Findings Of Fact Petitioner is James Newberry Jr., who was also the Petitioner in the underlying challenge to Emergency Rule 64B14ER98-1 of Respondent Florida Board of Orthotists and Prosthetists, designated as DOAH Case No. 98-1186RE. The underlying case was brought pursuant to Section 120.56(5), Florida Statutes, pertaining to "Challenging Emergency Rules; Special Provisions." Mr. Newberry prevailed therein. The instant costs and fees case has been brought, in the alternative, pursuant to Sections 120.595(3) and 57.041, Florida Statutes. These are the only statutes relied upon in the Petition. In oral argument, Petitioner's counsel acknowledged that no case law exists to support an award of fees and/or costs under Section 57.041, Florida Statutes. The Petition does not contain an allegation that Petitioner incurred the attorney's fees set out in the attached affidavit of Ryan Garrett. The Petition does not attach any contract for attorney's fees. Petitioner's counsel acknowledged orally that no contract for fees existed and that the statements of the attorneys representing Petitioner addressed to "The Board of Orthotists Certification" in Baltimore, Maryland were addressed in that way because of an agreement between that private corporate entity and Petitioner Newberry, who is one of its members. By that agreement, apparently not reduced to writing, the Maryland corporation agreed to provide Petitioner with an attorney and pay the attorney's fees and further advanced all Petitioner's costs. "The Board of Orthotists Certification," also known as "The Board for Orthotics and Prosthetics Certification," of Baltimore, Maryland was not a party to the underlying emergency rule challenge. No evidence of its standing, if any, to challenge the emergency rule nor even of its involvement with Mr. Newberry for fee purposes was presented in DOAH Case No. 98- 1186RE.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
The Issue The issue is whether Petitioners' Motions for Attorney's Fees should be granted, and if so, in what amount.
Findings Of Fact Based upon the stipulation of counsel, the papers filed herein, and the underlying record made a part of this proceeding, the following findings of fact are determined: Background In this attorney's fees dispute, Petitioners, Anderson Columbia Company, Inc. (Anderson Columbia) (Case No. 00-0754F), Panhandle Land & Timber Company, Inc. (Panhandle Land) (Case No. 00-0755F), Support Terminals Operating Partnership, L.P. (Support Terminals) (Case No. 00-0756F), Commodores Point Terminal Corporation (Commodores Point) (Case No. 00-0757F), and Olan B. Ward, Sr., Martha P. Ward, Anthony Taranto, Antoinette Taranto, J.V. Gander Distributors, Inc., J.V. Gander, Jr., and Three Rivers Properties, Inc. (the Ward group) (Case No. 00-0828F), have requested the award of attorney's fees and costs incurred in successfully challenging proposed Rule 18-21.019(1), Florida Administrative Code, a rule administered by Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board). In general terms, the proposed rule essentially authorized the Board, through the use of a qualified disclaimer, to reclaim sovereign submerged lands which had previously been conveyed to the upland owners by virtue of their having filled in, bulkheaded, or permanently improved the submerged lands. The underlying actions were assigned Case Nos. 98- 1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, and an evidentiary hearing on the rule challenge was held on May 21, 1998. That proceeding culminated in the issuance of a Final Order in Support Terminals Operating Partnership, L.P. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 21 F.A.L.R. 3844 (Div. Admin. Hrngs., Aug. 8, 1998), which determined that, except for one challenged provision, the proposed rule was valid. Thereafter, in the case of Anderson Columbia Company, Inc. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 748 So. 2d 1061 (Fla. 1st DCA 1999), the court reversed the order below and determined that the rule was an invalid exercise of delegated legislative authority. Petitioners then filed their motions. Fees and Costs There are eleven Petitioners seeking reimbursement of fees and costs. In its motion, Anderson Columbia seeks reimbursement of attorney's fees "up to the $15,000 cap allowed by statute" while Panhandle Land seeks identical relief. In their similarly worded motions, Support Terminals and Commodores Point each seek fees "up to the $15,000 cap allowed by statute." Finally, the Ward group collectively seeks $9,117.00 in attorney's fees and $139.77 in costs. In the Joint Stipulations of Fact filed by the parties, the Board has agreed that the rate and hours for all Petitioners "were reasonable." As to all Petitioners except the Ward group, the Board has further agreed that each of their costs to challenge the rule exceeded $15,000.00. It has also agreed that even though they were not contained in the motions, requests for costs by Support Terminals, Commodores Point, Anderson Columbia, and Panhandle Land in the amounts of $1,143.22, $1,143.22, $1,933.07, and $1,933.07, respectively, were "reasonable." Finally, the Board has agreed that the request for costs by the Ward group in the amount of $139.77 is "reasonable." Despite the stipulation, and in the event it does not prevail on the merits of these cases, the Board contends that the four claimants in Case Nos. 00-754F, 00-755F, 00-0756F, and 00- 757F should be reimbursed only on a per case basis, and not per client, or $7,500.00 apiece, on the theory that they were sharing counsel, and the discrepancy between the amount of fees requested by the Ward group (made up of seven Petitioners) and the higher fees requested by the other Petitioners "is difficult to understand and justify." If this theory is accepted, it would mean that Support Terminals and Commodores Point would share a single $15,000.00 fee, while Anderson Columbia and Panhandle Land would do the same. Support