Conclusions For Claimant: Daniel Harwin, Esquire Freedland Harwin Valori, P.L. 110 Southeast 6th Street, Suite 2300 Fort Lauderdale, Florida 33301 For Defendant: S. William Fuller, Jr., Esquire Hall Booth Smith, P.C. 200 West Forsyth Street, Suite 400 Jacksonville, Florida 32202
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
Findings Of Fact The Respondent, Alton Lynn Gillen, Jr., is a licensed Surety Agent doing business in the State of Florida. Respondent was charged by information, on or about December 23, 1980, in the Circuit Court of the Twentieth Judicial Circuit of the State of Florida, with a violation of the Racketeering Influenced and Corrupt Organization Act and with conspiracy to traffic in cannabis. On February 5, 1981, Respondent pled nolo contendere to the charges contained in the information. On May 13, 1981, an Order was entered in the Circuit Court of the Twelfth Judicial Circuit in and for Lee County, Florida, adjudicating Respondent guilty of a violation of the Racketeering Influenced and Corrupt Organization Act and of conspiracy to traffic in cannabis. Respondent was sentenced by the same order to state prison for a period or term of ten years. Respondent, having reserved his right to appeal as a condition of the nolo contendere plea, thereafter appealed this conviction and is currently awaiting its determination. Respondent, through his attorney, contacted Petitioner to ascertain whether or not he would be permitted to continue operating under his license after adjudication of guilt and while his appeal was pending. In a telephone conversation between Respondent's attorney and Onez O'Neill, Chief of Bureau of Licensing, on February 20, 1981, Respondent was advised that once the Department received formal notice of the convictions, a revocation proceeding would probably be instituted, but that his license would be reinstated upon receipt by the Department of certified copies of the information, judgment and sentence, and notice of appeal. Within a few days after being adjudicated guilty (May 13, 1981), Respondent obtained certified copies of those documents, as well as certified copies of notice of appearance by the appellate attorney, motion for supersedeas bond, and the supersedeas bond. On or about May 20, 1981, Respondent personally delivered those documents to O'Neill's office with a cover letter from his attorney (R-Ex 1). Since O'Neill was not in her office that day, Respondent gave the documents to the assistant chief, Joe Crutchfield. Respondent explained the nature of the problem and the reason for the delivery of the documents. Crutchfield assured him that everything appeared to be satisfactory and that he would personally discuss the matter with O'Neill the next day. On or about June 1, 1981, Petitioner caused a letter to be sent to Respondent by John Rich, a licensing specialist employed by Petitioner (R-Ex 2). This letter advised that Respondent could "continue operating as a bondsman under his current license until such time as the legal appeal process has been finalized...", subject to approval by the surety company underwriting Respondent. Based on the affirmative representations of Petitioner, by telephone and by its letter of June 1, Respondent continued to write bonds and incur financial obligations as a result thereof. Respondent also continued making contributions to a "build-up fund" held in trust for his underwriter. The buildup fund is money generated out of bond premiums which is held in an escrow account for the underwriter if it becomes legally liable for an estreature of a bond written by Respondent. On September 30, 1981, Petitioner renewed Respondent's license with full knowledge of his convictions (P-Ex 3). On April 5, 1982, Petitioner filed its Administrative Complaint seeking to revoke Respondent's license based on his adjudication of guilt of the two criminal charges to which he pleaded on February 5, 1981.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint, subject to refiling if Respondent's appeal is denied. DONE and ORDERED 30th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982. COPIES FURNISHED: David A. Yon, Esquire Department of Insurance and Treasurer 428-A Larson Building Tallahassee, Florida 32301 Burton C. Conner, Esquire 207 N.W. Second Street Okeechobee, Florida 33472 The Honorable Bill Gunter Insurance Commissioner & Treasurer Department of Insurance The Capitol Tallahassee, Florida 32301
The Issue Pursuant to the order of the First District Court of Appeal dated October 18, 2005, the issue before the Division of Administrative Hearings is a determination of the amount of attorneys' fees and costs to be awarded for the administrative proceeding in Department of Health v. Anthony Glenn Rogers, M.D., DOAH Case No. 02-0080PL, and for the appellate proceeding styled Anthony Glenn Rogers, M.D. v. Department of Health, Case No. 1D04-1153 (Fla. 1st DCA Oct. 18, 2005).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine, and the Board of Medicine ("Board") within the Department is the entity responsible for entering final orders imposing disciplinary action for violations of the laws regulating the practice of medicine. See §§ 455.225 and 458.331(2), Fla. Stat. On January 4, 2002, the Department of Health filed an Administrative Complaint charging Dr. Rogers with violations of Section 458.331(1)(m), (q), and (t), Florida Statutes (1998).3 The matter was referred to the Division of Administrative Hearings, which assigned the matter DOAH Case No. 02-0080PL. The case was heard on May 7, 2002, by Administrative Law Judge Michael J. Parrish. Judge Parrish entered his Recommended Order on February 21, 2003, in which he found that the Department had failed to prove violations of Section 458.331(1)(q) and (t), Florida Statutes (1998), and recommended dismissal of those charges. Judge Parrish found that the Department had proven a violation of Section 458.331(1)(m), Florida Statutes (1998), failing to keep medical records as required by rule, and he recommended that Dr. Rogers be required to pay a $1,000.00 administrative fine and attend a Florida Medical Association record-keeping course as the penalty for the violation. The Board entered its Final Order on February 17, 2004, in which it adopted its own findings of fact and conclusions of law; found Dr. Rogers guilty of all three charges in the Administrative Complaint; and imposed a penalty on Dr. Rogers consisting of a $10,000 administrative fine, completing of a drug course sponsored by the University of South Florida, completion of a Florida Medical Association record-keeping course, and two years' probation, during which he was not permitted to practice medicine unless his practice was monitored quarterly by a physician approved by the Board. Dr. Rogers appealed the Board's Final Order to the First District Court of Appeal, challenging the Board's determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998). Dr. Rogers filed a motion for attorneys' fees and costs based on Section 120.595(5), Florida Statutes. In addition, Dr. Rogers filed a Motion for Stay of Final Order, which the Board opposed. The district court denied the motion for stay in an order entered April 2, 2004, and Dr. Rogers proceeded to comply with the terms of the two-year probationary period imposed by the Board, as well as fulfilling the other requirements set forth in the Board's Final Order of February 17, 2004. In an opinion issued on October 18, 2005, the First District Court of Appeal reversed the Board's Final Order with respect to its determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998), and remanded the matter to the Board for entry of a Final Order consistent with its opinion. The district court held in its opinion that the Board had erroneously re-weighed the evidence and had rejected findings of fact in the administrative law judge's Recommended Order that were supported by competent substantial evidence. The district court also entered on October 18, 2005, the order granting Dr. Rogers's motion for attorneys' fees and costs that is the subject of this proceeding. The district court's mandate issued on February 23, 2006, and, on April 21, 2006, the Board entered a Final Order on Remand adopting the findings of fact and conclusions of law in Judge Parrish's Recommended Order, finding that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), and imposing a $1,000.00 administrative fine on Dr. Rogers and requiring him to attend a medical record-keeping course. Based on the Amended Affidavit of C. William Berger filed August 24, 2006, the total number of hours Mr. Berger spent in representing Dr. Rogers in the administrative proceeding in DOAH Case No. 02-0080PL is 79.75, a total that the Department does not challenge. Mr. Berger's billing rate was $300.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid to Mr. Berger for his representation of Dr. Rogers through the administrative proceedings before the Division of Administrative Hearings was, therefore, $23,925.00. Dr. Rogers was ultimately found to have violated one count of the three-count Administrative Complaint filed against him by the Department, the count in which the Department alleged that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), by failing to keep adequate medical records related to the patient that was the subject of the charges against him. Mr. Berger did not record in his billing statements the amount of time he spent researching this charge, preparing for hearing on this charge, or addressing this charge in the Proposed Recommended Order he filed in 02-0080PL. It is reasonable that Mr. Berger spent 10 percent of the hours included in his billing statements preparing Dr. Rogers's defense to the charge that he failed to keep adequate medical records.4 Accordingly, Mr. Berger's attorney's fees will be reduced by 10 percent, or by $2,392.50, for a total of $21,532.50. In reaching the percentage by which Mr. Berger's fees should be reduced, consideration has been given to the amount of the fees in relationship to the failure to prevail on the medical-records violation, to the seriousness of the alleged violations on which Dr. Rogers prevailed before both the administrative law judge and on appeal,5 and the penalty ranges that the Board could impose for the violations with which Dr. Rogers was charged.6 Based on the Supplemental Affidavit of Lisa Shearer Nelson Regarding Attorneys' Fees and Costs filed September 5, 2006, Ms. Nelson claimed that she spent a total of 187.1 hours "from the issuance of the final order of the Board of Medicine through the appeal and remand and initial preparation of the petition for attorney's fees and costs." Ms. Nelson's billing statements reflect that she represented Dr. Rogers during the appellate proceedings before the First District Court of Appeal in Case No. 1D04-1153 and before the Board on remand from the district court. Ms. Nelson's billing rate was $250.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid by Dr. Rogers to Ms. Nelson for her representation was, therefore, $46,775.00. A review of the billing statements attached to Ms. Nelson's supplemental affidavit reveals that the final billing statement, dated June 9, 2006, was for "preparation of petition for fees and costs; preparation of affidavit re same." Dr. Rogers was billed for 1.9 hours in this billing statement, for a total of $475.00. Because the work done by Ms. Nelson reflected in this billing statement did not involve the appellate proceeding arising out of the Board's Final Order of February 17, 2004, the hours claimed by Ms. Nelson are reduced by 1.9 hours, for a total of 185.2 hours. Accordingly, Ms. Nelson's attorney's fees for her representation of Dr. Rogers on appeal total $46,300.00. The total costs identified in Mr. Berger's Amended Affidavit and in the billing statements attached to the Amended Affidavit is $4,462.55. This amount is reduced by $1,000.00 attributable to a retainer paid to a Dr. Spanos, who was initially retained as an expert witness but who ultimately did not testify on Dr. Rogers's behalf. The total allowable costs for the administrative proceeding, therefore, are $3,462.55. The total costs identified by Ms. Nelson in her Supplemental Affidavit and in the billing statements attached to the Supplemental Affidavit is $1,005.01. The total costs for both the administrative and the appellate proceedings are, therefore, $4,467.56. Dr. Rogers submitted an affidavit in which he claimed that he expended total costs of $154,807.23 in fulfilling the terms of the penalty assessed against him in the Board's Final Order of February 17, 2004, which was reversed by the district court.
