The Issue On September 18, 1991, the Florida Commission on Ethics (EC) entered its order finding probable cause that Respondent, Mitchell Kinzer, a member of the Surfside Town Commission, violated section 112.313(6), F.S., by improperly using public funds for personal purposes; and that he violated section 112.3135(2)(a), F.S., by participating in his wife's appointment to the Community Center Advisory Board. The issues for disposition are whether those violations occurred, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent, Mitchell Kinzer (Kinzer) has served eight two-year terms on the Surfside Town Commission (Commission); he was mayor for three of those terms, including 1988-90 (term ending in mid-March). He is also an assistant principal in the Dade County public schools and has worked in the Dade County School District for the past thirteen years. Surfside is a tiny incorporated municipality in Dade County, Florida, with a population of slightly over 4,000 and comprised of less than one-half a square mile. It is governed by a five-member commission, including the mayor. The commissioner who receives the most votes in an election is designated the mayor for that two-year term. Commissioners, and the mayor, serve with a nominal one-dollar per year compensation. The mayor's role is largely ceremonial. He or she, as well as the commissioners, represent the city at various social, cultural and civic functions. The commission meets once a month and its committees meet more frequently. Its policy directives are executed by the town manager/finance director who serves at the pleasure of the commission. Use of Public Funds Prior to 1989, the commissioners were reimbursed for their expenses by submitting a voucher or petty cash slip and receipts. There was an annual limit of $800.00 or $1,000.00, with more, probably $1,500.00, for the mayor. From time to time the town manager would challenge these requests as being unrelated to city business. Hal Cohen, who has been Surfside's town manager/finance director since 1981, rarely argues now. In his view there are too many "grey areas" and he has become tired of the debates. Commissioners and their spouses have routinely been reimbursed for expenses related to their attendance at concerts and other events on behalf of the city. In August 1989, the commission approved a resolution providing a flat monthly rate for the mayor and commissioners. That resolution #1256 took effect October 1, 1989, and provided, in pertinent part: Section 2. That the Mayor of the Town of Surfside be permitted to recover monies in behalf of the Town of Surfside for representing the Town at governmental and civic functions in an amount not to exceed $1,500.00 per year in office, prorated and paid monthly in advance. Section 3. That the Members of the Town Commission each be permitted to recover monies expended in behalf of the Town of Surfside for official representation, registration and expenses while attending established governmental and civic functions in an amount not to exceed $1,000.00 per year in office, prorated and paid monthly in advance. (Advocate's Exhibit #7) Kinzer understood that the "allowance", as it was called, could be spent on virtually anything, but that any portion that was not used for commission-related duties would have to be reported to the Internal Revenue Service as taxable income. On the advice of his accountant, he kept a running list of his expenditures and submitted the list to Hal Cohen. Other commissioners did not submit such lists. The following items appearing on Kinzer's list are the subject of the Advocate's prosecution in this case: 4/25/90 Plant/Secretary's day $29.63 4/29/90 Concert ticket and Mileage 17.20 4/30/90 Police dinner mileage .60 5/01/90 Long distance call to Town Manager 5.00 5/07/90 Mileage and parking to state attorney's office 7.00 5/16/90 Meal and mileage--Chamber of Commerce meeting 20.40 5/16/90 Theater of Performing Arts; mileage 3.00 5/17/90 Dry cleaning 11.25 In May 1990, the commission approved a resolution deleting the earlier resolution allowing for advance payment of expense monies. The action was made retroactive to May 1, 1990. Kinzer maintained his expense list through the end of May and then quit. The process returned to the reimbursement method that had been in effect before. Kinzer was reimbursed, or compensated in advance, for each of the items at issue. He contends that they were related to his activities on behalf of the town of Surfside. The plant was for the town secretary, an individual who worked for the town. In the past, this type of purchase was reimbursed, according to Hal Cohen. The concert expenditure was for Kinzer and his wife. The call to the town manager was related to town business. Hal Cohen lives in Hollywood, Florida, a long-distance toll call. The mileage and parking at the state attorney's office was related to the complaint filed in this case. The police dinner, chamber