Terminals and Commodores Point were unrelated clients who happened to choose the same counsel; they were not a "shared venture." Each brought a different perspective to the case since Commodores Point had already received a disclaimer with no reversionary interest while Support Terminals received one with a reversionary interest on June 26, 1997. The latter event ultimately precipitated this matter and led to the proposed rulemaking. Likewise, in the case of Anderson Columbia and Panhandle Land, one was a landowner while the other was a tenant, and they also happened to choose the same attorney to represent them. For the sake of convenience and economy, the underlying cases were consolidated and the matters joined for hearing. Substantial Justification From a factual basis, the Board contends several factors should be taken into account in determining whether it was substantially justified in proposing the challenged rule. First, the Board points out that its members are mainly lay persons, and they relied in good faith on the legal advice of the Board's staff and remarks made by the Attorney General during the course of the meeting at which the Board issued a disclaimer to Support Terminals. Therefore, the Board argues that it should be insulated from liability since it was relying on the advice of counsel. If this were true, though, an agency that relied on legal advice could never be held responsible for a decision which lacked substantial justification. The Board also relies upon the fact that it has a constitutional duty to protect the sovereign lands held in the public trust for the use and benefit of the public. Because lands may be disclaimed under the Butler Act only if they fully meet the requirements of the grant, and these questions involve complex policy considerations, the Board argues that the complexity and difficulty of this task militate against an award of fees. While its mission is indisputably important, however, the Board is no different than other state agencies who likewise are charged with the protection of the health, safety, and welfare of the citizens. The Board further relies on the fact that the rule was never intended to affect title to Petitioners' lands, and all Petitioners had legal recourse to file a suit to quiet title in circuit court. As the appellate court noted, however, the effect of the rule was direct and immediate, and through the issuance of a disclaimer with the objectionable language, it created a reversionary interest in the State and made private lands subject to public use. During the final hearing in the underlying proceedings, the then Director of State Lands vigorously supported the proposed rule as being in the best interests of the State and consistent with the "inalienable" Public Trust. However, he was unaware of any Florida court decision which supported the Board's views, and he could cite no specific statutory guidance for the Board's actions. The Director also acknowledged that the statutory authority for the rule (Section 253.129, Florida Statutes) simply directed the Board to issue disclaimers, and it made no mention of the right of the Board to reclaim submerged lands through the issuance of a qualified disclaimer. In short, while the Board could articulate a theory for its rule, it had very little, if any, basis in Florida statutory or common law or judicial precedent to support that theory. Although Board counsel has ably argued that the law on the Butler Act was archaic, confusing, and conflicting in many respects, the rule challenge case ultimately turned on a single issue, that is, whether the Riparian Rights Act of 1856 and the Butler Act of 1921 granted to upland or riparian owners fee simple title to the adjacent submerged lands which were filled in, bulkheaded, or permanently improved. In other words, the ultimate issue was whether the Board's position was "inconsistent with the . . . the concept of fee simple title." Anderson Columbia at 1066. On this issue, the court held that the State could not through rulemaking "seek to reserve ownership interests by issuing less than an unqualified or unconditional disclaimer to riparian lands which meet the statutory requirements." Id. at 1067. Thus, with no supporting case law or precedent to support its view on that point, there was little room for confusion or doubt on the part of the Board. E. Special Circumstances In terms of special circumstances that would make an award of fees unjust, the Board first contends that the proposed rule was never intended to "harm anyone," and that none of Petitioners were actually harmed. But the substantial interests of each Petitioner were clearly affected by the proposed rules, and the appellate court concluded that the rule would result in an unconstitutional forfeiture of property. The Board also contends that because it must make proprietary decisions affecting the public trust, it should be given wide latitude in rulemaking. It further points out that the Board must engage in the difficult task of balancing the interests of the public with private rights, and that when it infringes on the private rights of others, as it did here, it should not be penalized for erring on the side of the public. As previously noted, however, all state agencies have worthy governmental responsibilities, but this in itself does not insulate an agency from sanctions. As an additional special circumstance, the Board points out that many of the provisions within the proposed rule were not challenged and were therefore valid. In this case, several subsections were admittedly unchallenged, but the offending provisions which form the crux of the rule were invalidated. Finally, the Board reasons that any moneys paid in fees and costs will diminish the amount of money to be spent on public lands. It is unlikely, however, that any state agency has funds set aside for the payment of attorney's fees and costs under Section 120.595(2), Florida Statutes (1999).