Conclusions For Petitioner: C. William Berger, Esquire One Boca Place, Suite 337W 2255 Glades Road Boca Raton, Florida 33486 For Respondent: John E. Terrel, Esquire Michael D. Milnes, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
The Issue The issue to be determined is whether Respondent violated section 626.611(14) or 626.621(8), Florida Statutes (2007), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the insurance industry in the State of Florida. Respondent is licensed as a variable annuity and health agent, a life agent, a life and health agent, a health agent, a legal expense agent, and an independent adjuster. She holds license number A107405, which is presently valid. Respondent was the neighbor of an elderly couple named Paul and Rose Weinberg. As their health declined, she assisted them with their financial affairs. Paul Weinberg was diagnosed with Parkinson's Disease, and Rose had medical issues that caused her to be infirm. Respondent's assistance became labor intensive and time consuming. She obtained a power of attorney from the Weinbergs to facilitate the handling of their affairs, and at some point her name was placed on at least Rose Weinberg's bank account and credit card. Paul Weinberg died about four years after Respondent began assisting the couple. After Paul's death, Respondent continued to provide assistance to Rose for an additional six- year period. She stopped working and spent her time taking care of Rose. Respondent testified that during this time, Rose started "paying" her for her efforts. These payments were not on a weekly basis, but made by Respondent periodically making a lump sum payment toward her own bills with Rose's funds. At some time after Paul's death, Rose was moved to assisted living facility. Respondent testified that as Rose's health declined and it was clear she would need more intensive care, she embarked on a Medicaid spend-down, in order to reduce the amount of Rose's funds so that she could qualify for Medicaid funding. Whether for this purpose or for some less altruistic motive, Respondent transferred $50,000 from a joint account she held with Rose to an account in her own name. Although Respondent claimed that the transfer of funds was performed pursuant to an agreement entered before Rose's health began to decline, she presented no written agreement of any kind to support her claim, and presented no explanation how this transfer of funds would have been permissible under federal law. She also presented no written agreement to support the statement that the payment of her bills out of Rose's funds was to compensate her for the assistance she provided to Rose. On December 28, 2007, the State Attorney for the Nineteenth Judicial Circuit in and for St. Lucie County filed an information against Respondent, charging her with third-degree grand theft in violation of section 812.014, Florida Statutes (2006); fraudulent use of a credit card, in violation of section 817.61, a third-degree felony; criminal use of personal identification information in violation of section 817.568(2)(a), a third-degree felony; and exploitation of an elderly or disabled adult while in a position of trust, in violation of section 825.103(1)(a) and (2)(b), a second-degree felony. Respondent hired T. Charles Shafer and his associate, Beth Allen, as counsel to represent her in the criminal proceedings. As part of their representation, there was some discussion of entering into a plea to resolve the criminal charges. During these discussions, Respondent inquired repeatedly whether any plea deal would have a negative effect on her insurance license. Mr. Shafer and Ms. Allen advised her several times to seek advice from someone specializing in regulatory matters to address this issue. However, in response to her concerns regarding her license, Ms. Allen called the Department of Financial Services to inquire about the ramifications of a nolo contendere plea. She presented the scenario as a hypothetical. Ms. Allen could not remember the name of the person to whom she spoke, and what she was told is in dispute. Ultimately, what she was told is not particularly relevant. After the telephone call, Mr. Shafer wrote Respondent a letter which stated in part: Dear Ms. Haber: I am in receipt of your September 11 e-mail correspondence to Ms. Allen. I understand your concern over how a plea and sentencing may affect your occupation, but as I advised in our last several phone calls, I do not know what collateral consequences such a sentence will have on your profession; I can only tell you with certainty how it will affect your status relative to being able to one day filing an action to seal your records in this matter. However, pursuant to your request, Ms. Allen found a telephone number on the website you provided. She called the Florida Department of Services help-line. She asked the person she spoke to what would happen to your license as a result of a no contest plea to a felony theft with a withhold of adjudication and probation. Their representative advised that since you already have a license, you would not be suspended or placed under review; however, it is your duty to notify the Bureau of Licensure of any law enforcement action, such as your current predicament. Please be advised that neither I nor Ms. Allen vouch for the accuracy of this information, and, as we have suggested repeatedly in past conferences, insist that you personally validate it. (Emphasis added.) To give the type of answer described in the letter would be contrary to Department policy. Whether or not the description of the phone call contained in the letter is accurate, given Mr. Shafer's express qualification and directive that the information be separately verified, it was unreasonable for Respondent to rely upon it. By her own admission, she took no action to independently verify the information in the letter. Respondent pleaded nolo contendere to one count of second-degree grand theft. Respondent met with her attorneys on a Sunday at a Dunkin Donuts restaurant before signing the plea agreement. At that time, counsel went over the plea agreement with her, line by line. Included in the plea agreement is the statement, "I understand a conviction of a crime may cause me to lose local, state or federal licenses and can prevent me from getting certain licenses. A conviction of a felony will cause me to lose the right to vote and my right to own or possess a firearm or ammunition." At the plea hearing on September 15, 2008, the trial judge questioned Respondent regarding her change of plea. In the plea colloquy, the following occurred: THE COURT: Okay. Please tell me your name. MS. HABER: Angela Haber. THE COURT: And how old are you? MS. HABER: Forty-two. THE COURT: And how far have you gone in school? MS. HABER: Some college. THE COURT: Okay. And you read, write and understand English? MS. HABER: Yes. THE COURT: Are you -- don't take offense at any of these questions, I ask them of everyone because sometimes I'll go through this and if you don't ask these questions someone will come back later and say, "I was under the influence of drugs and I don't understand English when I entered my plea." Even though it's clear that they were. So you understand English? MS. HABER: Yes sir. THE COURT: And you're not under the influence of alcohol or any illegal narcotics? MS. HABER: No sir. THE COURT: Okay. Are -- did -- did you fully read this plea agreement from beginning to end? MS. HABER: Yes. THE COURT: These are initials at the bottom of each page and a signature at the end? MS. HABER: Yes. THE COURT: And did you fully understand each and every provision including the rights you're giving up by entering this plea? MS. HABER: Yes. THE COURT: Okay. You are charged with second degree grand theft, that's a second degree felony, its punishable by up to fifteen years in prison, a ten thousand dollar fine or both. You are also charged with fraudulent use of a credit card, criminal use of personal identification and exploitation of elderly or disabled adult, position of trust. And those charges would be dropped or dismissed at the time of sentencing. But it's my understanding that you wish to enter a plea to count one, second degree grand theft. Is that what you wish to do? MS. HABER: Yes. * * * THE COURT: Are you entering this plea because you're guilty or because you feel it's in your best interest? MS. HABER: I feel it's in my best interest. THE COURT: Okay. And is there any objection by the defense to the court taking judicial notice of the complaint affidavit for factual basis? MR. SHAFER: No sir. THE COURT: And both sides stipulate there's a factual basis for the plea? MR. SHAFER: Yes sir, for the plea. MS. BALDREE: Yes sir. And we would add that additionally, that this offense occurred in Saint Lucie County. THE COURT: Ma'am, are you entering this plea freely and voluntarily? MS. HABER: Yes. THE COURT: Has anyone threatened you or forced you or coerced you to enter this plea? MS. HABER: No. THE COURT: Has anyone mistreated you or misled you to enter this plea? MS. HABER: No. THE COURT: Has anyone made any promises to you other than what's contained in this petition? MS. HABER: No. THE COURT: If they have you need to know they're not binding on the court. Have you had enough time to talk to your attorney? MS. HABER: Yes. THE COURT: Do you need more time to talk to your attorney now in private? MS. HABER: No. THE COURT: Are you satisfied in all respects with his advice and counsel? MS. HABER: Yes. * * * THE COURT: Do you understand you're giving up your right to appeal all matters relating to the judgment, including the issues of guilt or innocence? MS. HABER: Yes. THE COURT: Do you understand that if you are adjudicated it would make you a convicted felon and you would lose certain civil rights? MS. HABER: Yes. * * * THE COURT: Do you have any questions for your attorney or the court concerning anything about your case, this petition or these proceedings? MS. HABER: No. THE COURT: Understanding everything we just went over do you still want to enter this plea? MS. HABER: Yes. THE COURT: Okay. I will accept the plea. I find there's a factual basis for it. I find the defendant does not appear to be under the influence of drugs or alcohol at this time. She appears to be aware of the nature of the crime to which she has pled, the consequences, her legal rights and the plea recommendations. I find the plea is freely and voluntarily entered upon a knowing and intelligent waiver of rights. . . . Respondent was sentenced on November 14, 2008. At that time, adjudication of guilt was withheld. She was placed on probation for a period of ten years and ordered to make restitution to Rose Weinberg in the amount of $50,000. On April 17, 2009, Respondent filed a Motion for Post- Conviction Relief and to Vacate Judgment Pursuant to Rule 3.850, Fla. R. Crim. P. In the Motion, Respondent sought to withdraw her nolo plea, based upon ineffective assistance of counsel. The basis for her claim was counsel's failure to advise her that a nolo plea would have a negative effect on her professional licensing. On June 26, 2009, the Honorable Robert E. Belanger entered a detailed Order Denying Defendant's Motion for Post Conviction Relief. The Order states in pertinent part: Defendant claims that she is entitled to withdraw her plea because of her counsel's deficient performance, i.e., in providing affirmative misadvise concerning a collateral matter. This is not