Findings Of Fact Petitioner and Respondent agree that Respondent is entitled to attorney's fees and costs incurred for the period extending from the filing of the Respondent's notice of appeal to the filing of his appellate brief. The appropriate amount involved is: $3,232.50 - for attorney's fees 431.60 - for costs $3,664.10 - TOTAL Petitioner and Respondent agree that Respondent is entitled to attorney's fees and costs incurred for the period extending from the filing of the appellate brief to the end of appeal. The appropriate amount involved is: $1,950.00 - for attorney's fees 333.94 - for costs $2,283.94 - TOTAL The total amount to which Respondent is entitled for attorney's fees and costs relating to his appeal of the agency's Final Order is $5,948.04. Respondent's counsel at the administrative hearing, Steven D. Kastner, on April 15, 1984; submitted a statement in which he itemized 57.75 hours of service to Respondent on his case from initial consultation on September 2, 1983 through a post-hearing memorandum of law submitted on April 3, 1984. The statement reflects an hourly rate of $75.00 which, when multi-plied by the number of hours expended- results in a basic amount due of $4,331.25. However, Respondent had already paid $2,400.00 which would result in a net due of $1,931.25 were it not for a letter of equal date from Mr. Kastner which acknowledges the negotiated fee rate of $60.00. Consequently, the real net amount due is $1,065.00 and this figured added to the $2,400.00 already paid in, result in a total fee to hearing and memo of $3,465.00. Petitioner does not challenge the $60.00 hourly rate charged by Mr. Kastner. However, the limited information contained in Mr. Kastner's statement, makes it impossible to determine the legitimacy of the hourly breakdown. Even Mr. Lambert recognized this difficulty and admits the likelihood that it may be insufficient evidence to support the claim filed. Furthers Mr. Lambert's motion for attorney's fees, filed on January 7, 1985; referred only to the fees and costs incurred for the work accomplished prior to the filing of the appellate brief. The supplement filed on January 28, 1986, after the entry of the Court's October 11, 1985 Order, also referred to appellate fees and costs and for the first time, referred to Kastner's fees and costs. It is to the inclusion of Kastner's fees and costs that Petitioner objects. A review of the materials submitted to the undersigned fails to reveal any indication that the action of Petitioner; Department of Insurance and Treasurer was a gross abuse of the agency's discretion. No such abuse was found either by the hearing officer at the original hearing or by the Court on appellate review.
Findings Of Fact Little Havana Activities Center, Inc. was incorporated in 1973 as a non-profit corporation. It has occupied its present address of 819 S. W. 12th Avenue, Miami, Florida, since 1974. Annual corporate reports were filed through the year 1975 by Petitioner; however, the annual report for 1976 was not filed. Petitioner's activities are predominantly the providing of meals and services to citizens over 60. They are the only Spanish language oriented such agency in Dade County and they receive most of their funds from federal and State agencies with the United Way and private charities contributing less than fifty percent of their funds. Petitioner occupies eight sites in Dade County through which it services some 1200 people per day. These services include delivery of hot meals, the providing of transportation services, recreation facilities, and job opportunities. Up to 275 people are employed by Petitioner. Respondent maintains all corporate records on a computer. When the annual corporate report is received from a corporation, the new data contained thereon is inserted into the computer and can be readily retrieved. On or about 1 January of each year a first notice of annual report is computer typed and mailed to all corporations. The Division of Corporations does not keep a record of this mailout. On or about 1 September a second notice is computer printed and mailed to those corporations failing to meet the July 1 annual report deadline. Again no record is maintained of this mailout. Finally, on or about 1 December the computer researches the computer banks and all corporations which have not filed annual reports for that year are sent a Certificate of Dissolutionment, and the Department of State, Division of Corporations, is sent a computer printout of the companies, and their respective addresses, which the computer has dissolved. This computer printout is put on a microfiche card for future references.