The Issue The issue is to determine the amount of the fee to be awarded to Florida Medical Center. FEE CALCULATION Florida Medical Center was represented before the Department in its attempt to obtain a hearing and before the District Court of Appeal, First District in Florida Medical Center vs. Department of Health and Rehabilitative Services and Humana, Inc., appellate case no. BD-46, by Eric B. Tilton, who has been a member of The Florida Bar since 1977. He also handled the appeal of the denial of Florida Medical Center's petition for a hearing on the approval of additional beds for University, appellate case BD-45. An associate, Thomas W. Stahl, assisted Mr. Tilton in both those cases. Mr. Tilton filed, on behalf of Florida Medical Center, the following pleadings: a petition seeking a Section 120.57 hearing to challenge the certificate of need HRS agreed to grant to Humana Bennett. The petition was denied in a final order of the Department without referral to the Division of Administrative Hearings for the assignment of a hearing officer or other proceedings; a notice of appeal to the District Court of Appeal, First District; a consolidated initial brief for both cases BD-46 (challenging the Humana Bennett certificate of need) and BD-45 (challenging the University certificate ofneed); a consolidated reply brief in both cases. The following papers also were filed by Mr. Tilton in case 50-46: motion for expedited review; petition for stay; reply to response to petition for stay; request for oral argument; motion to consolidate; response to motion to transfer to Fourth District Court of Appeal; response to notion to supplement record; response to motion for judicial notice; motion to strike portion brief of HRS; motion to strike answer brief of Humana Bennett; motion to strike amended answer brief of University; response to motion to correct record; response to Humana's motion to consolidate; motion for attorney's fees; motion for rehearing; response to Humana Bennett's motion for rehearing. The record on appeal before the Court of Appeals in Case BD-46 was quite brief, consisting of a petition for a hearing, a final order denying a hearing and a notice of appeal, which total 16 pages. The criteria found in Chapter 4 of the Rules Regulating The Florida Bar, Rule 4-1.5(B)(1)-(8) and (C) govern the determination of a reasonable fee. These are the criteria which had been contained in the former Code of Professional Responsibility, and applied by the Supreme Court of Florida in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 and n.6 (Fla. 1985) when the Court adopted the lodestar approach for fee determinations developed by the federal courts. Time and Labor Required, Novelty and Difficulty of Questions and Skill Requisite to Perform Legal Service Properly. Rule 4-1.5(B)(1) Mr. Tilton and his associate, Mr. Stahl, devoted 219.15 and 142.3 hours to this litigation, respectively. These hours were included in billings sent to the client, which were paid as presented without protest. The first step in determining a reasonable fee is to find the number of hours reasonably expended on the litigation. Rowe, supra, 472 So.2d 1150. The United States Supreme Court held in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), when assessing attorney's fees in civil rights litigation under identical ethical principles that [t]he most useful starting point for deter- mining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of value of a lawyer's services. 461 U.S. at 433, 103 S.Ct. at 1939. The Department of Health and Rehabilitative Services has not argued that any of the hours claimed were not reasonably expended on the litigation, in the sense of being the product of inaccurate or questionably reconstructed time records. The records were contemporaneously kept. Neither is there evidence of over staffing e.g., that more than one attorney attended or participated in oral argument without proof that such multiple representation was necessary. The appeal was not simply one in which the appellant argued that, as a competitor, it was entitled to a hearing as a matter of law. After initially indicating an intention to deny additional beds to both applicants, a hearing had been conducted which resulted in a Hearing Officer's recommendation that both 1931 applications be denied and the Department had entered a final order to that effect. Florida Medical Center's attorneys canvassed the entire record of the administrative proceeding on the 1981 applications of Humana Bennett and University to see whether there was any basis in it for the Department's abrupt change of position. Granting Humana Bennett and University new beds to settle the appeals in the Fourth District Court of Appeal was a fundamental shift in Department policy. The time spent in reviewing that record while preparing Florida Medical Center's appellate filings was appropriate. The time devoted to research