The Issue An administrative complaint dated January 22, 1998, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, by failing to disclose a felony conviction on her application for licensure as a real estate salesperson. The issue for disposition in this case is whether that violation occurred and, if so, what penalty is appropriate.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to statutes and rules governing the practice of real estate in the State of Florida. Respondent is a real estate salesperson in Florida, practicing her licensed profession in Orlando, Florida. At the age of eighteen Respondent had a child out of wedlock and was required to leave her home. She moved to New York City with her child, found work, and entered into a relationship that within a few months turned severely abusive. Under threats or inducements by the abusive partner, Respondent committed a crime and on November 16, 1972, she entered a plea of guilty to grand larceny in the third degree in the Supreme Court of the State of New York. Respondent was sentenced to five years probation and ordered to pay $15,000 in restitution. Working in the office of her legal aid attorney, Respondent was able to pay the restitution in full and her probation was terminated on September 29, 1978. Although she still remembers in vivid detail her arrest, her fear for her child's well-being, her brief period in jail and representation by a court-appointed attorney, Respondent believed that her debt was paid when she was released from probation and she moved on with her life. Respondent obtained a New York real estate license and was employed for a time by a large New York firm. She also worked other responsible jobs before moving from New York to Florida. Eventually her New York license lapsed since she did not keep it active. In an application signed by Respondent on November 29, 1994, she applied for licensure as a real estate salesperson in the State of Florida. The application form includes this question no. 9: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent signed the application before a notary public and her signature appears below this affidavit statement printed on the form: The above named, and undersigned, applicant for licensure as a real estate salesperson, under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquires concerning his/her qualifications. (Emphasis added.) Respondent falsely checked the response "no" to the question described in paragraph 9, above. Even though she had been employed by the attorney who represented her in her New York criminal case Respondent did not consult him or any other lawyer for advice on how to respond to the application question at issue. Nor did she contact the New York court to determine the status of her records. Instead, Respondent relied on the fact that she had similarly withheld information on her New York licensure application without apparent consequence and she felt that she was through with the ordeal after she successfully completed the terms of her sentence. Respondent is an articulate, intelligent and competent professional woman. In order to answer "no" she had to deliberately disregard the clear plain language of question No.9. Moreover, the fact that she was subsequently employed by the attorney who represented her belies her disavowal of understanding the legal consequences of her arrest, plea of guilty, and 5-years' probation. The tragic circumstances surrounding her crime some 26 years ago could have been considered by the Florida Real Estate Commission if Respondent had disclosed them at the time of her application. The circumstances do not explain or excuse her failure to disclose the crime. The State of Florida issued Respondent her Real Estate Salesperson License No. 0621781 on March 16, 1995, after Petitioner reviewed her application and her examination results. Since her licensure in Florida Respondent has practiced without other disciplinary incidents and enjoys the respect and high recommendation of persons with whom she has worked.
Recommendation Based on the foregoing, it is RECOMMENDED: that the Florida Real Estate Commission enter its final order finding Respondent guilty of violating Section 475.25(1)(m), Florida Statutes, and revoking her real estate salesperson's license. DONE AND ENTERED this 24th day of July, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1998. COPIES FURNISHED: Christine M. Ryall, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Carol Louise Ziselman Apartment 625 5112 Park Central Drive Orlando, Florida 32839 Thomas V. Infantino, Esquire Post Office Drawer 30 Winter Park, Florida 32790-0030 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner demonstrated entitlement to issuance of a Florida Educator?s Certificate.