even a close call. The court finds the motion to be totally devoid of merit. * * * The defense stipulated to a factual basis for the charge, and the defendant acknowledged that by entering a plea, she was giving up any defenses to the offense charged. Any defenses were abandoned when she entered the plea. Stano v. State, 520 So. 2d 278 (Fla. 1988); Dean v. State, 580 So. 2d 808 (Fla. 3d DCA 1991). Significantly, the court conducted a detailed plea colloquy, asking the defendant the required questions to ensure that the plea was being entered freely, knowingly, intelligently, and voluntarily. Defendant, who was under oath, testified that she had signed the plea form and was aware of the waiver of her various rights. She further testified that she had sufficiently discussed the change of plea with her attorney and that no one had threatened her, coerced her or mislead her into entering the plea. She also confirmed that no one had made any promises to her, except those contained in the plea form. A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences. . . . Respondent appealed the trial court's order. On April 13, 2011, the Fourth District Court of Appeal affirmed the trial court decision. Haber v. State, 59 So. 3d 123 (Fla. 4th DCA 2011). The Fourth District's mandate issued May 13, 2011. Respondent paid $10,000.00 toward the required restitution at the time of sentencing. On October 26, 2011, Respondent moved to have her probation terminated upon payment of $11,000.00 for restitution. On that same day, the trial court ordered that upon payment of the $11,000.00, the court would enter an order terminating Respondent's probation, and the balance of the amount owed by Respondent for restitution, i.e., $15,552.86, would convert to a civil judgment. Respondent paid the $11,000.00 plus court costs and on November 6, 2011, the court entered the Order Terminating Probation.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services enter a Final Order finding that Respondent has violated sections 626.611(14) and 626.621(8), and revoking Respondent's licenses and appointments issued or granted under or pursuant to the Florida Insurance Code. DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 1st day of February, 2012. COPIES FURNISHED: Donald E. Pinaud, Jr., Esquire Kattman & Pinaud, P.A. 4069 Atlantic Boulevard Jacksonville, Florida 32207 Robert Alan Fox, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
Recommendation Based on the evidence presented at the hearing on September 22, 1989, the hearing officer recommends that the attorney fees awarded to Ganson be in the following amounts: Attorney fees for the Administrative Phase: $16,550.00 Attorney fees for the Appeal Phase: 23,550.00 Attorney fees for the Attorney Fee Phase: 8,150.00 TOTAL ATTORNEY FEE RECOMMENDATION $48,250.00 Based on the evidence presented at the hearing on September 22, 1989, the Hearing Officer recommends that the costs awarded to Ganson be in the following amounts: Administrative Phase $401.94 Appeal Phase 100.00 Attorney Fee Phase 0.00 TOTAL COSTS RECOMMENDATION $501.94 Respectfully submitted and entered this 12th day of October 1989, at Tallahassee, Leon County, Florida. 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 12th day of October, 1989. APPENDIX TO REPORT AND RECOMMENDATION IN GANSON v. STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DOAH CASE NO. 89-4818F, 1st DCA CASE NO. 88-01568 The following is a summary of the rulings at hearing on all of the exhibits offered by all parties at the evidentiary hearing on September 22, 1989. Exhibits offered by Petitioner Ganson: Petitioner Ex. 1: Received without objection. Petitioner Ex. 2: Received without objection. Petitioner Ex. 3: Received without objection. Petitioner Ex. 3A: Received without objection. Petitioner Ex. 4A: Received without objection. Petitioner Ex. 4B: Received without objection. Petitioner Ex. 5. Objection on grounds of relevancy. Objection overruled and exhibit received. [Objection on the grounds of hearsay might have resulted in a different ruling, but there was no hearsay objection.] Petitioner Ex. 6: Objection on grounds of relevancy. Objection overruled and exhibit received. [Objection on the grounds of hearsay might have resulted in a different ruling, but there was no hearsay objection.] Petitioner Ex. 7: Received without objection. Petitioner Ex. 8: Received without objection. Petitioner Ex. 9: Officially recognized without objection. Petitioner Ex. 10: Officially recognized without objection. Petitioner Ex. 11: Objection sustained. [Included in record as rejected exhibit.] Petitioner Ex. 12. Officially recognized without objection. Petitioner Ex. 13: Officially recognized without objection. Exhibits offered by Respondent Department: Department Ex. 1: Received without objection. Department Ex. 2: Received without objection. Department Ex. 3: Objection on grounds exhibit constitutes statement made in negotiations concerning a compromise. Objection sustained. [Included in record as rejected exhibit.] Department Ex. 4: Objection on grounds exhibit constitutes statement made in negotiations concerning a compromise. Objection sustained. [Included in record as rejected exhibit.] COPIES FURNISHED: Augustus D. Aikens, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kenneth D. Franz, Esquire 204-B South Monroe Street Tallahassee, Florida 32301 Raymond D. Rhodes, Clerk District Court of Appeal First District State of Florida 300 Martin Luther King Boulevard Tallahassee, Florida 32399-1850 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA TERRI J. GANSON, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 88-1568 DOAH CASE NO. 89-4818F STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, OFFICE OF STATE EMPLOYEES' INSURANCE, Appellee. / Opinion filed December 22, 1989. Appeal from an order of the Department of Administration. Kenneth D. Kranz, of Eric B. Tilton, P.A., Tallahassee, for appellant. Augustus D. Aikens, Jr., General Counsel, Department of Administration, Tallahassee, for appellee. OPINION AND ORDER ON ATTORNEY FEE BARFIELD, J. By direction of this court the matter of attorney fees payable to appellant was submitted to Michael M. Parrish, Hearing Officer, for a recommendation on the amount of fee to be awarded. His Report and Recommendation follows. REPORT AND RECOMMENDATION By opinion filed July 7, 1989, reported at 14 FLW 1594, the District Court of Appeal, First District, reversed and remanded a final order of the Department of Administration. The opinion included the following disposition of Ganson's motion for costs and attorney fees: Appellant's motion for attorney fees under section 120.57(1)(b)10, Florida Statutes (1987), based upon her assertion that the agency action which precipitated the appeal was a gross abuse of the agency's discretion, is granted. The parties may, within twenty days of the date this decision becomes final, file with this court a stipulation regarding the amount of reasonable attorney fees to be awarded. In the event the amount of the attorney fees cannot be agreed upon by the parties within the time allotted, the Department shall promptly refer the matter to Michael Parrish, the Division of Administrative Hearings hearing officer, for an immediate evidentiary hearing to determine the amount of reasonable attorney fees. The hearing officer's recommendations thereon shall be filed with this court within sixty days after this opinion shall have become final, at which time this court will enter an appropriate order awarding attorney's fees. Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984); Johnston v. Department of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984). The parties were unable to reach a stipulation regarding the amount of reasonable attorney fees to be awarded. On August 28, 1989, the Department of Administration referred the matter to Michael Parrish, a hearing officer of the Division of Administrative Hearings, to conduct an evidentiary hearing to determine the amount of reasonable attorney fees. In order to accommodate scheduling difficulties of counsel, at the request of the parties the court extended the sixty-day period for the filing of the hearing officer's recommendations until October 13, 1989. (See Motion For Extension of Time filed September 7, 1989, and order granting same issued September -14, 1989.) An evidentiary hearing was originally scheduled for September 15, 1989. At the request of counsel for the Department of Administration, the evidentiary hearing was continued until September 22, 1989. At the hearing on September 22, 1989, Ganson presented the testimony of Kenneth D. Kranz, Esquire, the attorney who performed all of the services for which fees are claimed. Ganson also offered numerous exhibits including the affidavits of two local attorneys (Vernon T. Grizzard, Esquire, and Fishel Philip Blank, Esquire), both of which included expert opinions regarding the reasonableness of the attorney fees sought by Ganson. The Department also called Mr. Kranz as a witness and offered four exhibits. [Rulings on all exhibits offered by all parties are contained in the appendix to this report and recommendation.] The Department did not call any expert witnesses to oppose the opinions expressed by Messrs. Kranz, Grizzard, and Blank. At the conclusion of the hearing, the parties were allowed until September 29, 1989, within which to file memorandums of law, which have been carefully considered during the preparation of this report and recommendation. The statutory provision pursuant to which the court has granted an award of attorney fees, Section 120.57(1)(b)(10), Florida Statutes (1987), reads as follows, in pertinent part: When there is an appeal, the court in its discretion may award reasonable attorney's fees and costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process or that the agency action which precipitated, the appeal was a gross abuse of the agency's discretion. Attorney Fees Ganson's Proposal For Amount Of Attorney's Fees And Costs Of Litigation suggests that there may be some disagreement between the parties as to whether the court's award of attorney fees encompasses all phases of this litigation, or is only an award of attorney fees for legal services on appeal. It would appear from the court's specific mention of Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984), and Johnston v. Department of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984), that the court envisioned an award of attorney fees "at the hearing level," as well as on appeal. And it also appears to be well settled that attorney fees may also be recoverable for the time spent litigating entitlement to attorney fees. See Bill Rivers Trailers, Inc. v. Miller, 489 So.2d 1139 (Fla. 1st DCA 1986); B & L Motors, Inc. v. Big Inotti, 427 So.2d 1070 (Fla. 2d DCA 1983). See also Albert Heisler v. Department of Professional Regulation, Construction Industry Licensing Board, 11 FALR 3309 (DOAH Final Order issued May 19, 1989). For purposes of this report and recommendation, I have assumed that the court's award of attorney fees encompassed all three phases of activity in this litigation; the "administrative phase" (from the commencement of the administrative claim until the Department's final order), the "appeal phase" (from the Department's final order until the appellate court opinion), and the "attorney fee phase" (from the appellate court opinion to the present). Accordingly, I have included in this report and recommendation discussion and recommendations as to the appropriate attorney fee award for all three phases of the litigation. Where it appears helpful to do so, issues regarding the three phases are discussed separately. The methodology to be followed in determining the amount of reasonable attorney fees to be awarded to a prevailing party is set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). There, the Florida Supreme Court decided to "adopt the federal lodestar approach for computing reasonable attorney fees" and, at pages 1150-51, set forth the following methodology: The first step in the lodestar process requires the court to determine the number of hours reasonably expended on the litigation. Florida courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee. To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed. Counsel is expected, of course, to claim only those hours that he could properly bill to his client. Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary. The "novelty and difficulty of the question involved" should normally be reflected by the number of hours reasonably expended on the litigation. The second half of the equation, which encompasses many aspects of the representation, requires the court to determine a reasonable hourly rate, for the services of the prevailing party's attorney. In establishing this hourly rate, the court should assume the fee will be paid irrespective of the result, and take into account all of the Disciplinary Rule 2-106 factors except the "time and labor required," the "novelty and difficulty of the question involved," the "results obtained," and "[w]hether the fee is fixed or contingent." The party who seeks the fees carries the burden of establishing the prevailing "market rate," i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services. The number of hours reasonably expended, determined in the first step, multiplied by a reasonable hourly rate, determined in the second step, produces the lodestar, which is an objective basis for the award of attorney fees. Once the court arrives at the lodestar figure, it may add or subtract from the fee based upon a "contingency risk" factor and the "results obtained." The number of hours reasonably expended on the litigation. Ganson's attorney has submitted contemporaneously prepared, detailed time records evincing his labors at all three phases of this litigation. These records reflect that Ganson's counsel recorded 66.2 hours at the administrative phase, 94.2 hours at the appeal phase, and 32.6 hours at the attorney fee phase, for a grand total of 193 hours. To support the application for fees, Ganson introduced the affidavits of two members of the Florida Bar, both of whom practice administrative law in the Tallahassee area, and both of whom opined that the total number of hours claimed was reasonable and that the number of hours claimed for each of the three phases of the litigation was also reasonable. Although the Department argues that many of the hours claimed by Ganson's attorney are excessive, the Department did not offer any expert witness testimony to support its arguments. Part of the Department's argument in this regard is that the hours claimed by Ganson's attorney should be reduced because the attorney prepares his own legal documents, including pleadings, notices, motions, and briefs, by typing on a computer. Mr. Kranz explained in his testimony that such preparation is no different and no more time-consuming than preparation of documents by such means as oral dictation or handwriting, and the Department has not offered any evidence that Mr. Kranz, document preparation methods are more time-consuming than the methods of other attorneys. Also, without benefit of expert opinion or other evidence, the Department argues that the amount of time spent by Ganson's attorney on writing the brief in the appellate court should be reduced from the claimed 51 hours to an arbitrary figure of 26 hours. There is simply no basis in the record for such a reduction. Nor is there any record basis for the Department's contention that the hours spent by Ganson's attorney in preparation for oral argument should be arbitrarily reduced from the claimed 13 to a mere 4. The Department has raised challenges to several other details of the hours claimed by Ganson's attorney, but all of the challenges fail for want of expert opinion or other evidence to support them. Based on the evidence presented, all of the hours claimed by Ganson's attorney are reasonable. Accordingly, the first step in the lodestar calculation consists of a total of 193 hours broken down as follows: 66.2 hours at the administrative phases, 94.2 hours at the appeal phase, and 32.6 hours at the attorney fee phase. The reasonable hourly rate for the services of Ganson's attorney. The parties disagree on what constitutes a reasonable hourly rate for Ganson's attorney. Ganson contends that the rate should be $125 per hour, basing the contention largely on the opinions in the Blank and Grizzard affidavits to the effect that $125 is the "market rate" in the Tallahassee legal community for services of the nature provided in this case. The Department contends, based primarily on its notions about the experience level of Mr. Kranz and on what Mr. Kranz has charged other clients for legal work, that a reasonable hourly rate would be $75 for legal work at the administrative phase and $100 per hour for legal work at the appeal phase and thereafter. Ganson's contentions are supported by evidence; the Department's are not. Further, Ganson's contentions are consistent with the second step methodology of Rowe, supra, while the Department's are not. Rowe places on the party seeking attorney fees the burden of establishing "the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services." The evidence shows that rate to be $125 per hour. The calculation of the lodestar amount. The calculation of the lodestar amount under the Rowe methodology is normally a simple arithmetic task; the multiplication of the reasonable number of hours times the reasonable hourly rate. Here, the calculation is as follows: For the administrative phase, 66.2 hours x $125.00 $8,275.00; for the appeal phase, 94.2 hours x $125.00 $11,775.00; and for the attorney fee phase, 32.6 hours x $125.00 $4,075.00. Adding the three components together produces a lodestar of $24,125.00. But the Department argues, on the basis of cases such as Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla. 1988), that the fee to be awarded in this case must be limited to the maximum fee that Ganson was obligated to pay to her attorney; an amount which the Department contends is only $500.00. Disposition of this issue requires a closer look at the nature of Ganson's fee arrangement and at a couple of other more analogous cases. The fee arrangement between Ganson and her attorney is described as follows in one of the Kranz affidavits (Petitioner's Exhibit 2, at pp. 8 and 9): Our agreement was that: 1) no fee would be owed if we were not successful in her claim; and 2) we would attempt to secure an award of fees against the Department, and in the event that we, were successful in that claim, attorney's fees would be whatever were awarded. Upon being advised at the outset that an eventual award of fees appeared very unlikely, the client initially insisted that she wanted to pay me something if we ultimately won on the merits, but did not prevail on the issue of fees. I perceived that it was very important to her not to consider herself to be taking advantage of me. I agreed and said that we would decide on a fee later if that situation arose. We never discussed an amount certain, but it was my intention that, if we ended up in this situation, I would charge her, if anything, a token amount only large enough to make her comfortable. Realistically, no significant fee (if any) would have been paid by the client; any fees bearing any rational relationship to the work required in this case could only have come from an award against the Department. In his testimony at the hearing, Mr. Kranz testified that if Ganson had won on the merits, but had not been awarded attorney fees against the Department, and if Ganson had insisted on paying a fee for legal services, he would probably have charged her about $500.00. But Mr. Kranz clarified that under those circumstances, the fee would have been more in the nature of what Ganson wanted to pay, rather than anything she would have been required to pay. In brief summary; although under certain speculative circumstances which might have, but never did, come about, Ganson might have wanted to pay a nominal fee to her attorney, her attorney had no intention of collecting a fee from any source other than an award of attorney fees against the Department. Specifically, Ganson's attorney did not have an agreement to share in any percentage of any recovery he might obtain for Ganson. Ganson's fee agreement with her attorney is unlike the agreement in Miami Children's Hospital, supra, and is quite similar to the fee agreements addressed in Quanstrom v. Standard Guaranty Insurance Company. 519 So.2d 1135 (Fla. 5th DCA 1988), and State Farm Fire and Casualty Co. v. Palma, 524 So.2d 1035 (Fla. 4th DCA 1988). The fee agreement in Quanstrom, supra, "was to the effect that if the attorney ultimately prevailed..., the attorney would be entitled to a fee which would be the amount the court allowed as an attorney's fee under Section 627.428, Florida Statutes, rather than a percentage of the recovery." And in Palma, supra, the contingency fee agreement provided that "the amount of the fee agreed to under the contract was a fee to be awarded by the court." In both Quanstrom and Palma, the courts held that the usual Rowe factors should be used to calculate reasonable attorney fees, and in neither case was the fact that no fee was due from the client found to be a basis for limiting the fee. In view of the nature of the fee agreement in this case, and on the basis of Quanstrom and Palma, the usual Rowe factors should be applied here. Effect of "results obtained" on the lodestar amount. In the Rowe decision the court observed, at page 1151: The "results obtained" may provide an independent basis for reducing the fee when the party prevails on a claim or claims for relief, but is unsuccessful on other unrelated claims. When a party prevails on only a portion of the claims made in the litigation, the trial judge must evaluate the relationship between the successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims. In this case, Ganson was successful on her entire claim against the Department. Therefore, the "results obtained" component of the Rowe methodology does not provide a basis for reducing the fee. Application of the "contingency risk" factor to the lodestar amount. Ganson argues that a "contingency risk" factor of 2.5 should be applied to the lodestar amount. The Department argues, for a number of different reasons set out below, that no contingency risk factor should be applied in this case. At page 1151 of the Rowe decision, the court tells us the following about contingency risk factors: Based on our review of the decisions of other jurisdictions and commentaries on the subject, we conclude that in contingent fee cases, the lodestar figure calculated by the court is entitled to enhancement by an appropriate contingency risk multiplier in the range from 1.5 to 3. When