Findings Of Fact Respondent is duly registered as a real estate salesman and as a broker by Florida Real Estate Commission. On his application for registration as a salesman, in answer to question 9 on the application as to whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, he answered "yes" and completed the "If yes, state details in full" part of the question with "traffic citation (speeding) 1970." On his application for registration as a broker some 16 months later he answered Question 9 "no". Exhibit 2, a certified copy of the court of record of Broward County, shows that on April 28, 1970, Respondent pleaded nolo contendere to the offense of attempted bookmaking and was fined $50. When questioned by the investigator for the Florida Real Estate Commission prior to the filing of this information, Respondent admitted that he had been arrested in California in 1960 and 1961 on charges of suspicion of assault and a traffic offense involving driving while under the influence of intoxicants. Testifying in his own behalf Respondent acknowledged that he had inadvertently failed to include those arrests on his application, and that in so doing he had no intention to conceal those arrests. The arrests for suspicion of assault involved a marital dispute with his former wife and those charges were dismissed. On the DWI charge he was fined $150. The breathalizer test he had taken was borderline and he was advised by the Public Defender that if he pleaded guilty he would be fined $150 as a first offender and if he employed the services of a lawyer to contest the charge the attorney's fee would be at least $250. He pleaded guilty to the charge. The attempted bookmaking arrest occurred while he was working in a bar in Deerfield Beach. The police suspected this bar was involved in bookmaking. Fetters had worked there only a week or two when two undercover agents, who had patronized the bar on a daily basis for several days, asked him to place a bet for them. He told them he had no information on how to place a bet, but after they insisted he took their money and made a call to someone he knew in Miami. The undercover agents then identified themselves and arrested him. Respondent holds a Cosmetology license in California, and an insurance salesman's license. He is currently working for Nichols' Realty in Boca Raton. His broker, Roy Nichols, has known Respondent for about three years and Respondent's reputation in the community is excellent. He has found Respondent's conduct exemplary both as a real estate salesman and as a family man.
Recommendation This case cane before the undersigned Hearing Officer, Division of Administrative Hearings on the Administrative Complaint by the Florida Real Estate Commission against the Respondent, Joyce H. Clemenz, charging her with being guilty of dishonest dealing, trick, scheme, device or breach of trust in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The charges in the Complaint stem out of allegations that the Respondent made personal long distance phone calls while employed as a real estate salesman. This case was noticed for hearing at the Offices of the Florida Real Estate Conssion, Coral Gables, Florida, and was heard on May 26, 1976. At that hearing the Respondent appeared and stated that she had not received Notice of Hearing, however, she waived the objection she might have had to that and agreed to proceed with the hearing. At that hearing the Real Estate Commission failed to present competent evidence which would support the statement of facts contained in the Information filed by the Real Estate Commission. One witness testified, Rose Marie George, an employee of the Magnuson Corporation, with whom the Respondent had been employee and to whom she is alleged to have charged these personal phone calls. Mrs. George stated that she receives the accounts payable for the Magnusom Corporation and that on several occasions makes note of unusually high telephone charges. She stated that she had been told that the Respondent had made some personal phone calls which were charged to the Magnusom Corporation. Mrs. George did not testify as to whether the Respondent made these telephone calls without permission or whether she had reimbursed the corporation for those calls. Furthermore, Mrs. George's testimony, except for that part which relates to her own responsibilities, was pure, unsubstantiated hearsay and cannot be the basis for any findings of fact relative thereto. See Subsection 120.58(1)(a), Florida Statutes. The only other item of evidence which the Real Estate Commission attempted to submit was a certified copy of the Judgment of the County Court for Dade County relating to the same transactions as described in the Administrative Complaint. The above exhibit was marked Petitioner's Exhibit No. 2 and was not admitted by this Hearing Officer for the reason that a Judgment in a civil action is not admissible in another proceeding to establish the truth of the allegations therein inasmuch as the Real Estate Commission produced no other evidence relative to this matter, it is the finding of this Hearing Officer that there was a complete absence of any substantial evidence which might support the truth of the allegations in the information filed by the Real Estate Commission and it is, therefore, RECOMMENDED that the Complaint issued in this matter be dismissed. DONE and ORDERED this 14th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Joyce H. Clemenz Post Office Box 431539 South Miami, Florida 33143
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 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
The Issue The issue is whether Respondent should pay Petitioner's attorney's fees and costs, and, if so, the amount.