Findings Of Fact Respondent, as Commissioner of the Florida Department of Education, is charged with the duty to issue Florida Educator's Certificates to persons seeking authorization to become school teachers in the state of Florida. Petitioner is a second-grade teacher. She is in her third year of teaching. Pending action on her application for an Educator's Certificate, Petitioner has taught under the authority of temporary Statements of Eligibility. She currently teaches at George W. Monroe Elementary School in Quincy, Florida. On or about April 17, 2012, Petitioner submitted an on- line application for a Florida Educator's Certificate in Elementary Education. The application included a field with the heading “CRIMINAL OFFENSE RECORD(S)(Report any record other than sealed or expunged in this section). In her application, Petitioner disclosed the following criminal offenses, their dates, and their dispositions: Affray - June 2002 - Probation Conspiracy to Possess Marijuana - August 2006 - Guilty/Adjudicated Petty Theft - April 2000 - Pretrial Diversion Disorderly Conduct - February 2001 - Probation DWLS - February 2001 - Probation In conjunction with her application, Petitioner submitted information to substantiate those offenses that she could remember, as well as a set of fingerprints. Included in Petitioner?s submittals to Respondent was a copy of the Judgment in a Criminal Case, United States of America v. Torreya Haynes, Case No. 4:06cr10-03(S), from the United States District Court for the Northern District of Florida, dated August 3, 2006. Petitioner stipulated that she is the person identified in the Judgment as Torreya Haynes. The acts upon which the Judgment was based concluded on August 15, 2005. The Judgment established that Petitioner pled guilty to the offense of Conspiracy to Distribute Marijuana, and was sentenced to a three-year term of probation and payment of a special monetary assessment of one-hundred dollars. The parties stipulated to the following facts regarding Petitioner?s criminal record: On or about March 5, 2000, the Applicant was arrested and charged with Petit Theft in Leon County, Florida. The Applicant entered into a pre-trial diversion program and a “No Information” was filed on the charge. On or about July 20, 2000, the Applicant was arrested and charged with Affray in Leon County. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about August 20, 2001, the Applicant was arrested and charged with Disorderly Conduct/Affray in Leon County, Florida. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about June 9, 2004, the Applicant was arrested and charged with Battery in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about August 4, 2004, the Applicant was arrested and charged with Possession of Marijuana in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about February 2, 2005, the Applicant was arrested in Miami-Dade County, Florida, and charged with Possession of Cannabis. The Applicant entered into a pre- trial diversion program called “Court Options” and the charge was nolle prossed. In addition to the foregoing, Petitioner testified that she did not list a 2001 arrest for passing a worthless bank check, to which she pled no contest and received probation. Petitioner did not list the offenses in sub-paragraphs 7.b. through 7.f. and in paragraph 8. in the application. On September 19, 2012, Respondent served Petitioner with a 10-count Notice of Reasons advising her that her application for a Florida Educator's Certificate was denied. Petitioner timely filed an Election of Rights that requested a formal hearing. Petitioner will be unable to continue to teach students in Florida without a valid Educator?s Certificate. Thus, Petitioner is substantially affected by the intended decision to deny her certification, and has standing to contest the intended action. From her March 5, 2000 arrest for Petit Theft, which occurred when she was 19 years of age, until the August 15, 2005, date of the conclusion of the offense of conspiracy to distribute marijuana, which occurred when she had just turned 25 years of age, Petitioner was arrested and entered into some form of official disposition of the offenses on, at best count, twelve occasions. Despite the relatively light nature of the dispositions, generally consisting of pretrial diversion or probation, the charges were serious, including multiple drug charges, battery, and affray. “Chaotic” would be an apt description of those years of Petitioner?s life. In her application for an Educator?s Certificate, Petitioner answered truthfully that she had criminal offenses in her background, and listed what she remembered. Petitioner testified that she completed the application from memory and thought she had answered the questions posed, but did not try to recover paperwork or records from the clerk of court. Petitioner understood that her fingerprints submitted with her application would provide the Department with access to her complete criminal record, and expected that the background check would disclose her record in the application process. A review of the application form shows there to be five spaces for information to be entered. There was no evidence that additional spaces were provided. It is not known how offenses were to be listed if they numbered more than five. Petitioner listed her federal conviction as “conspiracy to possess marijuana,” and indicated that she was adjudicated guilty. Petitioner testified that she had originally been charged with conspiracy to both possess and distribute marijuana. She was convicted of conspiracy to distribute marijuana, but confused the charges when filling out the application. Petitioner provided Respondent with a copy of the conviction, which plainly identified the offense for which she was convicted. There was no effort to conceal or falsify the nature of the conviction. Rather, the error was just that, an error. In the more than eight years that have passed since the conclusion of the last acts that constituted the conspiracy to distribute marijuana, Petitioner appears to have turned a corner. Petitioner?s actions since 2005 show a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. She married, and has a child with a second on the way. She is active with her school, her family, and her church. She went back to school and earned a Master?s Degree in Public Administration. She has taught for more than two years without incident or complaint. Petitioner expressed a sincere interest and concern for the children under her tutelage. Petitioner?s testimony that “I?ve grown up. I?m not the same person that I was before,” was convincing, and leads to the conclusion that she has substantially rehabilitated herself. Based on Petitioner?s demeanor and sincerity at the hearing, the undersigned finds her testimony to be credible and worthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner, Torreya Landrea Davis?s application for an Educator?s Certificate, subject to such reasonable conditions as will allow the Commission to monitor and ensure Ms. Davis?s continued attention to and compliance with the standards necessary for maintaining the Educator?s Certificate in good standing. DONE AND ENTERED this 13th day of December, 2013, in Tallahassee, Leon County, Florida. S GARY EARLY 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 13th day of December, 2013.