on Florida, federal and other states' law on the authority of an agency to abandon a position taken after the conclusion of formal proceedings in order to settle an appeal from the agency's final action, while also refusing to allow others to challenge the agency's new and directly contrary position, was reasonable. Of course, "[a] lawyer in private practice ethically is obligated to exclude [excessive, redundant, or otherwise unnecessary] hours from his fee submission . . . . Hours that are not properly billed to one's client also are not properly billed to one's adversary . . . Nestle v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1940, quoting, Copeland v. Marshall 205 U.S.App.D.C. 390, 401, 641 F.2d 880, 891 (1980) (en banc) (emphasis by the Court). There has been no suggestion that the bills submitted to Florida Medical Center were not the product of a proper exercise of billing judgment. Payment of the bills as presented also betokens the reasonableness of the hours claimed. Complaint or objection by the client to the hours billed would suggest that the hours expended may have been excessive. The evidence that Mr. Tilton expended 219.15 hours and Mr. Stahl 142.3 hours on the case is accepted. The Fee Customarily Charged iii the Locality for Similar Legal Services. Rule 4-1.5(B)(3). Much of the case law concerning a reasonable hourly rate has grown up in civil rights litigation where determining a reasonable hourly rate requires after-the-fact construction. When the services were rendered in those cases, the lawyer was not working for the client at an agreed hourly rate. A survey of hourly rates paid by clients seeking legal services on an hourly basis becomes a proxy for reasonable hourly compensation for the fee claimant's lawyer. Blum v. Stenson, 465 U.S. 886, 895 & n.11, 104 S.Ct. 1541, 1547 & n.11, 79 L.Ed.2d 891 (1984). Here, in an arms-length transaction, Florida Medical Center paid Mr. Tilton $150 per hour and Mr. Stahl $100 per hour. The $100 hourly rate for Mr. Stahl may be at the upper end of the market for attorneys admitted to the bar in 1982, but he had experience in health care law as a law clerk before admission to the bar which should be considered. These hourly rates are paid by other clients to these lawyers. Free market transactions are powerful evidence of what a reasonable hourly rate is. For lawyers of the experience of Mr. Tilton and Mr. Stahl, the rates claimed are reasonable. No persuasive evidence has been presented that these rates are exorbitant, or are out of line with a prevailing market rate for other private counsel of comparable experience, skill and reputation. Based on these calculations the lodestar amount is: HOURS HOURLY RATE Tilton 219.15 x $150.00 = $32,872.50 Stahl 142.3 x $100.00 = $14,230.00 $47,102.50 TOTAL FEE Results Obtained. Rule 4-1.5(B)(4). The Department of Health and Rehabilitative Services objects to paying for all hours billed. A major issue raised by Florida Medical Center in its appellate brief was that after having entered a final order denying Humana Bennett's 1981 application for additional beds (the subject of the appeal in the Fourth District Court of Appeal), the Department could not recede from or modify that order as part of a settlement. This argument was rejected by the First District Court of Appeal, and the Department believes the lodestar amount should be reduced to recognize Florida Medical Center's limited appellate success. The short answer to this objection is that the District Court of Appeal certainly knew this, but did not specifically condition the attorney's fee award on some segregation of the amount of work devoted to different issues on the appeal. The Court did condition its order granting attorney's fees upon proof that Florida Medical Center had not waived its point of entry; it also could have limited the fee award to the standing issue on which Florida Medical Center prevailed, but it did not. Florida Medical Center met the only condition the Court imposed and is entitled to fees for all services rendered by its attorneys. If the issue whether fees should be reduced for incomplete appellate success is open, it would be inappropriate to reduce the number of compensable hours here. The erroneous decision of the Department denying a hearing caused Florida Medical Center to incur appellate fees. The issue of the authority of an agency to recede from a final order in a settlement was one of first impression in Florida law. Although unsuccessful, the argument advanced in the appellate court was reasonable. To be made whole, Florida Medical Center should be reimbursed for hours attributable to that issue. If a party brings unrelated claims which carry attorney's fees to federal court and fails to prevail on all claims, fees are not granted for the unsuccessful claims. The focus, however, is on whether the partially successful party pursued "distinctly different claims for relief that are based on different facts and legal theories". Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. 1940. Here, the relief sought was reversal of the order denying Florida Medical Center the right to participate in the Department's decision to grant additional beds to Humana Bennett. That same relief was available on either theory proposed by Florida Medical Center: that its status as a competitor of Humana Bennett conferred standing as a matter of law under Section 381.494(6)(c), Florida Statutes, or that HRS was not entitled to rescind through settlement a final order denying Humana Bennett additional beds after denial had been recommended by a Hearing Officer following a Chapter 120 formal proceeding in which the applicant, competitors and the Department had been heard, and HRS had adopted that order as its final agency action. Florida Medical Center did not advance distinctly different claims for relief based on different facts and legal theories; it presented a single claim for relief based on alternate theories. Cf., Taylor v. Sterrett, 640 F.2d 663, 669 (5th Cir. 1981) ("[T]he proper focus is whether the plaintiff has been successful on the central issue as exhibited by the fact that he has acquired the primary relief sought.") As the Supreme Court said in Hensley, "The result is what matters." id., 461 U.S. at 435, 1030 S.Ct. at 1940. As the result of its appeal Florida Medical Center has participated in a lengthy Section 120.57 formal proceeding on remand which has permitted it to oppose the addition of 53 beds to a competitor. The potential competitive impact on Florida Medical Center of the opening of those new beds is sufficiently serious to make the hours reasonably expended a satisfactory basis for the fee award. That the record on appeal was brief, and the consolidated initial and reply briefs succinct (totaling 23 pages) does not mean the hours expended on the appeal are not properly compensable. Other Factors None of the other factors in Rule 4-1.5(B) would vary the lodestar amount. "When . . . the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled." Pennsylvania v. Deleware Valley Citizens Council, U.S. , 106 S.Ct. 3088, 3398 (1986) quoting, Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984) (emphasis by the Court). The fee is not contingent, and no special time limitations were imposed by the client or the circumstances, Rule 4-1.5(B)(8), (5). The nature and length of the professional relationship with the client is not significant here since that factor is encompassed in the determination of the hourly rate to which Florida Medical Center and its attorneys agreed, as is the factor on experience, reputation and ability of the lawyer performing the services. Rule 4-1.5(B)(6), (7). Equal Access to Justice Act The argument of the Department of Health and Rehabilitative Services that the $15,000 cap on fees which may be awarded under the Equal Access to Justice Act, Section 57.111, Florida Statutes, should be applied to this case is rejected. The fees the District Court of Appeal ordered HRS to pay were not awarded pursuant to that Act. That cap is permissible because an award of fees is in derogation of the American rule that a party shall bear its own fees. See, e.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Having statutorily created the entitlement to fees, the legislature may also cap those fees. The record shows that Florida Medical Center's motion to the Court which prompted this fee award was one based on Section 120.57(1)(b)(9), Florida Statutes (1985), which authorizes the courts to award "reasonable attorney's fees and costs" without any cap. The purpose of the award is to make Florida Medical Center whole for the fees and costs incurred as the result of Departmental action which was a gross abuse of agency discretion." Section 120.57(1)(b)(9), Florida Statutes (1985). The fee will not go to Florida Medical Center's attorneys--they have already been paid. As the statute prescribes, the court has awarded the fee to "the prevailing party." It is no defense to an award under the statute that the hourly rate assessed is more than the agency pays to counsel it hires. The argument advanced by the expert witness for the Department that the focus should not be on the amount the private client was willing to pay, but on what the public will approve is not accepted. The statutory standard is that the fee shall be reasonable, and the provisions of the Rules Regulating The Florida Bar identify factors for applying the test of reasonableness. Public antipathy to awards made to private parties with public funds to redress grossly abusive agency conduct lacks legal significance. Costs Florida Medical Center is entitled to recover the $50.00 filing fee for Case No. BD-46, the cost of the record on appeal of $4.00, and $63.74 for printing of the reply brief. The total allowable costs are $117.74.