The Issue Pursuant to the order of the First District Court of Appeal dated October 18, 2005, the issue before the Division of Administrative Hearings is a determination of the amount of attorneys' fees and costs to be awarded for the administrative proceeding in Department of Health v. Anthony Glenn Rogers, M.D., DOAH Case No. 02-0080PL, and for the appellate proceeding styled Anthony Glenn Rogers, M.D. v. Department of Health, Case No. 1D04-1153 (Fla. 1st DCA Oct. 18, 2005).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine, and the Board of Medicine ("Board") within the Department is the entity responsible for entering final orders imposing disciplinary action for violations of the laws regulating the practice of medicine. See §§ 455.225 and 458.331(2), Fla. Stat. On January 4, 2002, the Department of Health filed an Administrative Complaint charging Dr. Rogers with violations of Section 458.331(1)(m), (q), and (t), Florida Statutes (1998).3 The matter was referred to the Division of Administrative Hearings, which assigned the matter DOAH Case No. 02-0080PL. The case was heard on May 7, 2002, by Administrative Law Judge Michael J. Parrish. Judge Parrish entered his Recommended Order on February 21, 2003, in which he found that the Department had failed to prove violations of Section 458.331(1)(q) and (t), Florida Statutes (1998), and recommended dismissal of those charges. Judge Parrish found that the Department had proven a violation of Section 458.331(1)(m), Florida Statutes (1998), failing to keep medical records as required by rule, and he recommended that Dr. Rogers be required to pay a $1,000.00 administrative fine and attend a Florida Medical Association record-keeping course as the penalty for the violation. The Board entered its Final Order on February 17, 2004, in which it adopted its own findings of fact and conclusions of law; found Dr. Rogers guilty of all three charges in the Administrative Complaint; and imposed a penalty on Dr. Rogers consisting of a $10,000 administrative fine, completing of a drug course sponsored by the University of South Florida, completion of a Florida Medical Association record-keeping course, and two years' probation, during which he was not permitted to practice medicine unless his practice was monitored quarterly by a physician approved by the Board. Dr. Rogers appealed the Board's Final Order to the First District Court of Appeal, challenging the Board's determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998). Dr. Rogers filed a motion for attorneys' fees and costs based on Section 120.595(5), Florida Statutes. In addition, Dr. Rogers filed a Motion for Stay of Final Order, which the Board opposed. The district court denied the motion for stay in an order entered April 2, 2004, and Dr. Rogers proceeded to comply with the terms of the two-year probationary period imposed by the Board, as well as fulfilling the other requirements set forth in the Board's Final Order of February 17, 2004. In an opinion issued on October 18, 2005, the First District Court of Appeal reversed the Board's Final Order with respect to its determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998), and remanded the matter to the Board for entry of a Final Order consistent with its opinion. The district court held in its opinion that the Board had erroneously re-weighed the evidence and had rejected findings of fact in the administrative law judge's Recommended Order that were supported by competent substantial evidence. The district court also entered on October 18, 2005, the order granting Dr. Rogers's motion for attorneys' fees and costs that is the subject of this proceeding. The district court's mandate issued on February 23, 2006, and, on April 21, 2006, the Board entered a Final Order on Remand adopting the findings of fact and conclusions of law in Judge Parrish's Recommended Order, finding that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), and imposing a $1,000.00 administrative fine on Dr. Rogers and requiring him to attend a medical record-keeping course. Based on the Amended Affidavit of C. William Berger filed August 24, 2006, the total number of hours Mr. Berger spent in representing Dr. Rogers in the administrative proceeding in DOAH Case No. 02-0080PL is 79.75, a total that the Department does not challenge. Mr. Berger's billing rate was $300.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid to Mr. Berger for his representation of Dr. Rogers through the administrative proceedings before the Division of Administrative Hearings was, therefore, $23,925.00. Dr. Rogers was ultimately found to have violated one count of the three-count Administrative Complaint filed against him by the Department, the count in which the Department alleged that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), by failing to keep adequate medical records related to the patient that was the subject of the charges against him. Mr. Berger did not record in his billing statements the amount of time he spent researching this charge, preparing for hearing on this charge, or addressing this charge in the Proposed Recommended Order he filed in 02-0080PL. It is reasonable that Mr. Berger spent 10 percent of the hours included in his billing statements preparing Dr. Rogers's defense to the charge that he failed to keep adequate medical records.4 Accordingly, Mr. Berger's attorney's fees will be reduced by 10 percent, or by $2,392.50, for a total of $21,532.50. In reaching the percentage by which Mr. Berger's fees should be reduced, consideration has been given to the amount of the fees in relationship to the failure to prevail on the medical-records violation, to the seriousness of the alleged violations on which Dr. Rogers prevailed before both the administrative law judge and on appeal,5 and the penalty ranges that the Board could impose for the violations with which Dr. Rogers was charged.6 Based on the Supplemental Affidavit of Lisa Shearer Nelson Regarding Attorneys' Fees and Costs filed September 5, 2006, Ms. Nelson claimed that she spent a total of 187.1 hours "from the issuance of the final order of the Board of Medicine through the appeal and remand and initial preparation of the petition for attorney's fees and costs." Ms. Nelson's billing statements reflect that she represented Dr. Rogers during the appellate proceedings before the First District Court of Appeal in Case No. 1D04-1153 and before the Board on remand from the district court. Ms. Nelson's billing rate was $250.