The Issue The basic issues in this case are whether Petitioner, Michael Addicott, is entitled to recover attorney’s fees and costs from Complainant/Respondent, Robert Nieman, as provided in Section 112.317(8) Florida Statutes, and, if so, the amount of such attorney's fees and costs.
Findings Of Fact Nieman's ethics complaints against Addicott On or about June 14, 2002, Robert Nieman ("Nieman") filed a complaint with the Florida Commission on Ethics ("Ethics Commission") against Michael Addicott ("Addicott"). At that time Nieman was a police officer of the Town of Golden Beach who was in a work status of suspended with pay, pending investigation of allegations that Nieman had engaged in some form of misconduct. At the time the subject complaint was filed, Addicott was the Mayor of the Town of Golden Beach. At all times material to this case, Addicott has been the Mayor of the Town of Golden Beach or has been a candidate for the office of Mayor. Nieman's June 14 complaint to the Ethics Commission contained four numbered paragraphs. Each numbered paragraph described a separate incident involving alleged conduct by Addicott that Nieman believed was inappropriate and that Nieman believed should be investigated by the Ethics Commission. The only one of those paragraphs that appears to be relevant and material to the issues in this case is paragraph 2, in which Nieman alleged the following: Mayor Addicott's son had a hit and run accident within the Town's jurisdiction; hitting and knocking down a concrete light pole. When the criminal accident was being investigated and the son approached about the crime, the Mayor's wife, who was a Councilperson at the time, badgered and tried to intimidate the officers (myself included. I was a sergeant at the time), raising her voice and stating that we were "picking on her son." She interfered with our investigation of the vehicle. The son later admitted to the incident and after discussions with the then Chief by Mr. and Mrs. Addicott, no further action was taken by the Golden Beach Police Department. On or about September 20, 2002, Nieman filed an amendment to his original Ethics Commission complaint against Addicott. The amendment appears to have been in response to a request by the Ethics Commission for additional information about the allegations in Nieman's June 14 complaint. The amendment to the complaint was also arranged in four separate numbered paragraphs, each providing additional information about essentially the same four events that were described in the original complaint of June 14. Two of the numbered paragraphs in the amended complaint appear to be relevant and material to the issues in this case. The primary subject matter of paragraph 1 concerns allegations that one of Addicott's sons, Aaron Addicott, received special treatment by being paid for hours when he did not report to work as a lifeguard. However, the last sentence of paragraph 1 of the amended complaint alleges the following new event not alleged in Nieman's original complaint: "The lifeguard [Addicott's son] was hired when the Mayor [Addicott] was in office." And paragraph 2 of Nieman's amended Ethics Commission complaint added the following allegations about the automobile accident episode. With regard to the auto accident, both the Mayor and the former Councilperson, his wife, used their position to have the accident ignored, Mrs. Addicott responded to the scene of the accident and Mrs. Addicott directly told the police department not to take any action and that they better let up on her son. Both the Mayor and Mrs. Addicott discussed the matter with the former Police Chief and told him not to interfere. The Chief was later forced to resign. As the Mayor was running for election at the time, it benefited him by his son not being arrested for leaving the scene of an accident. This is the same son who is the absentee lifeguard. Also, no reimbursement was received from the Mayor, his wife or son for the damage to the Town's property. The subject matter scope of the fee petition The Fee Petition in this case asserts, in general terms, that Nieman acted with malice by filing complaints against Addicott with knowledge that the complaints contained one or more false allegations, or with reckless disregard as to whether the complaints contained false allegations. The Fee Petition does not assert that all of the allegations in Nieman's complaints against Addicott were known to be false or were made with a reckless disregard as to whether the allegations were false. Rather, only two of the events alleged in Nieman's complaints are specified in the fee petition as being events about which Nieman knowingly made false allegations or about which Nieman made statements with a reckless disregard as to whether the allegations were false. The paragraphs of the Fee Petition which describe those two specific events appear at paragraphs 6, 7, 8, and 9 of the Fee Petition, which read as follows: One of the factual underpinnings of Nieman's Complaint is that Petitioner [Addicott] interfered with a police investigation into an automobile accident involving Aaron Addicott, Petitioner's son. Nieman admitted that he had