Findings Of Fact Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined: On August 16, 1991, respondent, Department of Professional Regulation (DPR), issued Request For Proposal No. 92-002 (RFP) in which it invited various firms to submit proposals for assisting DPR and the Florida Real Estate Commission (Commission) in the production and scoring of the Florida Real Estate and Appraisal Examination for the period beginning January 1, 1992, through June 30, 1993, with a renewal option of one to two years. Such proposals were to be filed no later than September 20, 1991. After all proposals were filed, the RFP called for an evaluation of such proposals by a six-person evaluation committee who would make a recommendation to the Secretary of DPR. In addition, the Commission made a non-binding recommendation to the Secretary who retained final authority to award the contract. Proposals were timely filed by three firms, including petitioner, Professional Testing Service, Inc. (PTS), Applied Measurement Professionals, Inc. (AMP), and National Assessment Institute. After an evaluation of the proposals was made, the committee recommended that the contract be awarded to AMP. By a 4-3 vote, the Commission concurred in this recommendation. Thereafter, on October 24, 1991, the Secretary selected AMP as the recipient of the contract. A protest was then filed by PTS, and after informal efforts to resolve the dispute were unsuccessful, the matter was forwarded to the Division of Administrative Hearings and was assigned Case No. 91-7429BID. An evidentiary hearing on the bid dispute was conducted on December 2, 1991. Thereafter, on January 3, 1992, a recommended order was issued recommending that AMP's proposal be found materially nonresponsive and that the contract be awarded to one of the other two vendors. It is noted that, with one minor exception, the recommended order found each of the grounds raised by PTS to be meritorious. On January 23, 1992, DPR issued a final order adopting in toto the findings of fact and conclusions of law and awarding the contract to PTS. That order was not appealed and is now final. Because it is undisputed that PTS is a corporation having its principal place of business in this state, has less than 25 full-time employees and a net worth of not more than $2 million, PTS is a prevailing small business party in Case No. 91-7429BID. Through affidavits attached to its petition, PTS has established that the requested amount of $12,049.93 in attorney's fees and costs is reasonable and accurate. Respondent does not contest the fact that petitioner incurred that amount of fees and costs in prosecuting the bid protest. Petitioner contends that there was no rational justification for DPR making an award of the contract to AMP since AMP's bid was clearly nonresponsive on its face and DPR had ample opportunity to ascertain those defects prior to the award of the contract. Findings of fact 27 through 30 in the recommended order issued in Case No. 91-7429BID and adopted by DPR in its Final Order establish that AMP's proposal filed on September 20, 1991, deviated in several material respects from the RFP. These included a failure by AMP to differentiate between costs incurred for candidates examined and candidates who were scheduled to take the examination but did not appear, the use of nine cost components to develop the cost per candidate scheduled instead of the eight components specified in the RFP, the proposed use of DPR personnel rather than its own personnel to provide unofficial grade reports to candidates at the examination site, and a failure to agree to establish an office in the greater Orlando area. All of these deficiencies were present in AMP's original proposal filed on September 20, 1991, and were known by both the evaluation committee and the DPR Secretary prior to the award of the contract. Indeed, this was confirmed by testimony adduced at the evidentiary hearing. In addition, there was an evidentiary showing that DPR allowed AMP to amend and clarify its proposal after all proposals had been filed and declined to enforce material requirements in the RFP. The lack of a reasonable basis in law or fact to justify the preliminary award of the contract to AMP was further corroborated by the statements contained in the affidavit of Charles E. Barner, Jr. Therefore, it is found that the agency was not substantially justified in initially awarding the contract for RFP-91-002 to AMP and that there were no special circumstances present which justified the agency's actions. There is no evidence to support a finding that the parties intended for Subsection 287.042(2)(c), Florida Statutes (1991) to apply to this proceeding. Indeed, it was not shown that petitioner was required to post a bond with DPR at the time it filed its formal written protest to the award of the contract, and the agency's final order did not contain a provision reimbursing PTS for "fees and charges excluding attorney's fees" incurred in prosecuting Case No. 91- 7429BID.