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid by Dr. Rogers to Ms. Nelson for her representation was, therefore, $46,775.00. A review of the billing statements attached to Ms. Nelson's supplemental affidavit reveals that the final billing statement, dated June 9, 2006, was for "preparation of petition for fees and costs; preparation of affidavit re same." Dr. Rogers was billed for 1.9 hours in this billing statement, for a total of $475.00. Because the work done by Ms. Nelson reflected in this billing statement did not involve the appellate proceeding arising out of the Board's Final Order of February 17, 2004, the hours claimed by Ms. Nelson are reduced by 1.9 hours, for a total of 185.2 hours. Accordingly, Ms. Nelson's attorney's fees for her representation of Dr. Rogers on appeal total $46,300.00. The total costs identified in Mr. Berger's Amended Affidavit and in the billing statements attached to the Amended Affidavit is $4,462.55. This amount is reduced by $1,000.00 attributable to a retainer paid to a Dr. Spanos, who was initially retained as an expert witness but who ultimately did not testify on Dr. Rogers's behalf. The total allowable costs for the administrative proceeding, therefore, are $3,462.55. The total costs identified by Ms. Nelson in her Supplemental Affidavit and in the billing statements attached to the Supplemental Affidavit is $1,005.01. The total costs for both the administrative and the appellate proceedings are, therefore, $4,467.56. Dr. Rogers submitted an affidavit in which he claimed that he expended total costs of $154,807.23 in fulfilling the terms of the penalty assessed against him in the Board's Final Order of February 17, 2004, which was reversed by the district court.
Conclusions For Petitioner: C. William Berger, Esquire One Boca Place, Suite 337W 2255 Glades Road Boca Raton, Florida 33486 For Respondent: John E. Terrel, Esquire Michael D. Milnes, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue 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.
Conclusions For Claimant: Daniel Harwin, Esquire Freedland, Harwin, Valori, P.L. Suite 2300 110 Southeast 6th Street Fort Lauderdale, Florida 33301 For Respondent: S. William Fuller, Jr., Esquire Hall Booth Smith, P.C. Suite 400 200 West Forsyth Street Jacksonville, Florida 32202
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
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.
The Issue The issue to be determined is whether Petitioner, Department of Environmental Protection (DEP), is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad (Spinrads), and their counsel, related to litigation between the parties in DOAH Case No. 13-2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
The Issue The amount of attorneys' fees and costs to be awarded to Jerry Ann Winters (Petitioner) based on the Order of the Second District Court of Appeals dated November 8, 2002, and pursuant to Subsection 120.595(5), Florida Statutes (2003).
Findings Of Fact The Petitioner retained attorneys Mark F. Kelly and Robert F. McKee to represent her in an administrative proceeding challenging the proposed termination of her employment by USF and in the appeals that followed the issuance of the Final Orders by USF. Petitioner's Exhibit 1 is an invoice dated December 18, 2002, submitted to the Petitioner by her legal counsel. The invoice contains charges billed to the Petitioner for the period between January 17, 2001, and November 22, 2002. The invoice indicates a total of 339.75 hours expended on her behalf. The invoice contains duplicated entries for November 14, 2002. Discounting the duplication reduces the total hours expended to 339.50. The practice of the Petitioner's counsel is to bill in quarter-hour increments and to round up. According to the invoice, the Petitioner was billed at a rate of $275 per hour. Mark F. Kelly graduated from Vanderbilt Law School in 1976. Since then he has practiced labor and employment law in Florida before state and federal agencies and has a substantial appellate practice. He was previously awarded fees in the range of $250 approximately four years ago. Robert F. McKee graduated from Stetson University College of Law in 1979. He received a Master of Laws degree in Labor and Employment Law from Georgetown University Law Center in 1981. Since then he has practiced labor and employment law in Tampa, Florida. He was previously awarded fees in the range of $250 approximately four years ago. At the hearing, the Petitioner presented the testimony of Steven Greg Wenzel. Mr. Wenzel has practiced law in Florida for more than 30 years and is board-certified in Labor and Employment Law. He has extensive trial experience. He has previously provided expert testimony related to the reasonableness of attorneys' fees in approximately 12 cases. Mr. Wenzel is familiar with the fees charged by attorneys representing employees in employment-related cases in central Florida. Mr. Wenzel's testimony related to the experience, reputation, and ability of Petitioner's attorneys. It also indicated that they have substantial experience in the area of labor and