the trial court determines that success was more likely than not at the outset, the multiplier should be 1.5; when the likelihood of success was approximately even at the outset, the multiplier should be 2; and, when success was unlikely at the time the case was initiated, the multiplier should be in the range of 2.5 and 3. (emphasis added) The use of the phrase "entitled to enhancement" supports a conclusion that the application of a multiplier is mandatory in contingent fee cases, and Florida appellate courts in two districts have so held. See State Farm Fire & Casualty Co. v. Palma, 524 So.2d 1035 (Fla. 4th DCA 1988); Quanstrom v. Standard Guaranty Insurance Company, 519 So.2d 1135 (Fla. 5th DCA 1988). But several decisions in the Third District Court of Appeal have concluded that the contingency risk multiplier is not mandatory. See Bankers Insurance Company v. Valmore Gonzalez, 14 FLW 906 (Fla. 3d DCA 1989); National Foundation Life Insurance Company v. Wellington, 526 So.2d 766 (Fla. 3d DCA 1988); Travelers Indemnity Company v. Sotolongo, 513 So.2d 1384 (Fla. 3d DCA (1987). Although the matter is not entirely free from doubt, unless and until the matter is further clarified by the Florida Supreme Court, it would appear that the better reasoned view, and the most widely accepted view, is that the contingency risk multiplier should be treated as mandatory in cases where the party seeking fees has entered into a contingent fee agreement. The Department argues that, even if mandatory, a contingency risk multiplier is inappropriate here because the fee agreement between Ganson and her attorney was never reduced to writing. In this regard, the Department relies on FIGA v. R.V.M.P. Corp., 681 F.Supp 806 (S.D. Fla. 1988), in which a federal court applying Florida law held: Because this contingency fee arrangement was never reduced to a writing, it is an unconscionable contract. The Rules Regulating the Florida Bar, in particular Rule 4-1.5(D)(1), (2)(1987), provide that every lawyer who accepts a contingency fee arrangement must reduce the arrangement to a writing signed by the client and a lawyer for the law firm representing the client. This obviously is not the case here. Because the proposed arrangement violates this rule of professional responsibility, the contingency fee agreement here is unconscionable and, therefore, void. See Citizens Bank & Trust Co. v. Mabry, 102 Fla. 1084, 136 So. 714 (1931). Because the contingency fee arrangement here is unconscionable, the court will not apply a contingency risk factor. See Aperm of Fla., Inc. v. Trans-Coastal Management Co., 505 So.2d 459 (Fla. 4th DCA 1987). Because of the views quoted above, the court in FIGA declined to apply a contingency risk factor, but did, on a quantum merit theory, award a substantial attorney fee. For several reasons, FIGA does not appear to be controlling here. First, the conclusion in FIGA is not based on Florida case law, nor does there appear to be any Florida appellate court decision which has followed FIGA. Second, the facts in FIGA are different from the facts in this case. FIGA involved a contingency fee agreement in which the attorney was to receive one- third of the amount recovered and, if no amount was recovered, the client would pay the costs, but not the fees, of the litigation. As discussed above, the contingency fee agreement in this case does not contemplate the attorney taking a share of the client's recovery or otherwise receiving a fee from the client. Rather, as in Quanstrom and Palma, supra, the only source from which the attorney seeks a fee is the opposing party. Because of these differences, FIGA is inapplicable to the instant matter. The Department also argues that on the basis of Pennsylvania v. Delaware Valley Citizens, Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987), the use of the contingent fee multiplier should be limited or omitted. In response to an identical argument, the court in Aetna Life Insurance Company v. Casalotti, 544 So.2d 242 (Fla. 3d DCA 1989), held: We are unable to entertain that suggestion, for the Florida Supreme Court in Rowe expressly authorized multipliers and prescribed the permissible range. The same result should obtain here. See also, State Farm Fire & Casualty Co. v. Palma, 524 So.2d 1035 (Fla. 4th DCA 1988), and Quanstrom v. Standard Guaranty Insurance Company, 519 So.2d 1135 (Fla. 5th DCA 1988). (Contingent fee multipliers are mandatory.) The Department argues that no multiplier should be used because it would result in an attorney fee many times larger than Ganson's recovery and would be a fee with no reasonable relationship to the size of the recovery. In answer to a similar argument, the court in Quanstrom v. Standard Guaranty Insurance Company, 519 So.2d 1135 (Fla. 5th DCA 1988) , held: As to the argument that the contingency risk multiplier may, in the trial court's opinion, result in an unreasonably large fee in a given case (such as when, as here, it is compared only to the amount in controversy), the answer is that the factors other than the contingency risk factor, such as the hours expended and the routinely charged fee rate, are equally implicated. If any formula considers only relevant factors, and all of them, and correctly weighs those factors, the result necessarily will be correct. If the result is unsatisfactory to those having the responsibility and authority in the matter, then they should change the formula by reassessing the factors to be considered and the weight to be given each. We who are bound to follow the authority of others should not omit factors or juggle the weight given a factor, beyond the perimeters given the exercise of discretion, in order to reach a preferred result. And it should also be noted that in State Farm Fire & Casualty Co. v. Palmer, 524 So.2d 1035 (Fla. 4th DCA 1988), an attorney fee in the amount of $253,500.00, calculated pursuant to the Rowe factors, was approved on appeal even though the amount recovered by the plaintiff was only $600.00. (The Palma court noted that the litigation in that case had become protracted due to "stalwart defense" and "militant resistance;" characteristics which are to some extent shared by the litigation in this case.) On the basis of the foregoing, the mere size of the fee, if properly calculated pursuant to the Rowe methodology, is not a basis for reduction of the fee. For all of the reasons set forth above, it is concluded that a contingency risk multiplier should be applied in this case. What remains to be done is to select the appropriate multiplier. Although Ganson argues otherwise, upon consideration of the evidence, it appears that at the outset the likelihood of success in this case was approximately even. To borrow from Appalachian, Inc. Ackmann, 507 So.2d 150 (Fla. 2d DCA 1987), in which a multiplier of 2 was approved, at the outset the outcome of this case "was tentative and incapable of a comforting prediction of success. Under such circumstances, Rowe requires a multiplier of 2. Application of that multiplier yields the following results: For the administrative phase, $8,275.00 x 2 $16,550.00; for the appeal phase, $11,775.00 x 2 $23,550.00; and for the attorney fee phase, $4,075.00 x 2 $8,105.00. The total for all three phases of the litigation is calculated as $16,550.00 + $23,550.00 + $8,150.00 - $48,250.00. On the basis of all of the foregoing, a reasonable attorney fee pursuant to the Rowe methodology totals $48,250.00 Costs Ganson's motion before the appellate court was titled "Motion For Attorney's Fees," but the opening sentence of the motion requests an award of "attorney's fees and costs." (emphasis added) The motion also concludes with a request for an award of "reasonable attorney's fees and costs." (emphasis supplied) The court's opinion in this case grants Ganson's "motion for attorney fees," but never specifically awards costs. Similarly, the court's opinion does not specifically direct the hearing officer to make any recommendation regarding costs. Nevertheless, the court's specific mention of Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984), and Johnston v. Department of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984), leaves open the possibility that it was the court's intention to award costs as well as fees to Ganson. Because of that possibility, I include the following discussion of Ganson's costs. The costs which Ganson seeks to recover are itemized in the three Kranz affidavits designated as Petitioner's Exhibits 2, 3, and 3A. Broken out into the three phases of this litigation, the costs claimed are summarized as follows: Administrative Phase Expert witness fee (Dr. Whitley) 100.00 Expert Witness fee (Dr. Munasifi) 125.00 Deposition transcript (Dr. Munasifi) 151.94 Copying charge for medical records 25.00 Miscellaneous copying charges 89.00 Miscellaneous postage charges 3.41 Sales tax on certain expenses 13.16 Total claimed for this phase 507.51 Appeal Phase District Court of Appeal filing fee 100.00 Copying charges--Initial Brief 57.46 Copy/Binding Charge -Reply Brief 19.44 Miscellaneous copying charges 39.15 Miscellaneous postage charges 5.85 Total claimed for this phase 221.90 Attorney Fee Phase Photocopying charge--Proposal For Fees Exhibits--Tallahassee Copy & Printing & 84.80 Total claimed for this phase 84.80 The necessity or reasonableness of the costs are not addressed in the affidavits of Blank and Grizzard. The Kranz affidavits itemize the costs, but contain no opinion concerning the reasonableness of the expert witness fees claimed nor any opinion that the other costs claimed were reasonably and necessarily incurred in the prosecution of Ganson's case. The evidence does show that the client has voluntarily paid all but the last few dollars of the costs claimed, which is some evidence of the reasonableness of the costs. Further, facial examination of the costs claimed reveals nothing out of the ordinary. With regard to the expert witness fees paid to Dr. Whitley and Dr. Munasifi, the necessity of such testimony can hardly be doubted in a case in which the central issue concerned the nature of Ganson's medical condition before and after her employment with the state. Finally, the Department of Administration has not argued that any of the costs claimed are unnecessary or unreasonable. The Department's failure to object notwithstanding, the copying charges (with the exception of the charges for copies of medical records) and the postage charges are not the types of costs that are normally assessed against an opposing party. See Statewide Uniform Guideline For Taxation Of Costs In Civil Actions. Accordingly, the miscellaneous copying charges ($89.00) and miscellaneous postage charges ($3.14) should be deducted from the costs for the Administrative Phase; the initial brief ($57.46), the reply brief ($19.44), and miscellaneous ($39.15) copying charges and the miscellaneous postage charges ($5.85) should be deducted from the costs for the Appeal Phase; and the photocopying charge ($84.80) should be deducted from the costs for the Attorney Fee Phase. With these reductions, the costs Ganson should recover, if it is the intention of the court to award costs, are as follows: Administrative Phase $401.94 Appeal Phase 100.00 Attorney Fee Phase 0.00 Total allowable costs $501.94
The Issue The issue is whether Respondent properly denied Petitioner's application for licensure by endorsement to practice as a registered nurse in the state of Florida.