The Issue The issues in this case are whether Petitioner is entitled to an award of attorney's fees and/or costs, pursuant to section 120.595(4); and, if so, the amounts of attorney's fees and/or costs to which he is entitled.
Findings Of Fact On March 3, 2017, DOAH entered an Amended Final Order in Case No. 16-6127RU, determining that a portion of the Florida Department of Highway Safety and Motor Vehicles Procedure Manual TL-10, dated April 30, 2014, and Technical Advisory RS/TL 14-18, dated October 20, 2014 (hereafter, the "Unadopted Rules"), are unadopted rules that violate section 120.54(1)(a). "Stephen J. Williams, as a Trustee for the Sparkhill Trust," is Petitioner in this proceeding, and also was Petitioner in Case No. 16-6127RU. Petitioner appeared in Case No. 16-6127RU as a trustee of the Sparkhill Trust ("Trust"), which holds title to the motor vehicle for which a certificate of title was denied by Respondent and its agent, the Lee County Tax Collector, in 2014. As previously found in Case No. 16-6127RU, Petitioner also is the beneficiary of the Trust. Petitioner is not licensed to practice law in Florida, and has neither alleged nor shown that he was licensed or otherwise authorized to practice law in Florida at any point during the pendency of Case No. 16-6127RU.2/ Petitioner received a law degree from the University of Connecticut School of Law and is licensed to practice law in Connecticut, New York, and the District of Columbia; however, he currently is suspended from practicing law in those jurisdictions. Petitioner also is a lawyer on the Roll of Solicitors in England and Wales, but is not currently authorized to practice in those jurisdictions because he does not hold a practicing certificate. Petitioner asserts in the Motion that he is an attorney acting in a representative capacity as a trustee on behalf of the Trust. Petitioner filed a document titled "Declaration of Stephen J. Williams in Support of Petitioner's Motion for Attorney's Fees and Costs" ("Declaration") in support of the Motion. Although the Declaration represents that it is made "under penalty of perjury," it does not constitute a legally sufficient oath or affidavit because it does not comply with the requirements of section 92.50(1), Florida Statutes. Specifically, it does not contain a jurat or certificate of proof or acknowledgement authenticated by the signature and official seal of a judge, clerk or deputy clerk of court of record in this state, or a United States commissioner or notary public in this state, as required by the statute.3/ Petitioner attached an itemized timesheet to the Declaration. The timesheet lists, for each item for which attorney's fees are sought, the date and description of the legal services alleged to have been rendered for the particular item, and the amount of time alleged to have been spent per item. The timesheet represents that a total of 54.8 hours were spent in prosecuting Case No. 16-6127RU. Petitioner asserts that he is entitled to a $350.00 per hour attorney's fee, multiplied by a 1.5 loadstar multiplier, and a contingency multiplier of three, for a total of $86,310.00 in attorney's fees. Attached to the Declaration is email correspondence sent to Petitioner by Kiara Guzzo, Respondent's Public Records Coordinator, stating that Petitioner owed $119.73 for Respondent's response to Petitioner's public records request. In the Declaration, Petitioner states that "[t]he attached email of Guzzo email [sic] accurately indicates the out-of-pocket expenses which have been paid." Pursuant to his statement in the Declaration, Petitioner is "exclusively engaged in the practice of law." Pursuant to his statement in the Declaration, Petitioner undertook the prosecution of Case No. 16-6127RU on a contingency basis, with his attorney's fees being "limited to that approved by this tribunal."4/ Petitioner previously challenged the Unadopted Rules in two DOAH proceedings, Case Nos. 14-6005RU and 15-0484RU.5/ Thus, as far back as 2014, Respondent was on notice that its statements (i.e., the Unadopted Rules) may constitute unadopted rules.