Findings Of Fact Mayor Osborne was the Mayor of Beverly Beach, Florida, during 1999 through 2001. Dr. Milanick was a dentist who owned property immediately north of Beverly Beach, Florida. Dr. Milanick desired that the property be annexed into the town and initiated annexation proceedings before the City of Beverly Beach. Mayor Osborne did not facilitate the requested annexation during the time he served as Mayor of Beverly Beach. Dr. Milanick alleged to the Commission that Mayor Osborne opposed the annexation for personal, financial gain. In order to defend himself against these false allegations, Mayor Osborne retained Robert J. Riggio, Esquire, of the Riggio and Mitchell firm of Daytona Beach. The Original Award of Attorney's Fees An award of attorney's fees and costs in favor of Mayor Osborne was recommended in Division of Administrative Hearings Case No. 04-4110E. The Recommended Order stated that the amount of attorney's fees and costs for Mayor Osborne to defend against Dr. Milanick's allegations was $4,976.00. The Commission did not address the amount of attorney's fees and costs in its Final Order, but instead held that Mayor Osborne was not entitled to any award. Subsequently, the Fifth District Court of Appeal found the Commission's Final Order to be erroneous and remanded the matter ". . . for entry of an order making the awards recommended by the ALJ." A Mandate with regard to the Fifth District Court of Appeal issued April 11, 2007. The award recommended by the ALJ was, as stated above, $4,976.00, and that amount should be awarded by the Commission in a Final Order. Appellate Attorney's Fees Mayor Osborne filed a Motion for Petitioner's Appellate Attorneys' Fees and Costs before the Commission on May 10, 2007, noting the Fifth District Court of Appeal, in its Order dated February 16, 2007, stated that, "Appellant's Motion For Attorney's Fees, filed May 16, 2006, is granted and the above- styled cause is hereby remanded to the Commission . . . to determine and assess reasonable attorney's fees for this appeal." The Fifth District Court of Appeal addressed only attorney's fees. However, because Mayor Osborne's Motion sought both attorney's fees and costs, and because the Commission sent that Motion without special directions to the Division of Administrative Hearings for resolution, it is found that the Administrative Law Judge has jurisdiction to recommend awards of both attorney's fees and costs expended in prosecuting the appeal. David C. Robinson, an attorney in Daytona Beach, Florida, testified as an expert on attorney's fees in Volusia County, Florida. He has practiced law in Daytona Beach for 26 years and has testified in other attorney's fees cases. He is familiar with the fees charged by attorneys in the Daytona Beach and Volusia County area. He knows Attorney Robert Riggio, of Daytona Beach, Volusia County, and Attorney Martin Pedata, of Deland, a town that is also located in Volusia County. Mr. Robinson is found to be an expert on the subject of reasonable attorney's fees and costs in Volusia County. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne as to the appellate filings made by Mr. Riggio. In doing so he considered the Lodestar approach as described in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Mr. Robinson opined that the services performed by Mr. Riggio in the appellate proceeding were provided in a manner that an attorney would be reasonably expected to provide. He reviewed the hourly rate charged by Mr. Riggio and stated that the reasonable rate should be $250.00 per hour, but that Mr. Riggio only charged $150.00 per hour. Mr. Riggio's law firm, Riggio and Mitchell, billed Mayor Osborne for 95 hours. A small portion of the work was accomplished by his partner Jerome D. Mitchell. Other work in the amount of 9.4 hours was billed for paralegal work at $40.00 per hour. The 95 hours of attorney work was billed at $150.00 per hour for a total of $14,250.00, and the paralegal work totaled $376.00. Costs amounted to $859.70. This resulted in a total of $14,626.00 for fees and $859.70 in costs. Mayor Osborne paid these charges in full. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. As a result of Mr. Riggio's efforts, Mayor Osborne prevailed in the appeal. It is found that Dr. Milanick caused Mayor Osborne to pay attorney's fees and costs in the amount of $15,485.70. Proving Entitlement to Fees and Costs Subsequent to Dr. Milanick's allegations of misconduct before the Commission, and after an investigation, the Commission, in a Public Report dated September 8, 2004, dismissed the complaint on a finding of no probable cause in the case of Mayor Osborne. Pursuant to Subsection 112.317(8), Florida Statutes, Mayor Osborne was entitled to be reimbursed for the attorney's fees and costs associated with defending himself against Dr. Milanick's allegations. Because Dr. Milanick did not voluntarily remit the fees and costs expended, a hearing was required. A hearing was held in this matter in Daytona Beach, Florida, on May 11, 2005. The hearing in Division of Administrative Hearings Case No. 04-4110FE, lasted an entire day. Prior to the hearing, Mayor Osborne engaged the services of Attorney Martin Pedata in addition to those provided by Mr. Riggio. The agreement for representation by Mr. Pedata was reduced to writing on April 6, 2005. The agreement provided that Mayor Osborne would pay Mr. Pedata $250.00 per hour for his services and $75.00 per hour for paralegal services. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne for the preparation for and the conduct of the hearing of May 11, 2005. Mr. Robinson stated that the hourly rate of $250.00 was a reasonable one for the type of services provided by Mr. Pedata. He stated that the number of hours expended by Mr. Riggio and Mr. Pedata in connection with this hearing was reasonable. In analyzing this claim he used the Lodestar approach set forth in Rowe. Mr. Riggio and his partner Mr. Mitchell, expended 160.6 hours proving entitlement to fees and costs. Mr. Pedata, as lead attorney in the entitlement case, expended 107 hours. In addition, 54.2 paralegal hours were expended in proving the entitlement case. These hours include the time up to the filing of the appeal with the Fifth District Court of Appeal. These hours also include the time spent before the Commission. As a result of the efforts of Mr. Riggio and Mr. Pedata, Mayor Osborne prevailed in the entitlement hearing, which resulted in a Recommended Order in his favor. Mayor Osborne paid Mr. Riggio and Mr. Pedata a total of $50,840.00 for their services in proving entitlement to attorney's fees. He also paid $2,168.00 for paralegal services. Total costs amounted to $3,764.73, which Mayor Osborne paid. The total fees and costs to Mayor Osborne was $56,772.73. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. It is found that Dr. Milanick was responsible for Mayor Osborne having to pay attorney's fees and costs in the amount of $56,772.73. Additional fees and costs Mr. Riggio presented Mayor Osborne with an invoice in the amount of $2,370.00 for the cost of the current proceeding. However, the Administrative Law Judge is without jurisdiction to address this claim in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics award attorney's fees and costs as follows: The original award of attorney's fees in the amount of $4,976.00. Attorney's fees and costs for appellate attorney's fees and costs in the amount of $15,485.70. Attorney's fees and costs for proving entitlement to fees and costs in the amount of $56,772.73. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 14th day of November, 2007. COPIES FURNISHED: Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Dr. Alexander J. Milanick 7250 A1A South St. Augustine Shores, Florida 32080 Phillip C. Claypool, Executive Director and General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Whether Respondent obtained his registration as a real estate salesman by means of fraud, misrepresentation, or concealment. On October 14, 1976, Petitioner's Administrative Complaint was sent by registered mail to the Respondent at his designated address: Post Office Box 805, U.S. Highway 52 West, Dade City, Florida 33525. A return receipt signed by the Respondent showed date of delivery as October 26, 1976. (Exhibit 1) However, Respondent did not execute and return an enclosed Election of Rights form that accompanied the Administrative Complaint wherein he could have indicated his desires as to an administrative hearing. Nevertheless, Petitioner requested that a Hearing Officer be appointed in the matter and issued a Notice of Hearing to Respondent at the same address by certified mail on January 19, 1977. This correspondence was returned by postal authorities as "Unclaimed" (Exhibit 2). An Order of the Hearing Officer changing the hour set for the hearing from 10:00 a.m. to 2:00 p.m. on February 15, 1977 was mailed to the Respondent on February 7, 1977. However, neither Mr. Bryant nor any representative in his behalf appeared at the hearing on February 15, 1977. It being determined that proper notice had been provided to the Respondent in accordance with Section 475.40 and Chapter 120, Florida Statutes, the Petitioner presented its evidence in uncontested proceedings.
Findings Of Fact Respondent filed his application for registration as a real estate salesman with Petitioner on October 10, 1972. He completed Question 9 therein in the following manner: "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted? Yes If yes, state details in full. Yes - See back of sheet" On the back of the application page, Respondent listed the following: "Have 2 traffic tickets, Pasco County, Dade City, Fla. - County Court Improper Passing Out of Date inspection sticker" Respondent was issued his registration as a salesman by Petitioner, effective January 29, 1973, Certificate Number 20527. The certificate was renumbered 0010908 when reissued in 1974 and 1975. It was issued again as "Non Active Salesman" on April 19, 1976 with expiration date March 31, 1978. (Composite Exhibit 3) Records of the Sheriff, Pasco County, show that the Respondent was arrested on six different occasions during the years 1961 to 1970. Five of these arrests were based on worthless check charges and one arrest was for failure to appear, as set forth in the Administrative Complaint of Petitioner. (Exhibit 4, Administrative Complaint) Respondent was charged on October 23, 1970 on an information of the State Attorney for the Sixth Judicial Circuit of Florida in and for Pasco County, Case Number 2010, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. He was also charged on October 23, 1970 in the same Judicial Circuit, Case Number 2011, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. (Exhibit 5)
Recommendation That the registration of Respondent Joseph M. Bryant as a non-active real estate salesman be revoked, pursuant to subsection 475.25(2), Florida Statutes. DONE and ENTERED this 24th day of February, 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32389 Mr. Joseph M. Bryant Post Office Box 805 U.S. Highway 52 West Dade City, Florida 33525
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