Recommendation Based on the foregoing, it is RECOMMENDED that fees in the amount of $47,102.50 be awarded with costs of $117.74. DONE AND ORDERED this 7th day of April 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 7th day of April 1987. COPIES FURNISHED: Eric B. Tilton, Esquire Post Office Drawer 550 Tallahassee, Florida 32302 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Raymond E. Rhodes, Clerk District Court of Appeal First District State of Florida Tallahassee, Florida 32399-1850
The Issue The issue for determination in this cause is whether petitioner is entitled to a refund in the amount of $6,306.32 paid into the state treasury as sales tax. More specifically, the issue is whether the registration or participation fee charged by petitioner to its members at the 1975 summer national bridge tournament is taxable as an "admission" under Florida Statutes 212.02(16) and 212.04.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, the American Contract Bridge League, Inc., is a nonprofit corporation incorporated under the laws of New York in 1938. Its membership is approximately 200,000, representing areas all over the North American continent. Its purposes include educational, cultural and charitable pursuits. Among other things, petitioner annually sponsors three national tournaments in various areas of the United States. In August of 1975, petitioner held its summer national tournament at the Americana Hotel in Bal Harbour, Dade County, Florida. Over 1,000 tables for approximately 5,500 members were in operation for the nine-day event. Many of these 5,500 members played in two or more events. In order to participate in each event, the member was required to pay a registration fee ranging from $3.00 to $4.50. No sales tax was included by petitioner in its registration fee. While spectators at the tournament were permitted, it was not intended as a spectator event. No special provision was made for the seating of spectators, whose number rarely exceeded one hundred and who were composed primarily of relatives or friends of the actual players or participants. No admission charges were made to spectators. On previous occasions, petitioner has held bridge events in Florida. On no such occasion has the State of Florida attempted to assess the sales tax on petitioner's registration or participation fees. No other state in which petitioner has held its tournaments has assessed petitioner for sales or other taxes on this fee. The respondent Department of Revenue informed petitioner that the registration fees collected at the 1975 summer national tournament constituted a taxable event, subject to the Florida sales tax, and petitioner, under protest, forwarded a check in the amount of $6,306.32. Thereafter, petitioner applied for a refund pursuant to the provisions of F.S. 215.26. The Comptroller denied the refund application.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for a refund in the amount of $6,306.32 be denied. Respectfully submitted and entered this 21st day of March, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1977. COPIES FURNISHED: Comptroller Gerald Lewis The Capitol Tallahassee, Florida 32304 Patricia Turner, Esquire Assistant Attorney General Department of Legal Affairs The Bloxham Building Tallahassee, Florida 32304 Paul J. Levine, Esquire 2100 First Federal Building One Southeast 3rd Avenue Miami, Florida 33131
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 The amount of attorneys fees and costs, if any, that should be awarded Petitioners pursuant to the Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al., finding Petitioners entitled to attorneys fees and costs pursuant to the provisions of Section 120.595, Florida Statutes (Supp. 1996) and retaining jurisdiction to determine the "reasonable amounts" of such fees and costs
Findings Of Fact By Joint Prehearing Stipulation and without waiving objections to applicability of Section 120.595, Florida Statutes, the Agency For Health Care Administration (AHCA), has stipulated with all parties as to the "reasonable amounts" of requested fees and costs to be awarded Petitioners in the event that such an award is determined to be applicable. All parties have also stipulated to the lack of liability of Intervenor Citizens of the State of Florida for payment of any award of fees and costs in this proceeding. That stipulation in its entirety is incorporated by this reference within these findings of fact and attached to this Final Order as Exhibit "A." The amendments to Chapter 120, Florida Statutes, were adopted as part of a major rewrite of the APA. See, Chapter 96-159, Laws of Florida. The amendments were effective October 1, 1996, and were effective prior to the hearing related to the rule challenge cases. All parties requesting attorneys’ fees and costs rely upon Section 120.595(4), Florida Statutes (Supp. 1996) as authority for an award of fees. Provisions of Section 120.595(4), Florida Statutes (Supp. 1996), are applicable to the facts of this case. See, Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al.
The Issue The factual issue to be determined is the amount of attorney fees and costs due and owing to the Petitioner.