of commerce meeting and Theatre of Performing Arts were functions at which Kinzer represented the town of Surfside. Kinzer explained the dry cleaning bill in this manner: Q Okay. What was the council-related duty that resulted in a cleaning bill? A Again, I was attending a luncheon for the suit[sic], it was a luncheon and the waiter spilled something all over my suit and I felt that it should be cleaned because I was there representing the town and also I had a sport coat that was soiled at an evening a few nights before, so I had those cleaned and I got reimbursement. (Advocate's Exhibit #2, p. 45) With the exception of the cleaning bill, the items at issue are either plainly related to the commissioner's duty or were the type of items that had been over time considered proper for reimbursement by the town. There was no evidence of guidance provided to the commissioners other than a case by case informal determination by a town manager weary of disputes and subject to removal by a majority of the commission. Although some guidance is provided to employees of the Dade County School District with regard to appropriate expenditures and Kinzer as an assistant principal is aware of that guidance, his duties as an employee of the school board and duties as a city commissioner are quite different. The Board Appointment On May 8, 1990, the commission adopted a resolution creating a five- member advisory board for the Surfside Community Center for the purpose of advising the commission on improvements of operations and facilities at the center. Appointment to the board was by nomination by a member of the commission with approval by a majority of a quorum. Regan Kinzer, Respondent's wife, wanted to serve on the new board. He discouraged her as he felt the board was simply political, and one politician in the family was enough. She went to Commissioner Novack who nominated her on June 12, 1990. Her nomination was unanimously approved. Respondent Kinzer was present and voted. Steven Cypen, the town attorney, had advised previous commissioners that it was proper to vote on appointments of their relatives to uncompensated positions on town boards. Later, he became aware of an Ethics Commission opinion stating that such appointments were improper. Out of an abundance of caution he sent a letter to the affected board members with a copy of the opinion and each such member, including Mrs. Kinzer, resigned.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Respondent Kinzer violated section 112.313(6), F.S., with regard to expenditure of $11.25 for dry cleaning, and violated section 112.3135(2)(a), F.S., as alleged in the order finding probable cause; and recommending a civil penalty of $300.00 and restitution of $11.25. DONE AND RECOMMENDED this 25th day of January, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 25th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-0313EC The following constitute specific rulings on the findings of fact proposed by the Respondent: Adopted in substance in paragraph 1. Addressed in statement of issues. Adopted in paragraph 7. Adopted in substance in paragraph 9. Adopted in paragraphs 5 & 6. Adopted in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 9. Adopted in part in paragraphs 1 and 3; otherwise rejected as irrelevant. Adopted in paragraph 14. Adopted in part in paragraph 14; the resolution creating the board provided the method of appointment, including the requirement for vote by the commission; Kinzer voted Adopted in substance in paragraph 15. Addressed in part in conclusions of law, otherwise irrelevant. [no paragraph 14] Adopted in paragraph 15. COPIES FURNISHED: Virlindia Doss, Esquire Advocate for Commission on Ethics Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Neal L. Sandberg, Esquire 1492 South Miami Avenue Miami, Florida 33130 Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue presented is whether Petitioner's application for licensure as an assisted living facility should be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered granting Petitioner's application for a license to operate an ALF, subject only to Petitioner providing the required inspection report from the Palm Beach County Public Health Unit. DONE AND ENTERED this 18th day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1997. COPIES FURNISHED: Brian M. O'Connell, Esquire Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell Post Office Box 4626 West Palm Beach, Florida 33401 Jennifer Stewart, Esquire Agency for Health Care Administration 3810 Inverrary Boulevard Lauderhill, Florida 33319 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32309
