief with Joanne Erde – 2.50 October 9, 2013 (Stinson) – Review draft motion to relinquish regarding admission of exhibit; exchange e-mails with Joanne Erde; telephone conference with Joanne Erde – 1.60 October 10, 2013 (Erde) – Attention to new motion re relinquishing jurisdiction; review of revisions; further revisions – 6.00 October 30, 2013 (Erde) – Research re: AHCA’s current behavior; intra-office conference to discuss status of action at DOAH - .70 November 7, 2013 (Peccola) – Strategy with J. Erde regarding Appellees’ response in opposition to Appellant’s motion for supplemental briefing; conduct research regarding same; draft same; look up 1st DCA local rule on appellate motions and email same to J. Erde – 3.60 December 5, 2013 (Erde) – Research Re: supplemental briefing issues; research to find old emails from AHCA re: inability to produce witnesses -.90 January 21, 2014 (Rodriguez-Taseff) – Working on Supplemental Answer Brief – legal argument re authentication and cases distinguishing marchines [sic]; editing facts – 6.70 February 3, 2014 (Erde) – Review and revise response to motion for further briefing; intra-office conference to discuss same – 2.20 May 2, 2014 (Pontikes) – Continue to review relevant case law regarding the definition of an unpromulgated rule; continue to analyze the briefs and the arguments; continue to draft an outline of the argument discussed – 5.00 June 5, 2014 (Erde) – draft email to group regarding AHCA’s settlement offer; reviewed supplemental settlement offer from AHCA; draft email to group re same – 1.70 June 11, 2014 (Erde) – Attention to finalizing response to AHCA’s notice of dismissal and filing of fee petition; memo to members of group – 8.00 July 21, 2014 (Erde) – completed motion for rehearing re: fees as sanctions; drafted status report for DOAH regarding status of DCA opinion; drafted status report in companion case; emails with AHCA re: withdrawing pending audits – 6.90 July 21, 2014 (Peccola) – Strategy with D. Stinson and J. Erde regarding motion for rehearing; revise/edit same; review/revise edit notices in trial court 1.20. The descriptive entries in the invoices for the appellate representation also lack sufficient detail. Examples are: “begin preparation to respond to AHCA”s brief,” “attention to appeal issues,” “preparation to draft answer brief,” and “research and draft answer brief.” For the appellate proceedings, Duane Morris added four lawyers, none with experience in Florida administrative or appellate matters. W.D. Zaffuto, L. Rodriguez-Taseff, and Rachel Pontikes are senior level lawyers in Duane Morris offices outside of Florida. Rob Peccola is a junior level lawyer from a Duane Morris office outside of Florida. The apparent result is those lawyers spending more time on issues than the more experienced Ms. Erde and Ms. Stinson would. One example of this is a July 19, 2013, billing entry where a lawyer spent time researching “appellate rules regarding extension of time and staying proceedings pending ruling on motion.” The two lawyers primarily responsible for this matter, both laying claim to Florida appellate expertise, would only need to quickly check the Florida Rules of Appellate Procedure to confirm their recollection of the rules, something that would probably take less time than it took to make the time entry and review the draft bill. Hospitals’ also filed a puzzling motion that presents a discreet example of needless attorney time billed in this matter. The Hospitals expended 21.8 hours on a Motion for Rehearing of the court’s order awarding them fees and costs. The court’s opinion and the Final Order stated that fees and costs were awarded under section 120.595(4)(a), Florida Statutes. Yet the Hospitals’ motion fretted that fees might be assessed under section 120.595(4)(b), which caps fees at $50,000. The court denied the motion. Two things stand out when reviewing the invoices for the appellate proceeding. The first is that the appeal took more hours than the trial proceeding. A trial proceeding is generally more time-consuming because of discovery, a hearing much longer than an oral argument, witness preparation, document review, and preparing a proposed order. The second is the sheer number of hours. Hospitals’ counsel seeks payment for 754.10 hours in the appellate proceeding. This is 66.3 more than for the Division proceeding. It included a two day hearing, trial preparation, research, and preparing a 37 page proposed final order. In eight-hour days the claimed hours amount to a staggering 94.26 days. That amounts to one lawyer working on the appeal for eight hours a day for three months. Of this time, 613.5 hours were spent by Ms. Erde and Ms. Stinson, lawyers with expertise in the subject area, who had prepared the case for hearing, who participated in the hearing, who closely reviewed the entire record