Findings Of Fact An ethics complaint was filed against Petitoner, Eli Tourgeman (Tourgeman) alleging that Tourgeman, as Mayor of the Town of Surfside, violated Chapter 112, Florida Statutes. Respondent, the Florida Commission on Ethics (Commission), found probable cause to believe that Tourgeman did violate Section 112.313(6), Florida Statutes. A formal hearing was held by the Division of Administrative Hearings. Tourgeman hired Richard Waserstein to represent him in the administrative proceedings. The Commission issued a Final Order and Public Report on July 20, 1994, Complaint No. 91-73 and Final Order No. COE 94-28, finding that Tourgeman did not violate Section 112.313(6), Florida Statutes, and dismissing the complaint. Tourgeman filed a Petition for Award of Costs and Attorneys Fees. In the petition, he alleged that he was on the Town of Surfside City Commission for six years and during the last four years he served as Vice Mayor and Mayor of the Town of Surfside. He also alleged that he is a banker employed by Glendale Federal as a Branch Manager and Vice President. Mr. Waserstein spent 52.75 hours in representing Tourgeman in the case at a rate of $150 per hour. The total cost for legal services was $7,912.50. The costs incurred by Tourgeman was $1,934, which included costs for depositions, transcripts, and travel to attend the Commission meeting in Tallahassee.
The Issue Whether the corporate name of the parties are confusing and, if so, whether Respondent's name reservation should he revoked.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On June 13, 1980, Respondent, Florida Department of State, issued charter number 673400 permitting the use of the corporate name Boca Financial Planning Center, Inc. to the Petitioner in reliance on Chapter 607, Florida Statutes. On September 15, 1982, Respondent, Florida Department of State, issued charter number G00060 permitting the use of the corporate name Boca Financial Planners, Inc. to the Respondent in reliance on Chapter 607, Florida Statutes. Petitioner commenced its operation during 1980 and engages in a wide range of financial and tax planning and assets management. To garner business, Petitioner has advertised in the Yellow Pages of the local telephone directory and has sponsored a series of financial planning seminars during 1982 as a means to develop new business. Petitioner did not receive notice from the local telephone company that its Yellow Page ad for the year 1984 was up for renewal and, therefore, did not renew same. Petitioner blame a drop in its business on the fact that it was not notified of its Yellow Page ad renewal by the phone company and claimed that other factors confirmed its position that the two names herein are creating confusion and a marked decline in its business. To further support its conclusion that the names involved are confusing and should not be permitted, Petitioner relates that it has received mail destined for respondent's business on approximately two occasions and has received telephone calls intended for Respondent's company. Respondent, Boca Financial Planners, Inc., is also in the business of financial planning; however, the bulk of its business in financial planning comes from the managing of assets of family as legal clients as opposed to seeking financial planning business from the general public. Respondent's president and owner, Bruce Winter, is an attorney and a certified financial planner. He is also licensed to sell stocks, bonds and other investment vehicles in addition to being a real estate broker. Respondent first became involved in the financial planning business during May of 1983. Respondent does not conduct any financial planning seminars nor does he seek any financial planning business other than the "somewhat- smaller circle of friends and family that he presently serves in the financial planning business." (Testimony of Bruce Winter) Respondent placed an ad in the Yellow Pages of the Boca Raton telephone directory after opening his financial planning office during 1983. Unlike Petitioner, Respondent has not received any mail or telephone calls destined for Petitioner. Respondent attributes his ability to attract financial planning business from his success as a legal practitioner and estimates that less than ten percent of his financial planning business comes from the ad in the Yellow Pages or from the general public.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent, Florida Department of State, Division of Corporations, enter a Final Order finding that the corporate name Boca Financial Planning Center, Inc. is not deceptively similar to or confusing with the name Boca Financial Planners, Inc. Consequently, it is further recommended that the relief requested by Petitioner be DENIED and the Petition DISMISSED. RECOMMENDED this 14th day of November, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1984.
The Issue Whether Respondent discriminated against Polly Leggitt on the basis of her handicap, violating Sections 760.23(1), (2) and (7)(a), Florida Statutes (1992). If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Section 760.35(3)(b), Florida Statutes. Whether Florida Commission on Human Relations’ failure to conclude its investigation within one year requires dismissal of the complaint/charge; and Whether Florida Commission on Human Relations’ delay has prejudiced the Respondent and whether the complaint should be dismissed on the basis of violation of the statute of limitations or laches.