no personal knowledge regarding this allegation, and that he was not personally involved in the investigation. Incredibly, Nieman admitted that the accident took place before Addicott was elected Mayor! *** This is certainly a reckless, if not knowing, false allegation which is material to a violation of the Florida Ethics Code. At the time of the alleged incident, Nieman was the Police Chief of the Town of Golden Beach, and certainly had access to all the necessary records to verify his allegations, and therefore knew or should have known that his allegations were false. Nieman also alleged that Mayor Addicott hired his son, Aaron Addicott, to be a Town of Golden Beach part-time lifeguard, which was in violation of the Florida Ethics Code. However, Nieman admitted that he had no personal knowledge regarding the Petitioner's involvement in the hiring of his son. *** In fact, Addicott had NO involvement in hiring his son, nor does the Golden Beach Town Charter recognize that the town Mayor need have any involvement in hiring lower level town employees, such as part-time life guards. At the time of the filing of the Complaint [with the Ethics Commission], Nieman's allegation that Petitioner hired his son was made with the knowledge that it was false, or at the very least with reckless disregard as to whether it was true, as is evidenced by Nieman's own admission that he had no personal knowledge of the alleged violation. Aaron's employment as a lifeguard Section 4.01 of Article IV of the charter of the Town of Golden Beach sets forth the powers and duties of the mayor. Subsection (b) of that section describes the "administrative duties" of the mayor, which include: The mayor shall nominate a town manager who shall be appointed by resolution of the council. The mayor, together with the town manager, shall carry out all administrative duties as provided by the charter, ordinance or resolution of the council. The mayor shall approve all written orders, administrative policies and acts of the town manager. The mayor shall upon recommendation of the manager appoint and when deemed necessary, discipline, suspend or remove town employees. (Emphasis added.) The mayor shall upon the recommendation of the manager appoint department heads to administer the government of Golden Beach. Appointments and terms of employment shall be approved by resolution of the council. Department heads shall carry out the administrative orders of the manager and the mayor and may be disciplined, suspended or removed by the mayor as may be recommended from time to time by the manager. A department head may appeal the decision of the mayor to the personnel board in the same manner as an employee. Prior to the date on which Addicott became mayor of the Town of Golden Beach, two of his sons (Benjamin and Aaron) sometimes worked for the Town in the capacity of "fill-in" lifeguards. During that same time period, a number of other people, most of whom had regular jobs as lifeguards in nearby communities, would also work for the Town of Golden Beach in the capacity of "fill-in" lifeguards. Although all of the people who worked for the Town as "fill-in" lifeguards were paid for the time they worked, none of those people were regular employees of the Town with regular scheduled work hours. Rather, all of the people who worked as "fill-in" lifeguards worked on an "as needed" basis. At some time in March of 1999, shortly after Addicott became the mayor of the Town, Aaron Addicott, was placed on the Town payroll in some sort of regular weekend part-time lifeguard position, in which his work as a lifeguard was primarily on Saturday and Sunday. This was a change in the terms and conditions under which Aaron Addicott performed lifeguard services for the Town. The specific nature of the change in March of 1999 is not contained in the record of this case, but it appears that following that change, Aaron Addicott was, essentially, the Town's weekend lifeguard, and another lifeguard worked the other five days of the week. Following the change in Aaron Addicott's terms and conditions of employment in March of 1999, Aaron Addicott's work as a lifeguard continued to be on Saturday and Sunday, with the exception of occasional days when he filled-in for the regular lifeguard when the regular lifeguard was unable to work. On or about August 26, 1999, at a time when Michael Addicott was serving as mayor of the Town of Golden Beach, an interoffice memo reading as follows was sent to him by Rosemary Wascura, who was then the Interim Town Manager: To: Mayor Michael Addicott From: Rosemary J. Wascura, Interim Town Manager Date: August 26, 1999 Re: Appointment of Lifeguards 102-99 Following our recent conversation regarding the appointment of Lifeguards, please see below the following recommendation: That effective September 1, 1999 John Fialowsky be hired as the Town's full-time Lifeguard. Compensation is $13.00 per hour and his hours are Monday and Tuesday 7:00 am. - 7:00 pm., and Wednesday, Thursday and Friday 7:00 am. - 2:00 pm. That effective September 1, 1999 Aaron Addicott be hired as the Town's part-time Lifeguard. Compensation is $9.25 per hour and his hours