for preparation of their proposed final order, who researched the issues before the hearing and for the proposed final order, and who wrote the proposed final order. With all this knowledge and experience with the record and the law, handling the appeal should have taken less time than the proceeding before the Division.2/ One factor supports the appellate proceeding taking as many hours, or a few more hours, than the administrative proceeding. It is the Agency’s disputatious conduct over a scrivener’s error in the Final Order which erroneously stated that the Agency’s Exhibit 1 had been admitted. The Agency’s conduct increased the time needed to represent the Hospitals in the appeal. The Agency relied upon the exhibit in its initial brief, although it twice cited page 359 of the transcript where the objection to the exhibit was sustained. Also the Agency’s and the Hospitals’ proposed final orders correctly stated that Agency Exhibit 1 had not been admitted. The Hospitals’ Answer Brief noted that Agency Exhibit 1 had not been admitted. The transcript of the final hearing and both parties’ proposed final orders were clear that the exhibit had not been admitted. Yet the Agency argued in its Reply Brief that it had been. This required the Hospitals to move to remand the case for correction of the error. The Agency opposed the motion. The court granted the motion. The Final Order was corrected and jurisdiction relinquished back to the court. The Agency used this as an opportunity to trigger a new round of briefing about whether Exhibit 1 should have been admitted. This has been considered in determining the reasonable number of hours for handling the appeal. A reasonable number of hours for handling the appeal is 225. Converted to eight-hour days, this would be 28.13 days. For the appeal, Duane Morris attributes 28.4 hours of the work to a junior lawyer. This is 3.8 percent of the total time claimed. Applying that percentage to 225 hours, results in 8.6 hours attributed to the junior lawyer with the remaining 216.45 hours attributed to senior lawyers. Attorneys and Fees Each party presented expert testimony on the issues of reasonable hours and reasonable fees. The Agency presented the testimony of M. Christopher Bryant, Esquire. The Hospitals presented the testimony of David Ashburn, Esquire. As is so often the case with warring experts, the testimony of the witnesses conflicts dramatically. Mr. Bryant opined that a reasonable rate for senior lawyers, such as Ms. Erde and Ms. Stinson, ranged between $350 and $450 per hour. The reasonable rate for junior lawyers was $200 per hour. Mr. Ashburn opined that the reasonable hourly rate for senior lawyers ranged between $595 and $700 and the reasonable rate for junior lawyers was between $275 and $300. The contrast was the same for the opinions on the reasonable number of hours needed to handle the two stages of this litigation. Mr. Bryant testified that the administrative proceeding should have taken 150 to 170 hours and that the appeal should have taken 175 to 195 hours. Mr. Ashburn testified that the Hospitals’ claimed 687 hours for the proceeding before the Division and 754.10 hour for the appellate proceeding were reasonable. The Hospitals argue that somehow practicing in a large national law firm, like Duane Morris justifies a higher rate. The theory is unpersuasive. A national law firm is nothing special. There is no convincing, credible evidence to support a conclusion that lawyers from a national firm in comparison to smaller state or local firms provide better representation or more skilled and efficient lawyering that justifies a higher rate. Based upon the evidence presented in this record, a reasonable rate for the senior lawyers participating in this matter is $425 per hour. A reasonable rate for the junior lawyer participating in this matter is $200.00. Fee Amounts A reasonable fee amount for representation in the proceeding before the Division of Administrative Hearings is $76,500. A reasonable fee amount for the proceeding before the First District Court of Appeal is $93,701.25. Costs Hospitals seek $6,333.63 in costs. The evidence proves these costs are reasonable. The Agency does not dispute them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 475.25(1)(f), Florida Statutes, and that Respondent's real estate broker license be suspended for a period of six months. DONE and ENTERED this 12th day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1982.