Findings Of Fact Petitioner is charged with the administration of the Florida Civil Rights Act of 1992, as amended, Section 760.30, Florida Statutes (1995). If Petitioner is unable to obtain voluntary compliance with sections 760.20-760.37, Florida Statutes, or has reasonable cause to believe a discriminatory housing practice has occurred, Petitioner may institute an administrative proceeding under Chapter 120, Florida Statutes on behalf of the aggrieved party. On February 3, 1993, Leggitt filed a complaint with the Petitioner, and the United States Department of Housing and Urban Development. The complaint names Carole Naylor, Property Administrator, as the person who discriminated against her. On March 24, 1993, the Petitioner notified Regency Place Apartments and Carole Naylor that the complaint had been filed, and stated that within 100 days the Petitioner would investigate the complaint and give notice whether there was or was not reasonable cause to believe that a discriminatory housing practice had occurred. The Notice further provided that a final administrative disposition of the complaint would be completed within one year (on or about February 3, 1994). A Notice of Determination: Cause and Issuance of an Administrative Charge was made and issued by document dated and served on August 28, 1996. It named Regency Place Apartments; Carole Naylor, Property Administrator; Frank Cutrona, Property Manager; and Robert Stitzel, Owner. The notice was issued more than one year after the filing of the complaint. Respondent was the developer and owner of Regency Place Apartments in Melbourne, Florida, at all times relevant. Respondent hired Frank Cutrona as manager of Regency Place Apartments and was the manager during the relevant period. Respondent hired Carole Naylor as a clerical worker and gave her the title of Property Administrator. On September 9, 1992, Regency Place Apartments located in Melbourne, Florida, responded to a letter of inquiry from Polly Leggitt, and offered certain apartments for rent. The letter of September 9, 1992, was signed by Frank Cutrona and his wife (resident managers) offered a $100.00 discount, and invited Leggitt to visit the complex. At that time, Leggitt was a resident of Richardson Apartments located in Fort Myers, Florida. Leggitt indicated that she wanted to leave that area and move to Brevard County, Florida. On or about October 11 or 12, 1992, Leggitt visited the apartment complex and was shown an upstairs one-bedroom apartment, by a woman who she did not identify. Leggitt did not advise the woman that she had a disability, and Leggitt did not have a seeing-eye dog with her at that time. Leggitt found that the price and location of the apartments were suitable to her needs. Leggitt wanted to move to Regency Place because the apartments were accessible to all that was important to her. She used a guide dog at the time to help her with traffic. There was a veterinary clinic nearby; a light to cross the street; a bus stop so that she could get the mall; and a bank and grocery store directly across the street. Leggitt did not contact the apartment complex again until after Christmas of 1992, at which time she called and spoke to a person she believed was Frank Cutrona, the apartment manager. Leggitt was sent an application which she filled out and returned sometime after January 8, 1993. On the application she noted in the place where it requested information about automobiles, “None- (legally blind - no license)”. The application form requested information regarding pet ownership and indicated that there would be a separate application for pets. She wrote in the application that she had a guide dog, and that federal and state laws prohibited discrimination by charging a fee for guide dogs. The application stated that she was self-employed and obtained $281.34 per month in Social Security disability income. In the application, she stated “Mom pays rental and ut’s” (presumably utilities). The proposed monthly rental for a one-bedroom apartment was $380 per month, plus utilities. Leggitt sent a deposit and application fee on or about January 11, 1993. No specific amount of contribution towards Leggitt’s income was shown for her mother on the application. By letter dated January 18, 1993, Leggitt’s application was declined, citing the unavailability of the kind and location of the apartment which she desired and insufficient income to qualify. The letter was signed by Carole Naylor, “Property Administrator.” The original cashiers check for the deposit was also returned. Subsequent conversations took place between Leggitt and Frank Cutrona regarding her ability to pay and whether or not her mother’s income could be considered for credit requirements. Leggitt asked him to speak to her mother. Leggitt stated that she did not submit any information regarding her mother being a co-signer. Polly testified “[t]hey told me they would send her an application.” Christine Puchalski