Findings Of Fact In June of 1980, Petitioner was vacationing in Escambia County, Florida. While he was there, he was arrested for Driving Under the Influence of Liquor (DUI). After his arrest, Petitioner was taken to a police station where he waived his right to an attorney and submitted to a Breathalyzer test. Petitioner was held at the police station until a family member picked him up several hours later. Petitioner posted a $100 bond to secure his release from police custody. Petitioner pled guilty and was convicted of DUI in July of 1980. Petitioner was ordered to pay a fine in the amount of $167.50. His driver's license was suspended for 90 days. He was nineteen years old at the time. Petitioner was in the United States Navy for 16 years, beginning in November of 1980. Initially, Petitioner received training as a urology technician and an operating room technician. Later he participated in the Medical Enlisted Commissioning Program, which allowed him to complete his bachelor's degree in nursing. Petitioner served as an ensign the last five years of his naval career, during which he received several security clearances. Petitioner routinely disclosed the existence of his previous DUI when questioned by the Navy. Petitioner was medically retired from the armed forces in September of 1996. He filed an application for licensure by endorsement as a nurse with Respondent in August of 1996. At that time, Petitioner was already licensed as a registered nurse in the state of Rhode Island. Since October of 1996, Petitioner has worked as the Director for Risk and Quality Management at Gulf South Health Plans in Louisiana. Petitioner is also licensed to practice nursing in the state of Louisiana. Question 6A of the Florida application for nursing licensure states as follows: 6A. ARREST HISTORY Have you ever been convicted or have you entered a no contest or guilty plea -- regardless of adjudication -- for any offense other than a minor traffic violation? Petitioner answered this question on his application by checking the block marked "NO." Petitioner filed his application with Respondent on August 2, 1996, without disclosing his arrest and conviction for DUI. Respondent's routine check with the Florida Department of Law Enforcement revealed Petitioner's 1980 arrest and conviction for Driving Under the Influence. Respondent subsequently requested additional information from Petitioner relating to his DUI. Respondent furnished Petitioner with all requested information. Petitioner did not knowingly or willfully fail to disclose his arrest and conviction for DUI. At the time he filed his application, Petitioner believed his 1980 DUI conviction constituted a "minor traffic offense." He did not understand the question on the licensure application to require the reporting of a DUI conviction. Question 6A on Petitioner's application does not state whether an applicant should disclose all misdemeanors as well as felonies. The question is confusing and misleading. From February 1992 through June 1997, Respondent denied 392 applicants for nursing licensure because they had a criminal conviction or failed to disclose one or more criminal convictions. Respondent was able to locate the files of 287 of those applicants. Of the 287 applicants, 183 failed to disclose crimes other than DUI or criminal traffic charges. Ninety-four applicants failed to disclose DUI or criminal traffic violations. After Petitioner filed his application, Respondent approved a revision to the language of Question 6A. The revised language for the question reads as follows: Have you ever been found guilty of, or pled guilty or no contest to, any charge other than a minor traffic offense? You must include all misdemeanors and felonies even if adjudication was withheld. Respondent decided to make this change due to the high percentage of applicants who failed to disclose convictions for DUI. Respondent wanted to make the question easier to understand. Respondent has never denied licensure to an applicant solely as a result of an applicant's previous DUI conviction.
The Issue The issue to be determined in this case is the amount of appellate attorney's fees to be awarded and paid to Respondent by Petitioner.
Findings Of Fact Based on the evidence presented, the following findings of fact and conclusions of law are made: The dispute taken on appeal to the Third DCA in Case No. 3D17-0149 concerned the undersigned's Final Order on Petitioner's Motion for Attorney's Fees dated December 20, 2016.1/ In that Final Order, the crux of the ruling denying the request for fees was that in the administrative case, there had been no prevailing party; that the wording of section 255.0516, Florida Statutes, contemplates that costs and attorney's fees may be recovered only after a final administrative hearing is held (no final hearing had been held); and that the separate agreement between the parties did not provide a basis for an award of fees. The Final Order denying the award of attorney's fees to Nader was appealed and upheld by the Third DCA in a per curiam affirmed Opinion dated March 21, 2018. Respondent was also awarded its appellate fees in a separate Opinion issued the same day. That matter was referred to the undersigned for a determination. Respondent is requesting that this tribunal award it payment of $120,539.70 as appellate attorney's fees resulting from approximately 303.75 hours of time. In doing so, it relies upon several invoices submitted by its counsel regarding the legal work performed on the appeal. See Resp. Exs. 3-17 and Ex. A of Resp. Ex. 20. Those invoices reflect that the following attorneys and paralegals worked on the appeal for Respondent at the listed rate(s): Albert E. Dotson, Jr. ($740 to 750.00/hour) Eileen Ball Mehta ($685 to 695.00/hour) Jose M. Ferrer ($595.00/hour) Melissa Pallett-Vasquez ($565.00/hour) Eric Singer ($480 to 510.00/hour) Leah Aaronson ($315.00/hour) Elise Holtzman ($290 to 295.00/hour) Maria Ossorio ($295.00/hour) Jessica Kramer ($290.00/hour) Maria Tucci ($275.00/hour) In deciding the amount of attorney's fees to be awarded, a court must consider not only the reasonableness of the fees charged, but also the appropriateness of the number of hours counsel engaged in performing their services. Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and Mercy Hosp. Inc., v. Johnson, 431 So. 2d 687 (Fla. 3d DCA 1983). Respondent has the burden to prove, by a preponderance of the evidence, that the amount of attorney's fees it has requested is reasonable. Rowe, 472 So. 2d at 1145; see also § 120.57(1)(j), Fla. Stat. (2015). In Rowe, it was determined that the criteria listed in Rule 4-1.5 of the Rules Regulating The Florida Bar should be used to calculate the amount of reasonable attorney's fees. Rowe, 472 So. 2d at 1151. The undersigned has considered all the relevant factors outlined in Rule 4-1.5 and Rowe. Several of the factors and related findings are highlighted below. Rule 4-1.5(b)(1)(A) In determining whether a requested fee award is reasonable, one factor to be considered is "the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly." The issue on appeal to the Third DCA was limited primarily to an analysis and determination of a "prevailing party" fee award. Notably, this issue was addressed, briefed, and argued by these parties before the undersigned in the underlying administrative proceeding. Many of the arguments set forth by Respondent in the appellate proceedings, which is the subject of this remand Order, were duplicative and, as mentioned, had been briefed, argued, and utilized in prior filings in the underlying administrative proceedings. Respondent contends that "new theories of liability" were introduced in Petitioner's Initial Brief. However, this argument is not persuasive. The evidence presented at the hearing also does not support Respondent's claim that all the labor and services of the aforementioned attorneys was required. A good deal of their work was duplicative in nature, redundant, and not necessary in order to perform the legal services properly. In short, some of the time billed was excessive. Petitioner's expert, Attorney Robert Klein, testified that he reviewed the Bilzin Sumberg firm's invoices for legal services, reviewed a considerable number of pleadings from the administrative proceedings, and reviewed nearly the entire collection of pleadings in the appellate case.2/ Klein testified convincingly, and the undersigned credits, that based on his global review of the Bilzin Sumberg invoices: (1) the fees charged "were far beyond what they should have been"; (2) he discovered a "tremendous duplication of effort"; and (3) "the overwhelming majority of the arguments" raised on appeal had already been raised in the administrative proceedings. In describing the firm's preparation time for oral arguments, he opined that the time billed was "really high." In short, Klein's expert testimony, while stated in general or more abstract terms, properly supplemented by the undersigned's own review of the invoices and the Exhibit A summary of Respondent's Exhibit 20, supports a considerable reduction in the fees charged. As a legal back drop to the distinctive issues in this case, an analysis regarding the reasonableness of an attorney's posted time is helpful. In Donald S. Zuckerman, P.A. v. Alex Hofrichter, P.A., 676 So. 2d 41, 43 (Fla. 3d DCA 1996), the court held that a party has the right to hire as many attorneys as it desires, but the opposing party is not required to compensate for overlapping efforts, should they result. In Brevard County v. Canaveral Properties, Inc., 696 So. 2d 1244 (Fla. 5th DCA 1997), the Fifth District Court of Appeal panel held that: The polestar of an appellate attorney fee award pursuant to section 73.131 and the case law generally, is that it must be reasonable. One that is bloated because of excessive time spent, or unnecessary services rendered, or duplicate tasks performed by multiple attorneys, does not meet that criterion of reasonableness. The Fifth District Court of Appeal reminded the parties, "[i]n making an attorney fee award, the court must consider the possibility of duplicate effort arising from multiple attorneys, in determining a proper fee award. Fees should be adjusted and hours reduced or eliminated to reflect duplications of services." Id. In determining the hours, the undersigned must also look at the amount of time that would ordinarily be spent to resolve the particular type of issues, which is not necessarily the time actually spent by counsel in the case. It is settled that a court is not required to simply accept the hours stated by counsel. In re Estate of Platt, 586 So. 2d 328, 333-34 (Fla. 1991). Finally, in Baratta v. Valley