Findings Of Fact The Petitioner incurred the following costs related to the proceedings in Case No. 87-0605: Copying Charges for Office Copies of Pleadings and Papers $173.25 Court Reporter Fees for Transcript of Evidentiary Hearing held 9/9/90 510.30 Miscellaneous Postage 26.75 Copying Charges 9.80 Typing Charges 100.00 TOTAL COSTS: $820.10 The parties stipulated that a reasonable hourly rate for Mr. Traynham's services was $150.00 per hour. At the time of the final hearing in Case No. 90- 5301F, Mr. Traynham had expended 25 hours in Case No. 90-5301F. A reasonable fee for counsel for Petitioner's services in the aforementioned case is $3,750.00. The parties also stipulated that work in presentation of this case to the Commission must be considered separately. The parties did not agree to an hourly rate or number of hours for the services provided by Mr. Stafman. Based upon the records presented and the testimony of Mr. Stafman, the reasonable number of hours required to review the file and for testimony at the hearing is seven hours. The reasonable rate for Mr. Stafman's professional services based upon the value of his services in relationship to the value of the services provided by Mr. Traynham is $150.00 per hour. A reasonable total fee for Mr. Stafman's professional services was $1,050.00. Curley Doltie, Esq. was retained by the Petitioner to represent him in this proceeding on a contingency fee basis. A contingency fee basis means that Mr. Doltie would be compensated for representing the Petitioner only if the Petitioner prevailed in the litigation. The amount of the contingency fee was to be determined and awarded by the Commission. The rule regulating the Bar requires contingency fee contracts to be reduced to writing. The Petitioner was a casual client of Mr. Doltie, and their contingency fee contract was not reduced to writing and executed. Mr. Doltie is a 1979 graduate of the Law School at Florida State University and was admitted to the Bar in that year. Between May 1980 and May 1982, Mr. Doltie served as an armored officer in the United States Army. Mr. Doltie's legal experience includes working as a staff attorney for the Legal Aid Society of Orange County from October 1979 until May 1980; assistant public defender in Sanford, Florida, from May 1982 until April 1983; private practice from April 1983 until October 1984; associate general counsel with the Public Service Commission from October 1984 until January 1987; Legal Services of North Florida from January 1987 until opening a private practice in Tallahassee in September 1987. The Petitioner was one of Mr. Doltie's first clients after he opened his private practice in 1987. Mr. Doltie currently handles both contingency fee cases and cases for which he regularly bills his clients. Mr. Doltie's current billing rate is $150.00 per hour. Mr. Doltie's practice involves, primarily, administrative litigation. Mr. Doltie regularly keeps time records, which reflect the activities in which he is engaged on behalf of his client, and the time expended in pursuit of these activities. Mr. Doltie maintained time records for the activities which he performed in providing professional services to the Petitioner. In addition, Mr. Doltie expended 4.5 hours preparing for the attorney fee hearing, 1.0 hour for a prehearing conference, and 8.0 hours testifying or being available to testify at the final hearing on the matter of attorneys fees and costs. The total number of hours expended by Mr. Doltie in the fee case was 13.5 hours. Mr. Doltie's summary of professional services rendered by date, description, and time expended on the administrative proceedings before the Commission, the Division of Administrative Hearings, and the appeal of the original case to the District Court of Appeals and the Florida Supreme Court is presented in the Petitioner's Exhibit 2. Mr. Doltie withdrew his claim for the appeal. Mr. Doltie recorded his time carefully and conservatively and claimed only that time which contributed significantly to the work product. The Respondent would reduce the time allowed for the services rendered on the following dates because the explanation is insufficient or the amount of time is excessive or the activity was unnecessary: 1/5/88 C/Weaver 3/23/88 C/Weaver 5/11/88 C/Weaver; R/Case 6/7/88 C/Weaver 9/27/88 L/Carothers 4/17/90 R/Case; P/Motion for Evidentiary Hearing 4/17/90 L/Carothers 5/1/90 P/Motion To Strike Respondent's Motion To Tax Costs; R/Case; C/Weaver 5/4/90 P/Petitioner's Reply To Respondent's Response To Petitioner's Motion For Evidentiary Hearing 5/23/90 R/Case 5/24/90 R/Case; P/Notice Of Failure To Settle; Motion For Rehearing And Motion For Clarification; Memorandum of Law; Motion To Strike 