testified that she knew Leggitt as a resident of the apartment complex where she was a resident manager. In response to an inquiry by an unknown person calling on behalf of Regency Place Apartments, Puchalski stated that she did not go into any details other than that Leggitt paid her rent on time, that she did not have any returned checks, and there were no problems with Leggitt’s tenancy. By letter of January 28, 1993, Leggitt was advised that her application was not approved, stating that “We require the tenant/occupant to have sufficient income to qualify. Your mother living out of state, and not occupying the apartment would preclude her income from being part of the calculation.” This letter was signed by Carole Naylor, Property Administrator. Leggitt acknowledged that her application was not very specific as to income and that there were times that her mother paid rent directly to the apartment complex and sometimes she sent the sum directly to her. Following the rejection of her application, Leggitt moved to Titusville, Florida, to an apartment that was not accessible for her handicap. This apartment was on a very dangerous road, with no reliable public transportation and three miles to the grocery store. She had to buy a bicycle and risk her life on the dangerous road leading to the apartment, to buy groceries. She lived there eight-and-a-half months before moving to Merritt Island, Florida. Regency Apartments, containing 219 units, was built by Robert Stitzel in 1983 and owned by him until it was sold on April 30, 1993, to a third party corporation. The contract to sell the property had been executed in December, 1992. Frank Cutrona had worked for Stitzel between 4 and 6 years. He died on December 26, 1996. Carole Naylor did not work in the rental office. She made no judgments regarding the rental of the apartment, nor the creditworthiness of the prospective tenants. Her title “Property Administrator” appears to be a title only. Her duties were administrative, typing, and bookkeeping. She composed and typed the two letters that were sent to Leggitt, but the contents of the letters were given to her by Cutrona. She had no conversations with Polly Leggitt or Frances Leggitt. Robert Stitzel made no judgments regarding the tenants. Regency Apartments would require income equaling three times the gross rental. The creditworthiness and the determination of who would rent apartments was left solely with the resident manager. The proposed rent for a one-bedroom apartment was $380. Therefore, three times that amount equals $1,140.00. Respondent demonstrated that many disabled people had lived in the apartment complex. There was a person who was legally blind. There were amputees and physically challenged people of many different disabilities over the years. Accommodations were made for people with disabilities by Cutrona and such costs for these accommodations were paid by Regency. It does not appear that Regency Apartments is a legal entity. The owner of the apartment complex at the time of the alleged discrimination was Regency Place, Ltd., a Florida limited partnership, which no longer owns the apartment complex. Frank Cutrona is deceased, and his estate has not been made party to this proceeding. Cutrona has been described as a caring, disabled man who was kind and considerate of his tenants with disabilities and made innovative accommodations for their benefit. The specific reasons or motivations for the rejection of the application by Cutrona cannot be clarified because of his death in December, 1996. Respondent was aware that the complex could not discriminate on the basis of race, color, sex or disabilities. The Petitioner has made a prima facie case of discrimination in that Leggitt is a handicapped person, who is otherwise qualified to rent the apartment, and she suffered a loss of a housing opportunity, under circumstances which lead to an inference that Respondent based its action solely upon her handicap. Respondent presented evidence that Regency’s requirement of gross income equaling three times the monthly rent had not been satisfied by Leggitt’s mother’s agreement to contribute $550 per month. Leggitt’s income of $281.34, plus her mother’s contribution, would come to $831.34 per month. Three times the monthly rent was $1,140, thus rendering their income short by $308.66 per month. The motivation for rejecting the application is recited in those letters which stated that the apartment which Leggitt wanted was not available, and Leggitt did not have sufficient income to qualify. There is no evidence of a discriminatory motive on the part of Cutrona, Naylor, Stitzel, or Regency Apartments, other than conjecture. There is no evidence that suggests the reasons given were not true at the time the letters were written or that they were merely pretextual. Further, it does not appear from the evidence that any discriminatory motive has been proven. There is nothing in the evidence that proves that Leggitt’s legal blindness was a cause of the rejection of her application. There is no evidence of any act or conduct which would suggest discriminatory conduct or a discriminatory animus by any of the persons named as Respondents. Taken as a whole, the credible evidence indicates that the sole basis for rejecting her application was the unavailability of the unit that she requested, and her failure to satisfy management of her financial ability to meet the financial requirements of Regency Apartments. Although Leggitt testified as to her inconvenience caused by the denial of her application, there is no evidence of any quantifiable damages.