Oak Homeowners' Association at the Vineyards, Inc., 928 So. 2d 495 (Fla. 2d DCA 2006), the court outlined that as a general rule, duplicative time charged by multiple attorneys working on the case is usually not compensable. In this case, a considerable portion of Respondent's appellate arguments, case law, drafting time, and associated research was similar, if not identical to, the arguments, case law, and documents filed with this tribunal prior to the initiation of the appeal.3/ Moreover, Respondent's expert witness, Dagmar Llaudy, acknowledged that a fair amount of duplication occurred. She testified, for instance, that "the answer brief and everything else they [Miami–Dade College] did, it used the same case law and it used the same arguments. So it was very difficult to separate work done for a 57.105 and then work done for the remainder of the case because they all touched on the same issues." Tr. p. 134, Line 22-25, and p. 135, Line 1-2. This statement by Respondent's expert witness is telling, and explains a good deal of the legal work for which fees are being sought. The undersigned concludes that when legal work done for one aspect of a case closely resembles, or is similar to, legal work performed for another phase of the case and is used again, the party is normally not entitled to recover all of its fees for this repetitious work. Perhaps the most compelling support for reducing the requested award in this case can be found in the reasoning outlined by the magistrate judge in Alvarez Perez v. Sanford- Orlando Kennel Club, Inc., 2009 U.S. Dist. LEXIS 71823 (M.D. Fla. 2009). In that case, the applicant was awarded and sought a determination of fees incurred on appeal. The defendants objected to almost half of the requested award complaining that much of the time requested was for the same issues that had been fully briefed at the trial court level. The magistrate judge agreed with the defendants and reduced the requested fee by more than one-half, from $68,510.00 to $33,080.00. In doing so, she pointed out and aptly concluded: Because most of the work had already been done prior to the appeal, the total number of hours expended by Pantas during the appeal was excessive and unreasonable. See, e.g., Hoover v. Bank of Amer., Corp., No. 8:02-CV- 478-T-23TBM, 2006 U.S. Dist. LEXIS 59825, 2006 WL 2465398 (M.D. Fla. Aug. 24, 2006) [*12](concluding that the total number of hours sought by counsel for the appeal was excessive "in light of the prior work done on these same issues," and reducing the total hours billed by one-third); Wilson v. Dep't of Children and Families, No. 3:02-cv-357-J- 32TEM, 2007 U.S. Dist. LEXIS 26739, 2007 WL 1100469 (M.D. Fla. Apr. 11, 2007) (concluding that the total number of hours sought by counsel for the appeal was excessive "in light of the prior work done on these same issues," and reducing the hours billed by one-third); Action Sec. Serv., Inc., v. Amer. Online, Inc., No. 6:03-cv-1170-Orl-22DAB, 2007 U.S. Dist. LEXIS 4668, 2007 WL 191308 (M.D. Fla. Jan. 23, 2007) (concluding that the hours claimed by counsel for the appeal were excessive, and reducing the amount of fees by more than half, from $37,889.50 to $18,000.00). The undersigned likewise finds and concludes that there was a significant amount of billing for identical and similar research, drafting, and appeal preparation, which had already been performed at the administrative proceeding level. Consequently, the undersigned will make the appropriate reduction to the amount(s) allowed. Rule 4-1.5(b)(1)(B) In determining whether a requested fee is reasonable, one factor to be considered is "the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer." There was no compelling evidence provided by Respondent regarding this factor. Respondent's counsel did not provide any tangible examples of particular employment which was rejected or passed upon due to the ongoing representation of Respondent. As a result, the undersigned finds that there was no persuasive evidence presented regarding this criterion which supports the fees requested. Rule 4-1.5(b)(1)(C) In determining whether a requested fee is reasonable, another factor to be considered is "the fee, or rate of fee, customarily charged in the locality for legal services of similar nature." In support of their fee claim, Respondent presented Llaudy as their expert witness with regard to this criterion. Llaudy provided a brief, but sufficient, opinion that the rates charged by Respondent's law firm were reasonable and reflected the hourly rate customarily charged in the Miami area at the relevant time. Tr. p. 168, Line 6-12. Petitioner's expert, Klein, did not persuasively or seriously dispute the reasonableness of the rates charged. The undersigned finds that the hourly rates were reasonable and within the range for prevailing rates in the Miami-Dade County legal community. Rule 4-1.5(b)(1)(D) In determining whether a requested fee is reasonable, a fourth factor to be considered is "the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained." The case on appeal was fairly straightforward. It concerned whether "prevailing party" attorney's fees should have been awarded. The question for the Third DCA was: Did the administrative law judge err when he refused to award the Petitioner prevailing party fees after dismissing the underlying administrative bid protest case? The record demonstrates that the issue on appeal was not overwhelmingly complicated or intricate. When evaluating this factor, the undersigned also considered that Respondent achieved a good result and considered whether Respondent's reasonable attorney's fees should include work and services its counsel conducted in connection with an appellate motion filed pursuant to section 57.105, Florida Statutes. Petitioner argues that the time spent on the motion for sanctions should be entirely discounted because Respondent was "unsuccessful" on this claim, citing Baratta, 928 So. 2d at 495 ("Attorneys' fees should not usually be awarded for claims on which the moving party was unsuccessful."). Although the undersigned does not agree with this argument by Petitioner, the undersigned finds that the time spent on the motion for sanctions by Respondent's counsel was excessive. As a result, time was adjusted accordingly. More specifically, the motion sought sanctions and was voluntarily withdrawn after it was filed, but before the merits of the motion was addressed by the Third DCA. For several reasons, the undersigned finds that it is proper to award fees for work performed on a motion despite the fact that it was voluntarily withdrawn before it was adjudicated on its merit. First, under these circumstances, it was not proven that Respondent was "unsuccessful" on this claim.4/ Although the motion for sanctions was never heard on the merits, it did result, indisputably, in Petitioner's prior counsel withdrawing from the appellate proceedings. As such, the undersigned cannot conclude that Respondent was "unsuccessful" on this claim. Rather, it simply withdrew a motion after gaining some success and some of the relief it sought. Rule 4-1.5(b)(1)(E) In determining whether a requested fee is reasonable, another factor to be considered is "the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional time demands or requests of the attorney by the client." There was no persuasive evidence presented by Respondent regarding this factor, and it does not materially bear upon the award of reasonable attorney's fees in this case. Rule 4-1.5(b)(1)(F) In determining whether a requested fee is reasonable, one factor to be considered is "the nature and length of the professional relationship with the client." There was some evidence presented by Respondent regarding the nature of the professional relationship between the attorneys and Respondent. This included a 10-percent professional discount provided to Respondent, which was taken into account and already credited in the total $120,539.70 requested. There was no compelling evidence regarding the length of the relationship. Therefore, while this criterion was considered when determining a reasonable fee, it did not have a significant bearing on the fee being awarded. Rule 4-1.5(b)(1)(G) In determining whether a requested fee is reasonable, one factor to be considered is the "experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of the effort reflected in the actual providing of such service." Llaudy and Klein both expressed some general knowledge of the attorneys involved, and their reputation and levels of expertise. There was also some limited testimony from Albert E. Dotson, Jr., on this topic. All of this was taken into account both with respect to the rates charged and the hours spent on the case. Rule 4-1.5(b)(1)(H) In determining whether a requested fee is reasonable, a final factor to be considered is "whether the fee is fixed or contingent, and, if fixed as to amount or rate, whether the client's ability to pay rested to any significant degree on the outcome of the representation." In this matter, the hourly rates were fixed and the amount of the fee did not rest on the outcome of the appeal. Ultimate Findings and Conclusions The undersigned finds that the rates charged by the Bilzin Sumberg firm for the attorneys involved in the case were reasonable. However, the undersigned finds that the number of hours expended by the Bilzin Sumberg firm on this matter exceeded the number reasonably necessary to provide the services. Based on the evidence presented and exercising the discretion the undersigned is afforded in a hearing of this nature, the undersigned finds that the reasonable hourly rates and reasonable number of hours expended are as follows: Attorney Reasonable Hourly Rate Reasonable Hours Expended Lodestar amount Albert E. Dotson, Jr. $745.00 18.05 $13,447.25 Eileen Ball Mehta $690.00 28.50 $19,665.00 Jose M. Ferrer $595.00 2.3 $1,368.50 Melissa Pallett-Vasquez $565.00 0.80 $452.00 Eric Singer $495.00 38.9 $19,255.50 Leah Aaronsen $315.00 6.1 $1,921.50 Elise Hotlzman $292.50 72.5 $21,206.25 Maria Ossorio $295.00 7.9 $2,330.50 Jessica Kramer $290.00 6.8 $1,972.00 Maria Tucci $275.00 0.4 $110.00 TOTAL AWARDED $81,728.50 The undersigned has also considered the appropriateness of any reduction or enhancement factors, including the withdrawal of the section 57.105 motion for sanctions. DISPOSITION AND AWARD Based on the forgoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that Respondent's reasonable attorney's fees are determined to be $81,728.50, with recoverable costs in the amount of $461.35 for the total sum of $82,189.85 DONE AND ORDERED this 20th day of November, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 20th day of November, 2018.