6/13/90 P/Petitioner's Motion Requesting FCHR To Become A Deferral Agency For The Federal Government; R/Case; P/Motion For Seniority Pay Steps; P/Motion Requesting An Expedited Hearing On Damages 6/14/90 R/Case; P/Motion Requesting FCHR To Appeal DCA Order 6/22/90 RV/FCHR Order; C/Weaver Based upon review of the time records and consideration of the services performed, the following adjustments are made with regard to the times recorded by Mr. Doltie: 1/5/88 C/Weaver .5 2/23/88 C/Weaver .2 6/3/88 1/ R/Case; RV/DOAH Order 1.2 6/7/88 C/Weaver 1.0 The total number of hours accepted from Mr. Doltie for his services rendered before the Division of Administrative Hearings and the Commission is 121.9 hours through the initiation of the appeal to the District Court of Appeals. The total number of hours of professional services rendered provided by Mr. Doltie after this case was returned to the Commission is also itemized in the Petitioner's Exhibit 2, commencing with the services provided on 4/17/90. Of those items to which the Respondent takes exception, only the services provided on 6/13/90 and 6/14/90 were adjusted. In both instances, it was determined that the motions were unnecessary, without precedent, and the time expended thereon should be disallowed. The total number of hours of professional services rendered from 4/17/90 through 8/16/90 were 32.2 hours. The total number of hours expended by Mr. Doltie and allowed to be charged after review is 154.1 hours. Based upon a consideration of Mr. Doltie's background and experience, in comparison with the fees for professional services charged by other attorneys in the Tallahassee, a reasonable rate for his services at the time would have been $110.00 per hour. Having originally heard the case presented by Mr. Doltie and being familiar with the litigation, Mr. Doltie's professional services undoubtedly resulted in the Petitioner vindicating his civil rights and the Respondent being directed to employ the Petitioner. Although the Petitioner's initial claim was for broader relief, the Petitioner did not present evidence on many of these issues and thereby abandoned them at hearing. Based upon the results achieved, a contingency fee of one-half again the billed rate would have been reasonable; however, as stated above, the contingency fee agreement between the Petitioner and Mr. Doltie was not reduced to writing. Recovery on a contingency fee in the absence of a written contract would be precluded by the Rules Regulating the Bar. Therefore, the recovery in this matter is on a quantum meruit basis. The value of the job and benefits of employment to the Petitioner were equal to the actual dollar value of the allowable hours times $110.00 per hour for 154.1 hours and $150.00 per hour for 13.5 hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petitioner be awarded the following attorney's fees and costs: Costs: $ 820.10 Mr. Stafman: 1,050.00 Mr. Doltie: 18,976.00 Mr. Traynham: 3,750.00 Further, Mr. Traynham should receive an added fee for his presentation before the Commission to be determined by the Commission in its Final Order. DONE AND ENTERED this 21st day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 21st day of February, 1991.
The Issue The issue presented is whether Petitioners are entitled to an award of attorney's fees and costs pursuant to the Florida Equal Access to Justice Act.
Findings Of Fact The underlying proceeding, DOAH Case No. 94-3605, involved Petitioners' challenge to notices of final assessments for fuel taxes. The assessments had been issued by the Department against Nana's Petroleum, Inc.; Emilio Perez d/b/a Nana's Stations; Emilio Perez as Vice President of Nana's Petroleum, Inc.; Edilia Perez as Secretary of Nana's Petroleum, Inc.; Sun Petroleum, Inc.; and Emilio Perez as President and Manager of Sun Petroleum, Inc. At the commencement of the final hearing, Sun Petroleum, Inc., and Emilio Perez as President and Manager of Sun Petroleum, Inc., withdrew their challenge to the assessments against them, and those assessments became final. Five assessments thereafter remained for determination in the underlying proceeding: one against Edilia Perez as secretary of Nana's; one against Emilio Perez as vice president of Nana's; one against Emilio Perez d/b/a Nana's Stations; and two against Nana's Petroleum, Inc. In the Recommended Order and in the Final Order entered in the underlying proceeding, only a portion of one of the assessments against Nana's Petroleum, Inc., was upheld. The Department was substantially justified in issuing its assessments against Petitioners and in initiating this proceeding. Further, an award of attorney's fees and costs for the underlying proceeding would be unjust.