are Saturday and Sunday 7:00 am. - 7:00 pm., and Wednesday, Thursday and Friday 2:00 pm. - 7:00 pm. [_] APPROVED [_] NOT APPROVED Michael Addicott Mayor Mayor Addicott placed a check mark in the "approved" box and then signed the interoffice memo quoted above and returned it to Ms. Wascura on or before the effective date mentioned in the memo. By approving and signing the recommendation, Mayor Addicott hired his son as "the Town's part-time Lifeguard," which was a new position of employment that had not previously existed at the Town of Golden Beach. Notwithstanding the job title of "part-time lifeguard," the position Aaron Addicott was hired to fill in August of 1999 was a full-time position of employment in which he was scheduled to work a total of five days per week for a total of 39 hours per week. In both March of 1999 and in August of 1999, the effective hiring authority was vested in the mayor of the Town of Golden Beach. Such being the case, the final decision to hire Aaron Addicott on both of the occasions in 1999 described above was made by Mayor Addicott. Aaron's motor vehicle accident Very shortly before the election at which Addicott was elected mayor of the Town of Golden Beach, Aaron Addicott was involved in a one-vehicle motor vehicle accident in which the vehicle driven by Aaron Addicott struck a light pole and knocked the light pole down. The location of the accident was a block or less from the Addicott home. Shortly after the accident, Aaron Addicott left the scene of the accident and drove the short distance to the Addicott home. Nieman saw the accident happen, and shortly thereafter, police officers of the Town of Golden Beach, including Sergeant Nieman, arrived at the Addicott home and attempted to conduct an investigation of the accident that Aaron Addicott had just been involved in. Mrs. Addicott, the wife of the soon-to-be mayor and the mother of Aaron, refused to cooperate with the efforts of the police officers to investigate the accident and ordered the police officers to leave the premises of the Addicott home. Mrs. Addicott also chastised the police officers for picking on her son and demanded that they leave her son alone. Although Aaron Addicott at first denied involvement in the motor vehicle accident, a few days after the accident he went to the police station in the Town of Golden Beach and acknowledged his involvement in the accident. Aaron Addicott was never charged with any civil or criminal violation arising from the accident or from his act of leaving the scene of the accident. Another police officer told Nieman that Mr. and Mrs. Addicott (Aaron's parents) had met with the Chief of Police of the Town of Golden Beach shortly after the accident. Nieman does not appear to have conducted any further inquiry to confirm the information that Mr. and Mrs. Addicott had met with the Chief. Nieman believed that Aaron should at least have been charged with the violation of leaving the scene of an accident. When no charges were forthcoming, Nieman formed the opinion that Mr. and Mrs. Addicott, during the meeting he believed they had with the Chief, had "used their position[s] to have the accident ignored" and had told the Chief "not to interfere." The Town of Golden Beach did not receive any reimbursement for the damage to the light pole caused by Aaron's motor vehicle accident from Aaron Addicott or from either of Aaron's parents.1 From time to time when Aaron Addicott was scheduled to be working as a Town lifeguard, he would be absent from work and the town manager would receive complaints that Aaron was not working when he should be working. This is the same Aaron Addicott who was involved in the motor vehicle accident described above. The actual knowledge issue With regard to the factual allegations at issue here, at the time of making those allegations Nieman did not have actual knowledge that any of those allegations were false.2 The reckless disregard issues With regard to the factual allegations at issue here, at the time of making those allegations Nieman did not make any of the subject allegations with a "reckless disregard" as to whether they were true or false. Quite to the contrary, Nieman did not at any time entertain any "serious doubts as to the truth" of his allegations. Similarly, Nieman did not at any time have any "high degree of awareness" of the "probable falsity" of the subject allegations.3 Attorney's fees and costs The real party in interest; i.e., the entity that will be the beneficiary of any award of attorney's fees and costs in this proceeding, is the Town of Golden Beach. That is because it is the Town that retained and agree to pay for legal representation of Mayor Addicott in both the defense of the underlying Ethics Commission complaint and in the prosecution of this fee petition. The Town retained the law offices of Stuart R. Michelson. As of June 17, 2004, the date on which the final hearing in this case began, Mr. Michelson's law offices had submitted three bills to the Town. Those bills cover costs and attorney's fees incurred from July 2, 2002, through June 4, 2004. Those bills itemize a total of 59.70 hours of attorney's services, for which the