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.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: On January 27, 1986, the Petitioner, Gary J. Anthony, submitted an application for examination as a limited surety agent (bail bondsman) with the Department of Insurance and Treasurer. By letter dated August 27, 1986, the Respondent denied Anthony's application, stating in part that: your Application for Examination as a Limited Surety Agent must be denied because your history of arrests and charges indicates a person of untrustworthiness and lack of high character and approved integrity. On August 26, 1986, the Petitioner was arrested in Connecticut and charged with the felony offense of aggravated assault. The Petitioner was subsequently convicted of misdemeanor assault. In 1970, the Petitioner was arrested by civilian authorities and surrendered to military authorities for an alleged 5 day unauthorized absence. There was no evidence as to what action, if any, the military took with regard to this alleged offense. The Petitioner subsequently received an honorable discharge for his service with the United States Marine Corps. On June 27, 1972, the Petitioner was arrested in Connecticut and charged with the felony offense of assault in the first degree. The Petitioner was subsequently convicted of misdemeanor assault. On December 23, 1974, the Petitioner was arrested and charged with assault and battery in the Municipal Court of the City of Vero Beach, Florida. A nolle prosequi was entered by the City of Vero Beach in regard to this offense. On November 3, 1975, the Petitioner was charged by Information with disorderly intoxication in St. Lucie County, Florida. After a jury trial, the Petitioner was found not guilty. On July 18, 1980, the Petitioner was charged by Information with burglary, false imprisonment, aggravated battery and possession of a firearm while engaged in a felony offense in Broward County, Florida. A nolle prosequi was entered by the State Attorney's Office as to each charge. On June 17, 1981, the Petitioner was charged by Information with disorderly conduct by fighting in Indian River County, Florida. The Petitioner was subsequently convicted of the misdemeanor offense of disorderly conduct. On February 3, 1982, the Petitioner was arrested and charged with battery in Indian River County, Florida. The charges stemmed from a shoving match between the Petitioner and another customer at a Maryland Fried Chicken Store. Although the Petitioner entered a plea of no contest to the misdemeanor offense of battery, there was no evidence indicating whether or not the court entered an adjudication of guilt. On February 24, 1982, the Petitioner was charged by Information with obstruction of justice in Indian River County, Florida. A nolle prosequi was entered by the State Attorney's Office as to this charge. On May 20, 1982, the Petitioner was charged by Information with burglary of a structure while armed with intent to commit assault, shooting into an occupied dwelling, and aggravated assault with a deadly weapon in Indian River County, Florida. After a jury trial, the Petitioner was found not guilty of all charges. The Petitioner has never pled guilty or no contest to, and has never been convicted of a felony. The Petitioner has been convicted of 3 misdemeanor offenses, once of disorderly intoxication (1981) and twice of misdemeanor assault (1972 and 1968). The Petitioner indicated on his application for examination as a limited surety agent that he had been charged with a felony offense on 3 occasions. The Petitioner neglected to include the Connecticut felony charges which occurred in 1968 and 1972. The Petitioner's failure to include this information was an oversight and unintentional. The Petitioner resides in Vero Beach, Florida, and has lived there since 1973. The Petitioner is self-employed as a automobile dealer. Mark Gibbons, a fifteen-year veteran detective with the Indian River County Sheriff's Department has worked personally with the Petitioner for the past three years. Whenever the sheriff's office needs unmarked automobiles, Gibbons can rely on the Petitioner to loan vehicles from his car lot. The Petitioner has been familiar with some major undercover operations in Vero Beach and the operations have always remained secret. Gibbons' opinion is that the Petitioner is trustworthy and honest and has high moral character. Gibbons is familiar with the Petitioner's reputation in the community and among the detectives in the sheriff's office and the Petitioner's reputation is good. Richard P. Breen, the director of the City of Vero Beach Airport, has known the Petitioner for approximately four years on a casual, social basis. Prior to becoming the director of the city airport, Mr. Breen worked for 20 years with the Federal Communications Commission in Washington, D.C., as an attorney. Breen's opinion is that the Petitioner is trustworthy and honest and has very good integrity. Edward Bogan, a certified public accountant, does accounting work for the Petitioner's automobile business and has known the Petitioner for about 10 years. Bogan's opinion is that the Petitioner is trustworthy and honest and a man of high integrity. Bogan