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order denying the relief sought and dismissing the petition filed in this matter. RECOMMENDED this 7th day of July, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 7th day of July, 1997. COPIES FURNISHED: Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Evelyn Davis Golden, Esquire Assistant General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Ms. Polly Leggitt 505 Landings Way, Apartment Number 12 Merritt Island, Florida 32952 Mike Krasny, Esquire Krasny & Dettmer Post Office Box 428 Melbourne, Florida 32902-0428
Findings Of Fact A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. We adopt the Administrative Law Judge’s findings of fact. FCHR Order No. 05-093 Page 2 Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We note that the Administrative Law Judge concluded, “Mr. Dill, on a single occasion, behaved in a prejudiced, rude and verbally abusive manner to Petitioner. Although he was named in the Petition for Relief, no valid address was provided for him. He has had no notice of this proceeding, and therefore, jurisdiction over him by the Division has not been acquired. To rule with regard to his rights at this time would be a denial of due process...the undersigned is not satisfied that, as a mere employee of the other Respondents, Mr. Dill could bear any liability to Petitioner under the facts of this case...” Recommended Order, {| 29. We note that the Commission has concluded that individuals can bear liability under the Fair Housing Act. See, Thorhill v. Admiral Farragut Condominium Association, et al., FCHR Order No. 01-018 (March 15, 2001); see, also, Sections 760.22(8) and 760.34(1), Florida Statutes (2005). Further, we note that in a case involving findings of the utterance of racially repugnant remarks, a Commission panel has stated, “We note the Hearing Officer’s finding that, ‘The racially repugnant comments of the Respondent, in the absence of any acts infringing on the tenants’ free use of the leasehold, are not a violation of Section 760.23, Florida Statutes.’... We hereby clarify that this finding does not mean that racially-repugnant comments can never amount to a violation of the Fair Housing Act.” Fletcher v. Hatfield, 18 F.A.L.R. 1590, at 1591 (FCHR 1995). Nevertheless, given the Administrative Law Judge’s finding that Mr. Dill had no notice of the proceeding, and the finding that “[bly firing Mr. Dill, Oak Pointe and Flournoy took steps to prevent further bad acts or bad words by him against Petitioner and others (Recommended Order, § 28),” and in the absence of a transcript of the proceeding before the Administrative Law Judge, we adopt the Administrative Law Judge’s conclusions of law, with these clarifying comments. Exceptions Neither party filed exceptions to the Administrative Law Judge’s Recommended Order. Dismissal The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right FCHR Order No. 05-093 Page 3 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this _9"__ day of September , 2005. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Mario M. Valle, Panel Chairperson; Commissioner Dominique B. Saliba, M.D.; and Commissioner Billy Whitefox Stall Filed this_ 9" day of September 2005, in Tallahassee, Florida. Vit braferd Violet Crawford, Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-7082 Copies furnished to: Karla Maxwell Post Office Box 438 Monticello, FL 32345 Oakpointe Apartments and Flournoy Properties c/o Jack R. Lee Vice President, Flournoy Properties 2673 Mountain Brook Road Canton, GA 30114 Ella Jane P. Davis, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel 1 21S wom ernest FCHR Order No. 05-093 Page 4 THEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this gt day of September , 2005. By: Vite Cumefrsl Clerk of the Commission Florida Commission on Human Relations
The Issue The issue to be determined is whether Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from a prior consolidated action before ALJ F. Scott Boyd, DOAH Case Nos. 16-3298 and 16-3302, pursuant to section 185.05, Florida Statutes. Before the final hearing, the parties stipulated to an amount of reasonable prevailing party attorney’s fees and costs if the undersigned determines that Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from that prior action before ALJ Boyd.