Town was billed $10,650.00. The three bills discussed immediately above also itemize a total of 5.60 hours of law clerk services, for which the Town was billed $420.00. The three bills discussed immediately above also itemize a total of $1,402.54 of costs. The types of costs itemized include such things as in-house photocopy costs, Fed-Ex and similar express mail charges, facsimile charges, postage charges, long distance telephone charges, and some miscellaneous travel-related charges such as car rental, parking, air fare, and gasoline. The itemized costs also include at least one "miscellaneous services charges/fee" in the amount of $12.50 and one in-house photocopying charge in the amount of $447.50. With regard to the three bills discussed above, there was no testimony under oath that any of the services itemized in the bills had actually been performed. There was no testimony under oath that the bills were accurate. There was no testimony under oath explaining any details about the nature of the services performed or explaining why, or whether, the services were reasonable, necessary, or appropriate. There was no testimony under oath stating whether all of the services and costs itemized in the three subject bills relate only to the fee petition and the underlying ethics complaint in this proceeding, or whether some of the itemized services and costs relate to other similar litigation matters in which the Town has a beneficial interest that were pending at the same time.4 An expert witness was retained to express legal opinions on two basic issues: (1) an opinion as to the issue of whether Addicott is entitled to an award of attorney's fees and costs against Nieman pursuant to Section 112.317(8), Florida Statutes, and, if entitled, (2) an opinion as to the reasonable amount of such an award. The Town agreed to pay the expert witness for his services in this case on an hourly basis. The agreed upon hourly rate for the services of the expert witness is either $200.00 per hour or $225.00 per hour.5 The expert witness does not know how many hours he spent preparing for and presenting his expert opinions in this case.6 The expert witness reviewed and testified about a few details of the costs itemized on the three bills discussed above, but he never clearly expressed any opinion as to whether the costs itemized on the three bills are reasonable or unreasonable.7 The expert witness testified to several expert legal opinions regarding the manner in which the present language of Section 112.317(8), Florida Statutes, should be construed, interpreted, and applied. He also opined as to the extent to which cases decided under the old language of Section 112.317(8), Florida Statutes, were useful in determining entitlement to attorney's fees and costs under the current version of Section 112.317(8), Florida Statutes.8 The expert witness also testified about how many hours it would have been reasonable for the attorneys for Addicott to have worked from June 4, 2004, through the end of the first day of the final hearing in this case, which was June 17, 2004. There is not, however, any testimony as to how many hours of attorney services were actually performed during the period from June 4 through June 17, 2004. In both the defense of the underlying ethics complaints against Addicott and in the preparation and the prosecution of the fee petition in this case, services billed at an hourly rate have been performed by three lawyers in the law firm representing Addicott; specifically, Mr. Michelson (a partner), Mrs. Michelson (a partner), and Mr. Birch (an associate attorney). Reasonable and typical hourly rates that are charged for the types of attorney services that were performed in the course of the subject cases are as follows: Mr. Michelson $200.00 per hour Mrs. Michelson $200.00 per hour Mr. Birch $135.00 per hour In both the defense of the underlying ethics complaints against Addicott and in the preparation and the prosecution of the fee petition in this case, services billed at an hourly rate also have been performed by law clerks employed by the law firm representing Addicott. A reasonable and typical hourly rate that is charged for services of a legal nature performed by law clerks in cases of this nature is $75.00 per hour.9 Following the conclusion of the administrative hearing before the Division of Administrative Hearings in this case, in the normal course of events, the attorneys representing Addicott will need to spend a number of additional hours before their work on this matter is finished. Post-hearing tasks include such matters as preparation of proposed recommended orders, preparation of exceptions to the recommended order or preparation of responses to exceptions filed by an opposing party, preparation of memorandums related to exceptions, and perhaps an appearance before the Ethics Commission to present oral argument prior to issuance of the Final Order.10
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Petition in this case and denying all relief sought by the fee Petitioner, Michael Addicott. DONE AND ENTERED this 4th day of November, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2004.