employment law and are well-regarded by their peers. No credible evidence to the contrary was presented during the hearing. Mr. Wenzel's testimony adequately addressed the applicable factors set forth in Rule 4-1.5(b)1 of the Florida Bar's Rules of Professional Conduct to be considered in determining the reasonableness of fees. Mr. Wenzel opined that based on their knowledge and experience, the type and complexity of the case, and the aggressive nature of the litigation; a reasonable hourly rate was $290 ranging to $310. Mr. Wenzel's testimony in this regard is credited. The invoiced rate of $275 per hour is reasonable. Mr. Wenzel also opined that the quarter-hour billing practice was reasonable and, in fact, conservative related to other practices with which he was aware. Mr. Wenzel's testimony in this regard is credited. At the same time that the Petitioner was challenging the proposed employment termination, a civil case involving the Petitioner, a number of the basketball players, and USF was proceeding. In that case, different legal counsel represented the Petitioner. Review of Petitioner's Exhibit 1 indicates that the invoice includes charges related to persons and activities involved in the civil case. Neither Mr. Kelly nor Mr. McKee had any official involvement in the civil case. Mr. Kelly participated apparently unofficially in mediation efforts to resolve the pending disputes. The invoice contains daily total charges for billed activity. On some days, activity was recorded for both the administrative case and the civil case. Charges related to the civil case are not reimbursable in this proceeding. Because the invoice precludes an accurate separation of time spent on the administrative case from the civil case, all billings for dates upon which charges were incurred related to the civil case have been excluded from consideration in this Order. The charges related to conversations with John Goldsmith, who represented the Petitioner in the civil case, are excluded. These charges occurred on March 14, 2001; April 2, 2001; April 6, 2001; September 21, 2001; October 19, 2001; and May 13, 2002, and total 8.25 hours. The charges related to conversations with Jonathon Alpert, who represented the basketball players in the civil case, are excluded. The charges occurred on April 10, 2001, and April 11, 2001, and total 6.75 hours. The charge related to a conversation with Tom Gonzalez, who represented USF in the civil case, is excluded. This charge occurred on April 23, 2002, for .50 hours. The charges related to conversations with Mary Lau, who was a mediator assigned to the civil case, are excluded. These charges occurred on April 24, 2002, and May 8, 2002, and totaled 1.25 hours. The invoice includes a charge for May 15, 2002, related to a telephone conference with "Judge Scriven" regarding settlement. Judge Scriven is otherwise unidentified. The charge, for .25 hours, is excluded. The invoice includes a charge for Mr. McKee's attendance at mediation on May 16, 2002, related to the civil case, for 2.5 hours. This charge is excluded. The sum of the excluded time set forth above is 19.50 hours. Deduction of the 19.50 hours from the properly invoiced total of 339.50 results in a total of 320 hours. Based on Mr. Wenzel's testimony that the invoiced hours were reasonable given the nature and complexity of this case, it is found that the reduced level of 320 hours set forth in the invoice and directly applicable to the administrative case is a reasonable expenditure of time. The invoice also sets forth costs that were billed to the Petitioner. The invoice includes numerous routine office expenses (postage, copying, telephone, and facsimile costs) that are not properly recoverable costs in this proceeding. Other billed costs are set forth without sufficient information to determine the relationship of the cost to the administrative proceeding. A filing fee with the District Court of Appeal was billed on January 15, 2001, preceding the administrative hearing in this case. Further the billed charges include witness fees for several witnesses, only one of which testified in the administrative hearing. The invoice also includes service fees for subpoenas that appear to have been charged subsequent to the completion of the administrative hearing. Based on review of the invoice, properly recoverable costs of $307 are found. This sum includes the following items: witness fee and mileage for Paul Griffin ($7) dated April 5, 2001; service fee for subpoena for Paul Griffin ($50) dated April 11, 2001; and filing fee-clerk, District Court of Appeal ($250) dated October 5, 2001. Petitioner's Exhibit 2 is a "Retainer and Fee Agreement" executed by the Petitioner and her counsel which provides as follows: Partial contingency fee. Client will pay for services rendered at the reduced rate of $110 per hour. To compensate attorney for this reduced rate and the risk involved in undertaking a case on these terms, in addition to the $110 hourly rate, attorney will be entitled to 25% of any settlement money or judgment. In the event attorney's fees are awarded to the client by any court or tribunal and collected, attorney will be entitled to such fee (less any amount paid by client, which will be reimbursed pro rata) or the partial contingency fee, whichever is greater. Attorney requires a retainer deposit from client in the amount of $2,500, to be replenished from time-to-time as required to cover outstanding fees and costs. The Retainer and Fee Agreement is dated December 2, 2002, and the Order of the District Court of Appeal for the Second District, which granted the Petitioner's Motion for fees and costs, is dated November 8, 2002. It is unclear whether a written agreement between the Petitioner and legal counsel existed prior to the December 2, 2002, agreement.