The Issue Whether Petitioner should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act (the Act), Section 57.111, Florida Statutes. Specifically, the parties dispute whether Respondent was substantially justified in bringing the Administrative Complaint against Petitioner and/or whether special circumstances exist which would make the award of attorney's fees and costs unjust.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.43 and Chapters 455, 456, and 466, Florida Statutes. At all times pertinent to this proceeding, Dr. Fish has been a dentist licensed by the State of Florida, where he has maintained a practice. At all times pertinent to this proceeding, Dr. Fish was represented by Max Price, Esquire. By letter dated April 30, 1997, Allen Horowitz, D.D.S., filed a complaint against Dr. Fish. By letter dated October 22, 1997, Laura Eggnatz Tepperberg, an Investigation Specialist II employed by the Department, notified Dr. Fish that there was a pending investigation and enclosed documents that supported the investigation. By letter dated November 20, 1997, Mr. Price notified Ms. Tepperberg that he represented Dr. Fish and requested a copy of the complete investigation file as soon as the investigation was completed. This letter also suggested that Dr. Horowitz was retaliating against Dr. Fish because Dr. Fish had served as an expert witness for the plaintiff in a civil action brought against Dr. Horowitz. On December 15, 1997, Ms. Tepperberg completed her Investigative Report. By letter dated March 9, 1998, Mr. Price acknowledged receipt of a copy of the Department's investigative file. The letter requested a copy of a videotape that was referred to by the investigative material but was not enclosed in the package of materials that had been provided. By letter dated March 10, 1998, counsel for the Department advised Mr. Price that he had overlooked the videotapes when preparing the package of material and was in the process of having a copy made for him. By letter dated April 24, 1998, the Department mailed a copy of the videotape to Mr. Price. By letter dated April 30, 1998, Mr. Price advised the Department that the videotape had been damaged in transit and requested a second copy of the videotape. By letter dated June 12, 1998, the Department mailed Mr. Price a second copy of the videotape. By letter dated June 26, 1998, Mr. Price advised the Department that the second copy of the videotape had been damaged in transit and requested a third copy of the videotape. On July 9, 1998, the Department caused a third copy of the videotape to be hand-delivered to Mr. Price. In his correspondence pertaining to the videotape, Mr. Price repeatedly asserted that he would need to review the entire investigative file, including the videotape, before he could file a response to be considered by the Probable Cause panel. By letter dated July 24, 1998, Mr. Price filed his response to the investigative file. The Department received the letter and attachments in Tallahassee on July 28, 1998. Dr. Fish's response to the investigative file disputed, but did not disprove, the evidence supporting the allegations against him. By letter dated July 28, 1998, Mr. Price filed a supplemental response to the investigative file. The Department received the supplemental response in Tallahassee on August 7, 1998. This supplemental response also disputed, but did not disprove, the evidence supporting the allegations against him. On July 31, 1998, the Probable Cause Panel met in Fort Myers and found that probable cause existed to file an administrative complaint against Dr. Fish. The Probable Cause Panel had before it at its meeting on July 31, 1998, an investigative report and supporting documentation. That packet of information substantially justified the Department's decision to initiate the Administrative Complaint that underpinned DOAH Case No. 99-3742. In its Proposed Recommended [sic] Order, the Department stipulated that Dr. Fish's response dated July 24, 1998, and his supplemental response dated July 28, 1998, were not reviewed by the Probable Cause Panel at or before its meeting of July 31, 1998. The parties stipulated that Dr. Fish was entitled to file his response within 20 days after he received the entire investigative file on July 9, 1998. Dr. Fish's response filed July 24, 1998, was timely. The parties stipulated that Dr. Fish was entitled as a matter of law to have his timely response considered by the Probable Cause Panel prior to its consideration and vote of probable cause on July 31, 1998.3 The failure to do so constituted a due process violation. On June 1, 2000, the undersigned granted the Department's Amended Motion to Relinquish Jurisdiction and closed DOAH Case No. 99-3742. Dr. Fish thereafter timely filed his petition for attorney's fees and costs4 pursuant to the Act. The parties stipulated that the proceeding below was initiated by the Department5, that Dr. Fish qualified as a prevailing small business6, and that he incurred attorney's fees and costs in excess of $15,000.00, which Section 57.111(4)(d)2, Florida Statutes, sets as the maximum that can be awarded. Consequently, if Dr. Fish is to be awarded attorney's fees and costs, the amount of the award should be $15,000.00. Section 57.111(4), Florida Statutes, mandates an award of attorney's fees and costs to a prevailing small business party as follows: (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. Section 57.111(3)(e), Florida Statutes, defines the term "substantially justified" as follows: (3)(e) A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by the state agency. The Act does not specify what acts constitute special circumstances which would make an award of attorney's fees and costs unjust within the meaning of Section 57.111(4)(a), Florida Statutes. The Department failed to establish the existence of special circumstances which would make an award of attorney's fees and costs unjust. The Department established that it had information that substantially justified the filing of the Administrative Complaint in DOAH Case No. 99-3742. Dr. Fish did not prove that the Probable Cause Panel's failure to consider his responses to the investigative file vitiated that substantial justification.
Findings Of Fact On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner. On September 10, 1984, the following occurred in Delray Beach, Florida: At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini. Respondent was very intoxicated. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers to leave him alone. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody. Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani. Respondent met with the officers about two months later and apologized for his actions. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence. On April 3, 1986, the following occurred in Deerfield Beach, Florida: At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so. Respondent was very intoxicated. As a result of his intoxication, Respondent was groggy and unable to maintain his balance. His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet, the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels, who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent. His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers. There was no evidence as to the disposition of the charges of disorderly intoxication and battery. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism. Respondent currently operates his own business as a private investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2(a). Addressed in paragraph 2(c). Addressed in paragraph 2(d). Addressed in paragraph 2(e). Addressed in paragraph 2(g). Addressed in paragraph 2(h). 9-10. Addressed in paragraph 2(i). Addressed in paragraph 3. Addressed in paragraph 12. 13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b). Rejected as being unnecessary to the results reached. Addressed in paragraph 6(c). Addressed in paragraph 6(e). 20-22. Addressed in paragraph 6(f). Addressed in paragraph 6(g). Addressed in paragraph 6(h). The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-5. Addressed in paragraphs 2(a), (b), and (c). Addressed in paragraphs 2(f) and (g). Addressed in paragraphs 2(h) and (i). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraph 4. 10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached. 13. Addressed in paragraph 3. 14-16. Addressed in paragraph 6(a). Addressed in paragraph 6(b). Addressed in paragraph 6(e). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraphs 6(g) and (h). 21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached. 25. Addressed in paragraph 5. 26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10. 28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10. 32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 37-38. Rejected as being unnecessary to the results reached. 40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 50. Addressed in paragraphs 1 and paragraph 11. 51-54. Rejected as being unnecessary to the results reached Addressed in paragraph 7. Addressed in paragraph 5. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay. Addressed in paragraph 9. Rejected as being unnecessary to the results reached. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 N.W. 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent should pay Petitioner's attorney's fees and costs, and, if so, the amount.
Findings Of Fact Mayor Osborne was the Mayor of Beverly Beach, Florida, during 1999 through 2001. Dr. Milanick was a dentist who owned property immediately north of Beverly Beach, Florida. Dr. Milanick desired that the property be annexed into the town and initiated annexation proceedings before the City of Beverly Beach. Mayor Osborne did not facilitate the requested annexation during the time he served as Mayor of Beverly Beach. Dr. Milanick alleged to the Commission that Mayor Osborne opposed the annexation for personal, financial gain. In order to defend himself against these false allegations, Mayor Osborne retained Robert J. Riggio, Esquire, of the Riggio and Mitchell firm of Daytona Beach. The Original Award of Attorney's Fees An award