has never known the Petitioner to do anything dishonest or illegal with regard to his business financial records. Richard Appell, Jr., is an assistant vice-president of the Barnett Bank in Indian River County and has known the Petitioner for about 3 years. Appell is a consumer lending officer in charge of indirect lending. In indirect lending, the bank sets up arrangements with car dealerships to do financing of cars that the dealerships sell to individuals. Appell has contact with the Petitioner on a weekly basis involving indirect lending. The Petitioner frequently takes credit applications completed by customers to Appell and requests financing or indirect lending. Appell's opinion is that the Petitioner is honest and trustworthy and of high character. Appell and the Barnett Bank have never had any problems with the Petitioner misrepresenting cars, down payments or amounts financed. When the bank approves an indirect lending transaction, it must rely on the integrity of the dealer because the bank does not see the car or the customer. Ben Russo, the owner of a Dodge automobile dealership in Vero Beach, has known the Petitioner for about 15 years. Russo first met the Petitioner through buying and selling used cars in the Vero Beach area. Because of their common business, Russo has contact with the Petitioner about every other day. In Russo's opinion, the Petitioner is trustworthy and honest and has high moral character. Terrence O'Brien, City Attorney for the City of Vero Beach, has known the Petitioner on a social basis for about six years. In O'Brien's opinion, the Petitioner is honest and trustworthy. Robert J. Vatland, president of Vatland Oldsmobile, Inc., in Vero Beach, has known the Petitioner for approximately 10 years. In all of their business transactions, the Petitioner has been honest and has always exercised good judgment. Casper W. Maier, sales manager for Ennessy Buick- Cadillac, Inc., in Vero Beach, has done business with the Petitioner since 1979. In all of their business transactions, the Petitioner has been honest and sincere. In Maier's opinion, the Petitioner is honest and trustworthy. Dennis Widenhoffer, assistant manager at Firestone Service Center in Vero Beach, has known the Petitioner on a business and social basis for about 10 years. The Petitioner has been honest and fair in all of his transactions with Widenhoffer. John Purdy, a superintendent for Reynolds, Stalls and McClain Drywall Company has known the Petitioner for about 20 years and is a close personal friend of the Petitioner. Purdy sees the Petitioner on a social basis about once each week. In Purdy's opinion, the Petitioner is honest and trustworthy and has high moral character. American Bankers, Inc., has entered into an agreement to write the bonds for the Petitioner if Petitioner becomes a licensed bail bondsman. The Petitioner is honest and trustworthy and has high moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Gary J. Anthony, be allowed to take the examination for limited surety agent and if he passes the examination, be eligible for licensure as a limited surety agent. DONE AND ENTERED this 14th day of January, 1987, at Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3620 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Note: The Petitioner's first Finding of Fact was numbered 6.). Addressed in Procedural Background section of Recommended Order. Adopted in substance in Findings of Fact 17, 18, 19 20 and 26. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 24. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Addressed in Procedural Background section. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in substance in Findings of Fact 17, 18, 19, 20 and 26. Rejected as subordinate. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 4. Adopted in Finding of Fact 27. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 3 through 13. Adopted in Finding of Fact 15. Rulings on Proposed Findings of Fact submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Rejected as misleading and/or not supported by the weight of the evidence. 9. Rejected as subordinate. 10. Adopted in substance in Finding of Fact 3. 11. Adopted in substance in Finding of Fact 4. 12. Adopted in substance in Finding of Fact 5. 13. Adopted in substance in Finding of Fact 6. 14. Adopted in substance in Finding of Fact 7. 15. Adopted in substance in Finding of Fact 8. 16. Adopted in substance in Finding of Fact 9. 17. Adopted in substance in Finding of Fact 11. 18. Adopted in Substance in Finding of Fact 12. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as subordinate and/or a recitation of testimony. COPIES FURNISHED: Clifford M. Miller, Esquire Miller & Miller 601 21st Street, Suite 408 Vero Beach, Florida 32960 Lealand L. McCharen, Esquire 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