Findings Of Fact The City of Coral Springs is a municipality in Broward County, Florida. It exercises broad power pursuant to article VIII, section 2 of the Florida Constitution, and the Municipal Home Rule Powers Act, chapter 166, Florida Statutes. The City Commission of the City of Coral Springs (“Commission”) may create other offices, boards, or commissions to administer the affairs of the city and may grant them powers and duties. The Commission has adopted the Coral Springs Police Officers’ Pension Plan (“the Plan”), which is amended from time to time by ordinance and is set forth in sections 13-5 through 13-17 of the Code of Ordinances of the City of Coral Springs. The Plan is administered by the City of Coral Springs Police Officers’ Pension Fund Board of Trustees (“Board”), the powers of which are set forth in sections 13-13 through 13-15 of the Code of Ordinances of the City of Coral Springs. The Plan is a local-law defined pension plan created pursuant to chapter 185. In February 2016, the Board adopted a policy to allow for the suspension of pension benefits of members who were charged with crimes specified at section 112.3173, Florida Statutes, and whose benefit payments had equaled or exceeded their contributions to the Plan. The Williamses are retired police officers whose pension benefits had fully vested at the time of the enactment of the aforementioned suspension policy. In February 2016, the Board sought to suspend Petitioners’ benefits under the newly-adopted policy because Petitioners had been charged with crimes specified in section 112.3173 and the benefit payments made to them had exceeded their contributions to the plan. Petitioners requested a formal hearing to challenge the authority of the Board to adopt the suspension policy. Petitioners’ benefits were never suspended at any time during the pendency of this suspension matter. The Board contracted with DOAH to conduct the formal hearing under the authority of section 120.65(6), Florida Statutes. DOAH assigned ALJ Boyd to the prior consolidated action, who issued pre-hearing instructions requiring a statement of all issues. The issue of attorney’s fees was not included by the parties. ALJ Boyd conducted the formal hearing on September 30, 2016, and October 10, 2016. On November 18, 2016, ALJ Boyd issued a Recommended Order finding that the Board did not have the authority to adopt the policy nor apply it to Petitioners. The Recommended Order made no mention of awarding attorney’s fees or costs. Nether Petitioners nor the Board filed exceptions to the Recommended Order. Petitioners raised the issue of fees in a letter to the Board dated December 2, 2016. Counsel for Petitioners appeared at a hearing held before the Board in December 2016 and sought fees as set forth in the December 2, 2016, letter. The Board adopted ALJ Boyd’s Recommended Order in toto on January 3, 2017. The Board also denied Petitioners’ request for a hearing regarding an award of attorney’s fees. On January 13, 2017, Petitioners sought an award of attorney’s fees by filing with DOAH a Verified Motion for Prevailing Party Attorney’s Fees and Costs. On March 1, 2017, ALJ Boyd entered an Order dismissing Petitioners’ motion for fees, stating he lacked jurisdiction to hear the issue of fees. That Order was not appealed. Prior to the final hearing in this matter, Petitioners successfully petitioned the Seventeenth Judicial Circuit Court to compel the Board to grant them a hearing on entitlement to the fees and to quash the Order denying fees for violation of due process. Petitioners then successfully defended an appeal of that Order by the Board to the Fourth District Court of Appeal and a motion for rehearing thereon. Petitioners are not seeking fees for these extraordinary writ actions as these efforts do not fall under chapters 185 or 120. The parties stipulated that “the Williamses prevailed in challenging the Board’s authority to create a policy suspending the benefits.” The Board never applied its proposed suspension policy to Petitioners. Petitioners continue to receive their benefits to this day. Criminal charges against Petitioners remained pending at the time of the hearing in this matter. Petitioners are only seeking entitlement here to an attorney’s fee and costs award for their successful challenge of the suspension policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioners’ request for prevailing party attorney’s fees and costs. DONE AND ENTERED this 19th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2021. Brandon J. Hechtman, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Boulevard, Suite 800 Coral Gables, Florida 33134 Pedro Herrera, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Bonni Spatara Jensen, Esquire Klausner, Kaufman, Jensen & Levinson 7080 Northwest 4th Street Plantation, Florida 33317 Kenneth R. Harrison, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Gina Orlando, Administrator City of Coral Springs Police Officers’ Pension Fund 9551 West Sample Road Coral Springs, Florida 33065