The Issue What relief should the Florida Commission on Human Relations provide Petitioner to remedy the unlawful employment practice that Respondent admits that it committed by refusing to further consider Petitioner's application for employment as a correctional officer once it learned that Petitioner is an insulin-dependent diabetic?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner's Employment at the South Florida Reception Center Petitioner previously worked full-time as a Correctional Officer I at the State of Florida Department of Corrections' (DOC's) South Florida Reception Center, a maximum security facility that houses convicted felons. Petitioner and his coworkers at times were asked to work double shifts. On several occasions, Petitioner was threatened with disciplinary action when he refused to work a second shift immediately following the completion of his regularly assigned shift. Prior to the expiration of his probationary period, Petitioner was advised that he was going to be fired. Petitioner requested, and was granted permission by the Superintendent of the facility, the opportunity to resign in lieu of termination. Petitioner resigned his position effective June 27, 1989. Petitioner's Application for Employment with Respondent In October of 1988, while still employed by DOC, Petitioner applied for a Correctional Officer I position with Respondent. Respondent's official job description for the position describes the nature of the work performed by Correctional Officer I's as follows: This is routine security work in maintaining order and discipline among prisoners held in County correctional facilities. Employees in this class are responsible for receiving and controlling prisoners, preventing escapes and enforcing departmental rules and regulations on an assigned shift at a County correctional facility. Duties include maintaining various records on prisoners, supervising work details, transporting prisoners to a variety of medical or correctional institutions, and ensuring the proper discharge of prisoners. Work occasionally involves an element of personal danger during emergencies and in controlling potentially violent prisoners. Duties are performed in accordance with established departmental regulations and security procedures. Supervision is received from a superior officer who reviews work for compliance with established rules and regulations. These duties are similar to those performed by correctional officers who work at the South Florida Reception Center. There was a delay in the processing of Petitioner's application for employment. On April 12, 1990, Iliana O. Garcia, a Personnel Specialist 2 with Respondent, sent Petitioner a letter, the body of which read as follows: We wish to take this opportunity to thank you for placing your application for the position of Correctional Officer 1 with our Department. The time and effort you devoted to your pursuit of this position is sincerely appreciated, however, at the present time, we regret that we are unable to consider your application further. Many exceptional candidates are seeking limited number of positions and this creates a very competitive situation. Please be assured that our decision in your case was based on very careful consideration of your application and qualifications in direct comparison with all others seeking the position and was not a judgment arrived at lightly. Thank you again for your demonstrated interest in our Department, and we wish you success in your endeavors. On May 9, 1990, Louvenia Lee, the Commander of Respondent's Human Resources Bureau, sent Respondent a follow-up letter explaining in greater detail why Respondent was no longer being considered for the position for which he had applied: On February 26, 1990 you were scheduled for a physical examination at Mt. Sinai Medical Center. This exam was another step in the hiring process for a Correctional Officer. However, on the basis of the physical exam, the results were disqualifying. Therefore, your application with the Corrections and Rehabilitation Department was discontinued. The disqualifying results are in accordance with the physical standards set forth in the California Commission on Peace Officer Standards and Training, Chapter IX-1. These standards are utilized by other law enforcement agencies in Metropolitan Dade County. Thank you again for your demonstrated interest in our Department and we wish you success in your endeavors. If I can be of further assistance, please contact me at 547-7052. The results of the physical examination that Petitioner had taken were "disqualifying" because they had revealed that Petitioner was an insulin- dependent diabetic. Lost Earnings Had Petitioner been selected to fill the position for which he had applied, he would have had to have first undergone four months of academy training, starting in late July or early August of 1990, before assuming the duties of a Correctional Officer I. He would have received a stipend of $400 for each month that he was in training. Had Petitioner successfully completed his academy training, he would have been placed on the payroll as a Correctional Officer I on December 3, 1990. Had Petitioner remained on the payroll as a Correctional Officer I from December 3, 1990, to January 3, 1993, 3/ he would have earned a total of $54,142.22 ($47,367.16 for the pay periods reflected on Petitioner's Exhibit 7; $804.83 for the two bonus payments reflected on Petitioner's Exhibit 7; $932.86 for the January 21, 1991, through February 3, 1993, pay period; $972.45 for the March 30, 1992, through April 12, 1992, pay period; and $4,064.92 for the four pay periods immediately following the October 26, 1992, through November 8, 1992, pay period). Mitigation At the time he learned that he was no longer being considered by Respondent as a candidate to fill the Correctional Officer I position for which he had applied, Petitioner had applications for employment pending with two other prospective employers, the City of Hollywood and the Metro Dade Police Department. Both applications were for law enforcement officer positions. In August or September of 1990, Petitioner was informed that neither the City of Hollywood nor the Metro Dade Police Department would be offering him a position. The City of Hollywood advised him that the position for hich he had applied had been filled by another of the over 100 applicants for the position. The Metro Dade Police Department told Petitioner that it could not hire him because he was an insulin-dependent diabetic. Some time shortly after receiving his rejection notice from Respondent, Petitioner applied for a correctional officer position with the Broward Sheriff's Office. He did not get the position. The explanation that he was given was that he had failed the polygraph test he had taken. At the outset of the 1990-1991 school year Petitioner began working as a substitute teacher for the Dade County School Board. He continued working as a substitute teacher during the remainder of the 1990-1991 school year, as well as the following school year. The work was sporadic. Frequently, he would not know until the morning of his teaching assignment that he had the opportunity to substitute teach that day. 25. In 1990, 1991 and 1992, Petitioner earned $694.00, $2,212.50 and $2,360.00, respectively, working as a substitute teacher for the Dade County School Board. In 1992, Petitioner also worked for Publix Super Markets, Inc. (hereinafter referred to as "Publix). His last day of work for Publix was August 14, 1992. Petitioner earned $2,063.78 working for Publix in 1992. From the date he was informed that Respondent had rejected him for employment until January 3, 1990 (hereinafter referred to as the "back pay period"), Petitioner was not otherwise gainfully employed, nor did he, with the exception noted above, seek other gainful employment. During the back pay period, there were various advertised openings for correctional officers at the South Florida Reception Center (hereinafter referred to as the "Center"). These positions offered considerably less pay than Petitioner would have received had be been hired by Respondent. Furthermore, the working conditions at the Center were far inferior to those he would have experienced working for Respondent as Correctional Officer I. Petitioner did not apply for any of these advertised positions because he reasonably believed that to do so would be an exercise in futility given that he had been constructively discharged in June of 1989, from a similar position at the Center. Attorney's Fees and Costs On March 25, 1992, after the Executive Director of the Commission had issued a Notice of Determination: Cause and conciliation efforts had failed, Petitioner executed the following written agreement to retain the law firm of Simon, Schindler and Sandberg, P.A., to represent him in the instant matter: I, the undersigned, do hereby retain and employ the law firm of: SIMON, SCHINDLER & SANDBERG, P.A. 1492 South Miami Avenue Miami, Florida 33130 as my attorneys to represent me, DONALD C. FERRARO, in the petition now pending before the Florida Commission on Human Relations. I fully understand that the fee is based upon an hourly rate of $250.00, which I am obligating myself to pay. I also agree to pay my said attorneys the sum of $100.00 for out-of-pocket expenses. You are authorized to pay or incur liability for all expenses . . . If bills are not paid when due, or a mutually agreeable payment schedule is not made and adhered to, I agree that my attorneys may withdraw as my counsel in any proceeding in which they represent me. Also I agree to bear the cost of collection, including a reasonable attorney's fees, and all other costs. I understand that I will be billed periodically both as to expenses and attorney's fees, and fully agree to pay said bill promptly upon receipt of same. In addition to any other lien contemplated hereunder, we are given a lien on the claim or cause of action, on the sum recovered by way of settlement, and on any judgment that may be recovered, for fees as well as any fund we may have advanced on your behalf for costs in connection with the cause of action. You agree that we have all general, possessory, or retaining liens, and all special or charging liens, known to the common law. If we use the services of an attorney to enforce the terms of this agreement, you agree to pay, in addition to all other sums due us, a reasonable attorney's fee for said enforcement. I further agree that you shall have the right to withdraw from my case: (a) If I do not make the required payments pursuant to this agreement; (b) if I have misrepresented or failed to disclose material facts to you; or (c) if I fail to follow your advice. In any of the foregoing events, I agree to execute any such documents permitting you to withdraw. The Attorney is an officer of the court and is bound by the rules regulating the Florida Bar. The client acknowledges and understands that while an attorney accepts this employment and promises to render professional legal services to the best of his ability during the continuation of this employment, that the attorney makes no warranties, representations or guarantees regarding the favorable outcome, result or successful termination of the representation and that this Retainer Agreement is not "contingent" thereon. The client agrees to fully cooperate with the attorney; to do nothing which would compromise the attorney's professional ethics; and not to request or require the attorney to do anything in violation of the Rules of Professional Conduct. If the client has misrepresented or failed to disclose any material facts, refuses to follow the attorney's advice, or fails to be available as necessary for preparation, conferences, depositions, hearings or other court proceedings, the attorney may withdraw from representation with leave of court. I acknowledge that you have made no representations or guarantees concerning the outcome of this case. I agree to the above terms and conditions of this Retainer Agreement and further acknowledge that I have received a copy thereof. Pursuant to this retainer agreement, the law firm of Simon, Schindler and Sandberg, P.A., (hereinafter referred to as the "Firm") provided Petitioner with legal representation in this matter. Roger J. Schindler, Esquire, a name partner in the Firm, was the most senior of the Firm's attorneys who worked on Petitioner's case. Schindler is a Florida-licensed attorney who has been practicing law in this state since the spring of 1970. He has litigated numerous civil rights actions. Schindler's hourly fee is $250.00. Through November 11, 1992, Schindler had reasonably spent 49.00 hours performing various tasks in connection with the instant case for which Petitioner has been billed $12,200.00 based upon a reasonable hourly fee of $250.00. Through November 11, 1992, Joe Constant, a Florida-licensed attorney and one of the Firm's associates, had reasonably spent 16.20 hours performing various tasks in connection with the instant case for which Petitioner has been billed $2,673.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, another of the Firm's associate attorneys had reasonably spent one hour working on legal research done in connection with the instant case for which Petitioner has been billed $165.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, a law clerk working for the Firm had reasonably spent 11.80 hours performing research-related tasks in connection with the instant case for which Petitioner has been billed $885.00 based upon a reasonable hourly fee of $75.00. The Firm has also billed Petitioner a total of $368.22 for costs reasonably incurred through November 11, 1992, in connection with the instant case. Through November 11, 1992, the Firm had billed Petitioner a total of $16,391.22 ($15,923.00 for attorney's fees and $368.22 for costs), but had not received any payments from Petitioner, notwithstanding that, under the retainer agreement, he was responsible to pay the Firm this entire amount regardless of the outcome of the instant case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order (1) finding that Respondent committed the unlawful employment practice alleged in Petitioner's Petition for Relief, (2) prohibiting the practice, (3) awarding Petitioner back pay in the amount of $55,742.22, together with prejudgment interest thereon at the statutory rate of 12% per annum, (4) awarding Petitioner reasonable prehearing attorney's fees and litigation costs in the amount of $16,391.22 ($15,923.00 for fees and $368.22 for costs), and (5) awarding Petitioner reasonable attorney's fees and litigation costs for work performed, and costs incurred, by the Firm in connection with this case after November 11, 1992, in an amount to be determined by agreement of the parties or, in the absence of such agreement, by subsequent Commission order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1993. STUART M. LERNER 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 26th day of February, 1993.