The Issue Whether Lawrence Phelps' Pari-Mutuel Wagering Occupational License should be disciplined?
Findings Of Fact On May 19, 1986, Lawrence Phelps executed and filed an application with the Division for a Pari-Mutuel Wagering Occupational License. The Division approved Mr. Phelps' application for license and issued license number 0053382 on May 28, 1987. Mr. Phelps was requested to inform the Division in question number four of the application whether, among other things, he had "ever been convicted of . . . Bookmaking?" Mr. Phelps answered this question by placing an "X" next to the response "No." On November 16, 1978, Mr. Phelps was adjudicated quality by the State of New York, County of Columbia County Court, of the offense of "possession of gambling records second degree" a violation of Section 225.15 of the New York State Penal Code. Mr. Phelps was fined five hundred dollars. On March 6, 1979, Mr. Phelps was convicted by the City of Hudson, New York, City Court, of "gambling second degree" a violation of Section 225.05 of the New York State Penal Code, and "possession of gambling records second degree." Mr. Phelps was fined $250.00 and $150.00, respectively, for these offenses. On March 26, 1980, Mr. Phelps was adjudicated guilty by the State of New York, County of Columbia County Court, of the offense of "possession of gambling records second degree." Mr. Phelps was again fined five hundred dollars. Mr. Phelps did not inform the Division of his three convictions in New York of possession of gambling records in the second degree or his conviction of gambling in the second degree. Mr. Phelps' convictions involving gambling all relate to a "policy (numbers) operation." Mr. Phelps believed that he properly answered the question concerning whether he had been convicted of the offense "bookmaking" when he completed his May 19, 1986, application for a Pari-Mutuel Wagering Occupational license. Mr. Phelps believed that "bookmaking" pertains to a particular type of gambling which he has not been convicted of engaging in. Mr. Phelps moved to Florida from New York and began employment with a greyhound dog race track located in Jacksonville, Florida. Mr. Phelps has been licensed by the Division since 1981. Mr. Phelps has been barred from employment at the track for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that Mr. Phelps has been convicted of an offense connected to wagering in violation of Rule 7E- 2.005(6), Florida Administrative Code. It is further RECOMMENDED that the Department suspend Mr. Phelps' Pari-Mutuel Wagering Occupational license, number 0053382, for a period of twelve (12) months from the date that Mr. Phelps was first barred from race tracks in Florida. DONE and ENTERED this 11th day of July, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1297 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 3. 3 6. The fact that Mr. Phelps did not apply for a hearing on readmittance is not relevant to this proceeding. 4 4. 5 5. 6 Except for the fact that Mr. Phelps associated with a man by the name of Nicky Laperia, these prosed findings of fact are not supported by the weight of the evidence and are based upon hearsay. 7 Irrelevant. 8 5. 9 Irrelevant and argument. COPIES FURNISHED: Thomas A. Klein Deputy General Counsel Department of Business Regulation The Johns Building 125 South Bronough Street Tallahassee, Florida 32399-1000 Lawrence Phelps 6024 Highway 17 South Green Cove Springs, Florida 32043 Billy Vessel, Director Department of Business Regulation Pari-Mutuel Wagering Rhode Building 401 Northwest 2nd Avenue Suite N - 1026 Miami, Florida 33128-1705 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