The Issue Whether Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 should be denied on the ground that said claim was not timely filed with Department of Management Services, Division of State Employees' Insurance (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and has been at all times material to the instant case, a participant in the State of Florida Flexible Benefits Plan (hereinafter referred to as the "Plan") with an established Medical Reimbursement Account. The following were among the medical expenses incurred by Petitioner and members of her immediate family during the 1992 calendar year: DATE TYPE OF SERVICE AMOUNT 6/29/92 Dental $70.00 7/9/92 Dental $310.00 7/11/92 Endodontic $450.00 7/17/92 Optical $266.75 7/22/92 Dental $500.00 7/27/92 Optical $84.70 8/19/92 Optical $416.50 12/29/92 Dental $210.00 In August of 1992, Hurricane Andrew ravaged parts of South Florida. Petitioner's residence was extensively damaged by the storm. Most of the contents of the residence, including medical records and receipts, were destroyed. Petitioner and her family were forced to vacate the premises. They packed their remaining belongings and moved to another location in Dade County, with the intention of returning to their home once the damage to the structure had been repaired. As of the date of the hearing in this case, all of the necessary repairs to the home had yet to be made and therefore the family had not moved back in. Petitioner and the other members of her family were among those residents of South Florida whose lives were significantly disrupted by the hurricane and the destruction and devastation it caused In the aftermath of the hurricane, Petitioner directed her energies toward obtaining a return to normalcy in her life. Although she realized that there were medical expense reimbursement claims that she needed to file with the Department, filing these claims was not a priority of hers. She focused her attention on other matters that she considered to be more deserving of her time given her situation. In January or February of 1993, Petitioner telephoned the Department to inquire if extensions of time for filing reimbursement claims were being given to Plan participants, such as herself, who were still suffering from the consequences of Hurricane Andrew. The person to whom Petitioner spoke advised her that such extensions were indeed being given. Based upon what she had been told by this Department representative, Petitioner reasonably believed that she would be able to file reimbursement claims for 1992 medical expenses after March 1, 1993, without having these claims rejected on the ground that they had been untimely filed. She therefore felt that there was no urgency with respect to the filing of these claims and she acted accordingly. Shortly after gathering all of the supporting documentation she believed she needed, 1 Petitioner, on September 29, 1993, filed a claim with the Department requesting that she be reimbursed from her Medical Reimbursement Account for the medical expenses enumerated in Finding of Fact 2 of this Recommended Order. The Department designated the claim as Claim No. 34092993. Petitioner also sought reimbursement, through the filing of this claim, of certain medical expenses incurred in 1993, including $140.00 for dental work that Petitioner had inadvertently indicated on the claim form had been performed in July of 1992. The work had actually been done in July of 1993. By letter dated October 8, 1993, the Department advised Petitioner that "[o]nly expenses for services rendered during the January 1, 1993 through December 31, 1993 plan year are eligible for reimbursement" and that "[s]ince [her] 1992 expense does not fall within this plan year, it is not reimbursable." Petitioner responded to this advisement by sending the following letter, dated November 28, 1993, to the Department: This is a petition or application requesting a formal hearing on my Claim #34092993 for Payment/Reimbursement for expenses incurred during my period of coverage for 1992. This Claim was denied. My Name is: Luretha F. Lucky My Address is: 10430 S.W. 162nd Terrace (temporary) Miami, Florida 33157 My permanent address is: 10361 S.W. 139th Street Miami, Florida 33176 I am employed at Florida International University, Miami, Florida 33199. I filed my claim late because my home was severely damaged when hit [b]y Hurricane Andrew, August 24, 1992. In addition, the content[s] in my home w[ere] destroyed, therefore, it took awhile for me to collect documentation for my claim from medical personnel. Also, I had to move and the few items saved were packed away. Lastly, I called the Department of Management Services, Division of State Employees' Insurance to inform them of what had happened to me and asked if . . . they were providing extensions on submitting claims. I was told they were. My mistake was not asking and recording the name of the person with whom I spoke. As you can see from my temporary address, I am still not back in my home! In fact we just settled (with the assistance of the Insurance Commissioner's Office) with our insurance company to complete the work on our home. We had to request an extension on filing our income tax for 1992. This past year has been an awful experience for us, and I do hope you will provide me a hearing on my reimbursement. My Claim # is: 34092993. The decision that my claim was denied was received by regular mail. Thank you very much for considering my request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department enter a final order finding Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 to have been timely filed and therefore subject to consideration on its merits. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 15th day of April, 1994.