of attorney's fees and costs in favor of Mayor Osborne was recommended in Division of Administrative Hearings Case No. 04-4110E. The Recommended Order stated that the amount of attorney's fees and costs for Mayor Osborne to defend against Dr. Milanick's allegations was $4,976.00. The Commission did not address the amount of attorney's fees and costs in its Final Order, but instead held that Mayor Osborne was not entitled to any award. Subsequently, the Fifth District Court of Appeal found the Commission's Final Order to be erroneous and remanded the matter ". . . for entry of an order making the awards recommended by the ALJ." A Mandate with regard to the Fifth District Court of Appeal issued April 11, 2007. The award recommended by the ALJ was, as stated above, $4,976.00, and that amount should be awarded by the Commission in a Final Order. Appellate Attorney's Fees Mayor Osborne filed a Motion for Petitioner's Appellate Attorneys' Fees and Costs before the Commission on May 10, 2007, noting the Fifth District Court of Appeal, in its Order dated February 16, 2007, stated that, "Appellant's Motion For Attorney's Fees, filed May 16, 2006, is granted and the above- styled cause is hereby remanded to the Commission . . . to determine and assess reasonable attorney's fees for this appeal." The Fifth District Court of Appeal addressed only attorney's fees. However, because Mayor Osborne's Motion sought both attorney's fees and costs, and because the Commission sent that Motion without special directions to the Division of Administrative Hearings for resolution, it is found that the Administrative Law Judge has jurisdiction to recommend awards of both attorney's fees and costs expended in prosecuting the appeal. David C. Robinson, an attorney in Daytona Beach, Florida, testified as an expert on attorney's fees in Volusia County, Florida. He has practiced law in Daytona Beach for 26 years and has testified in other attorney's fees cases. He is familiar with the fees charged by attorneys in the Daytona Beach and Volusia County area. He knows Attorney Robert Riggio, of Daytona Beach, Volusia County, and Attorney Martin Pedata, of Deland, a town that is also located in Volusia County. Mr. Robinson is found to be an expert on the subject of reasonable attorney's fees and costs in Volusia County. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne as to the appellate filings made by Mr. Riggio. In doing so he considered the Lodestar approach as described in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Mr. Robinson opined that the services performed by Mr. Riggio in the appellate proceeding were provided in a manner that an attorney would be reasonably expected to provide. He reviewed the hourly rate charged by Mr. Riggio and stated that the reasonable rate should be $250.00 per hour, but that Mr. Riggio only charged $150.00 per hour. Mr. Riggio's law firm, Riggio and Mitchell, billed Mayor Osborne for 95 hours. A small portion of the work was accomplished by his partner Jerome D. Mitchell. Other work in the amount of 9.4 hours was billed for paralegal work at $40.00 per hour. The 95 hours of attorney work was billed at $150.00 per hour for a total of $14,250.00, and the paralegal work totaled $376.00. Costs amounted to $859.70. This resulted in a total of $14,626.00 for fees and $859.70 in costs. Mayor Osborne paid these charges in full. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. As a result of Mr. Riggio's efforts, Mayor Osborne prevailed in the appeal. It is found that Dr. Milanick caused Mayor Osborne to pay attorney's fees and costs in the amount of $15,485.70. Proving Entitlement to Fees and Costs Subsequent to Dr. Milanick's allegations of misconduct before the Commission, and after an investigation, the Commission, in a Public Report dated September 8, 2004, dismissed the complaint on a finding of no probable cause in the case of Mayor Osborne. Pursuant to Subsection 112.317(8), Florida Statutes, Mayor Osborne was entitled to be reimbursed for the attorney's fees and costs associated with defending himself against Dr. Milanick's allegations. Because Dr. Milanick did not voluntarily remit the fees and costs expended, a hearing was required. A hearing was held in this matter in Daytona Beach, Florida, on May 11, 2005. The hearing in Division of Administrative Hearings Case No. 04-4110FE, lasted an entire day. Prior to the hearing, Mayor Osborne engaged the services of Attorney Martin Pedata in addition to those provided by Mr. Riggio. The agreement for representation by Mr. Pedata was reduced to writing on April 6, 2005. The agreement provided that Mayor Osborne would pay Mr. Pedata $250.00 per hour for his services and $75.00 per hour for paralegal services. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne for the preparation for and the conduct of the hearing of May 11, 2005. Mr. Robinson stated that the hourly rate of $250.00 was a reasonable one for the type of services provided by Mr. Pedata. He stated that the number of hours expended by Mr. Riggio and Mr. Pedata in connection with this hearing was reasonable. In analyzing this claim he used the Lodestar approach set forth in Rowe. Mr. Riggio and his partner Mr. Mitchell, expended 160.6 hours proving entitlement to fees and costs. Mr. Pedata, as lead attorney in the entitlement case, expended 107 hours. In addition, 54.2 paralegal hours were expended in proving the entitlement case. These hours include the time up to the filing of the appeal with the Fifth District Court of Appeal. These hours also include the time spent before the Commission. As a result of the efforts of Mr. Riggio and Mr. Pedata, Mayor Osborne prevailed in the entitlement hearing, which resulted in a Recommended Order in his favor. Mayor Osborne paid Mr. Riggio and Mr. Pedata a total of $50,840.00 for their services in proving entitlement to attorney's fees. He also paid $2,168.00 for paralegal services. Total costs amounted to $3,764.73, which Mayor Osborne paid. The total fees and costs to Mayor Osborne was $56,772.73. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. It is found that Dr. Milanick was responsible for Mayor Osborne having to pay attorney's fees and costs in the amount of $56,772.73. Additional fees and costs Mr. Riggio presented Mayor Osborne with an invoice in the amount of $2,370.00 for the cost of the current proceeding. However, the Administrative Law Judge is without jurisdiction to address this claim in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics award attorney's fees and costs as follows: The original award of attorney's fees in the amount of $4,976.00. Attorney's fees and costs for appellate attorney's fees and costs in the amount of $15,485.70. Attorney's fees and costs for proving entitlement to fees and costs in the amount of $56,772.73. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2007. COPIES FURNISHED: Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Dr. Alexander J. Milanick 7250 A1A South St. Augustine Shores, Florida 32080 Phillip C. Claypool, Executive Director and General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Is Respondent guilty as charged in the Administrative Complaint of violations of Sections 943.1395(6) and/or (7) and Section 943.13(7), Florida Statutes, and/or Rule 11B- 27.0011(4)(a) Florida Administrative Code? If found to have violated any of the named statutory or rule provisions, what is the appropriate penalty?
Findings Of Fact The parties stipulated as follows: Respondent was certified by the Criminal Justice Standards and Training Commission on September 12, 1988 as a Law Enforcement Officer, and was issued certificate number 106711. At all times relevant to this matter, Respondent was certified in the above area and was employed by the Daytona Beach Public Safety Department. On January 25, 1996, Officer Christopher N. Jones issued Florida Uniform Traffic Citation No. 552339-P to Donald W. Culmer. On January 28, 1996, Respondent approached Records Clerk Laverne Irving and asked to see Citation No. 552339-P. Ms. Irving retrieved Citation No. 552339-P from a stack of citations she had just sorted. She crisscrossed the stack, marking the location for Citation No. 552339-P to be returned. Ms. Irving then handed Citation No. 552339-P to Respondent. Respondent left with Citation No. 552339-P and returned a short time later. Respondent retained personal possession of Citation No. 552339-P. Citation No. 552339-P, retained by Respondent, was a record document involved in the investigation and prosecution of Donald W. Culmer for a traffic violation. Before Ms. Irving gave Citation No. 552339-P to Respondent, she had already entered the citation number, the driver's name and address, and the charges against the driver into the computer. This computer entry makes a transmittal form for the Clerk of Court. The transmittal form, however, only lists the citation number and date. (TR 25-26, 31) Officers often make corrections on their own citations in Ms. Irving's cubicle. (TR 23) Citation No. 552339-P was not issued by Respondent, but sometimes officers ask to look at other officers' citations. It is not normal to request to remove another officer's citation, but Respondent's request was made openly. (TR 23-24) Respondent gave Ms. Irving Mr. Culmer's name, and she looked up the citation on the computer system, in order to locate the original citation for Respondent. (TR 24) Therefore, Respondent knew the contents of the original citation were already entered in the computer. Citation No. 552339-P alleged that Mr. Culmer had violated Section 316.075(3)(a), Florida Statutes, "violating a traffic control device," by running a red light, "an infraction which does not require appearance in court." (P-A) Ms. Irving asked Respondent if he wanted her to delete Citation No. 552339-P from the computer. He told her not to delete it. (TR 26-28) If she had deleted the citation information from the computer, Ms. Irving would have copied the citation itself, so that she could re-enter it in the computer when the original was returned, but under those circumstances, her current transmittal list to the Court Clerk would never have reflected Citation No. 552339-P. (TR 27) Ms. Irving let Respondent take the original citation because he told her he wanted to look at it "for corrections" and make a copy of it. (TR 25) When Respondent returned in about 30 minutes, Ms. Irving believes she watched him put a citation back in the stack. However, she concedes they both could have handled the stack. (TR 19, 28) Another thirty minutes later, Ms. Irving found Citation No. 550611-P in place of Citation No. 552339-P. The wrong citation was not Officer Jones' citation or Respondent's citation but the citation of a third officer (TR 37-38) The wrong citation was easy to spot because it was not in numerical order and did not have a check mark on it. Ms. Irving customarily put a check mark on each citation and stacked it in numerical order as she entered it in the computer. (TR 18-19) Ms. Irving also determined that the wrong citation was not even from the stack with which she had been working. This record does not explain how Respondent or anyone else would have had the third officer's citation to substitute for Mr. Culmer's citation. However, since no one else was in her cubicle at that time, Ms. Irving further concluded that Respondent had put the third officer's citation in the place of Officer Jones' Citation No. 552339-P, which had related to Mr. Culmer. (TR 18-20, 28) As standard operating procedure, once Ms. Irving processes traffic citations, they go to the Clerk of the Court for prosecution. If a citation is removed from the stack of originals, prosecution does not occur. However, when Ms. Irving's computer list reaches the Clerk, if a citation number which is on the transmittal slip is not also physically present, the Clerk would know that an original citation was missing. The system allows the Clerk or anyone to know the missing citation number and the date it was entered, but not the nature of the traffic offense charged. (TR 21, 26, 31) When paperwork is lost, Ms. Irving's standard operating procedure is to try to track it down. (TR 30-31) The substitution of a different citation number clearly would incite inquiries by the Clerk and Ms. Irving. (TR 26, 30-31) Ms. Irving had been in her position for fourteen years. (TR 22-23) Respondent had previously worked in the vicinity of her records cubicle. (TR 30) Respondent never asked Ms. Irving to delete Citation No. 552339-P from the computer so that it would not be prosecuted or tracked/located. (TR 26-28, 31) The Daytona Beach Public Safety Department has an official "voidance procedure" in place. This voidance procedure requires the citing officer's participation so as to drop the traffic charges on a citation. The usual procedure is for the citing officer to approach his supervisor with the original citation or request Ms. Irving to do so. (TR 29-30, 42-43) Respondent admitted to Daytona Beach Public Safety Department Internal Affairs Investigator Michael Citro on March 21, 1996, that Mr. Culmer's employer had asked Respondent to speak to Officer Jones, the officer who had issued Citation No. 552339-P, about dropping the charges against Mr. Culmer. Respondent admitted to having Mr. Culmer's copy of the citation and to taking the original citation from Ms. Irving's desk to show to Officer Jones when he could discuss the matter with him. Respondent denied to Investigator Citro that he had substituted a different citation. (See, Findings of Fact 8-15) However, he admitted that he had shuffled Ms. Irving's stack of original citations on January 28, 1996. Respondent admitted he never spoke to Officer Jones, although he had next worked with Jones on January 31, 1996. Respondent explained that he had put the original citation in his briefcase and forgotten about it. (TR 35-38, 45) Mr. Culmer is a college student. (TR 44) There is no evidence that Respondent ever received any monetary or other benefit from his actions with regard to Mr. Culmer's traffic citation. (TR 45) Respondent returned Citation No. 552339-P to Internal Affairs officers when they asked him for it in March 1996. At that time, he returned all three original parts, but not Mr. Culmer's copy. (TR 43-44)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order that dismisses the Administrative Complaint against Respondent. RECOMMENDED this 24th day of July, 1997, at Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997. COPIES FURNISHED: Craig S. Boda, Esquire 457 South Ridgewood Daytona Beach, Florida 32114 Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.
Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK 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 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401
