Findings Of Fact Rebecca Lillien is a 32-year-old developmentally disabled person who was involuntarily committed to the Department of Health and Rehabilitative Services' (hereinafter "HRS") Residential Care Program. HRS has placed Rebecca Lillien at the Lyall Group Home in Opa Locka, Florida, under the Community Residential Training program. Rebecca Lillien also attends a day training program at United Cerebral Palsy in Miami, Florida. Under contract, HRS pays Lyall Group Home $411 per month to provide residential care (room, meals, and supervision) for Rebecca Lillien. Rebecca Lillien's total income consists of Social Security survivor's benefits and Supplemental Security Income (hereinafter "SSI") disability benefits totaling $345 per month. The SSI Program is a federal welfare program administered by the Social Security Administration. The SSI Program provides up to $345 per month in cash benefits to elderly, blind, or disabled persons who also meet financial eligibility requirements (income less than $345 per month and countable resources of less than $1,600). Audrey Lillien is the mother of Rebecca Lillien and is the representative payee of Rebecca's Social Security and SSI benefit checks. Audrey Lillien's total income consists of Social Security and SSI benefits totaling $345 per month. Rebecca Lillien is an adult client. She is unmarried and is considered to be a family of one since she is over the age of 18, has not been declared legally incompetent, does not have a guardian, and has no dependents. The Social Security and SSI benefits she receives are legally hers. On February 17, 1983, HRS granted a total waiver of fees for the residential care of Rebecca Lillien at the Lyall Group Home, retroactive to July 23, 1982. At the time the fee waiver was granted in 1983, Rebecca Lillien's only income was from Social Security and SSI benefits., From February 1983 until March 31, 1985, HRS did not bill Audrey Lillien for Rebecca's care. During that same time period, HRS did not require the annual submission of a completed Maintenance Fee Information Form, HRS Form 280, in order to determine the continued eligibility of Rebecca Lillien, for a total fee waiver or a reduced fee. In 1983, the Fee Collection Review Committee, in determining whether to grant a fee waiver or reduction, improperly considered personal expenses paid by parents for adult children. Due to serious fiscal impact and budget deficits in HRS District Eleven (the district within which Rebecca Lillien resides), the Pee Collection Unit was reorganized and received training on fee collections. It was discovered at that time that the Fee Collection Unit and the Fee Collection Review Committee were not following proper procedures for assessing a fee and were misinterpreting state law. Specifically, they were not requiring that a client's income based on benefit payments is to be applied first to the cost of care and maintenance of the client. In 1985 fee collections began to be implemented by District Eleven in a uniform manner in strict accordance with the regulations and policies of HRS. The provision that required as priority that room, board, and maintenance be offset was strictly enforced. This change in interpretation and implementation of the fee collection regulations and policies is not in violation of or contrary to any existing statute, regulation, or rule; rather, it is in compliance with the existing statutes, regulations, and rules. In March 1985, HRS assessed a monthly fee of $295 for the care and maintenance of Rebecca Lillien. The fee was calculated on the total income of Rebecca Lillien minus $50 personal allowance. The fee was assessed against Audrey Lillien in her capacity as representative payee. The personal allowance is an amount of $50 given to residential care clients for personal needs such as clothing, recreation, hygiene products, and miscellaneous needs. In March 1985 the personal allowance was $40 per month, but it was increased to $50 per month as of July, 1985. If a client's personal needs exceed $50 per month, HRS is authorized to allow $28 more per month as an incidental allowance, payable to the group home. In March, 1985, Audrey Lillien was notified by HRS that the monthly fee for Rebecca's maintenance would be $295. HRS further notified Audrey Lillien that Rebecca was responsible for that fee retroactively and interest would be assessed on the retroactive balance. At the final hearing in this cause, HRS properly waived any claim for retroactive payment and therefore any claim for interest. HRS is required to develop an habilitation plan each year for Rebecca Lillien. This annual habilitation plan sets forth the treatment and therapeutic objectives for the coming year based upon the needs of Rebecca Lillien. On April 3, 1985, an habilitation plan was developed for her. The HRS team that evaluated Rebecca Lillien determined that a group home was the most appropriate placement for her. The evaluation team also determined that Rebecca Lillien should continue regular visitation with her mother as long as it remains beneficial to her and that she should continue to participate in activities she enjoys, such as musical programs, movies, and going to restaurants. The evaluation team further determined that Rebecca Lillien needs training in daily living skills and in self-care skills. The daily-living goal is for Rebecca to be able to verbalize and demonstrate appropriate behavior in stores, and the goals for self-care skills include grooming and the ability to independently choose pieces of clothing that coordinate. There is no mention in the habilitation plan that any items must be purchased, however. Further, the daily living skills and self- care skills are part of the training Rebecca receives at the United Cerebral Palsy Program, the cost of which is paid by HRS. It is beneficial to Rebecca for her mother to reinforce the training that Rebecca receives in the day training program so as to support her continued progress in the development of those skills. The habilitation plan also calls for routine medical and dental care and vitamin C supplements. HRS and Medicaid pay for all medical and dental expenses of the client, including prescriptions. Rebecca Lillien is a healthy person who has good teeth and, as such, does not have extraordinary or unusual medical or dental expenses. There is no evidence that Rebecca Lillien has required any dental or medical care at all over the last several years. Petitioners did introduce one bill for a "consultation" but presented no evidence as to the reason for that consultation and, therefore, no evidence that that charge should have been incurred. Although Audrey Lillien does purchase vitamin C for Rebecca Lillien, she does not purchase any prescription drugs for her. The habilitation plan developed on April 30, 1986, contains the same goals and recommendations as the 1985 plan. HRS does not pay for Rebecca Lillien's clothes, personal care items, recreation needs (other than those provided by the group home), spending money, transportation to visit her mother, food, and shelter expenses not incurred at the group home, or medical and dental costs not covered by medicare or medicaid. Audrey Lillien uses Rebecca Lillien's income to cover her own household expenses and transportation, as well as to provide Rebecca with the items enumerated in the preceding Finding of Fact. Rebecca Lillien stays with her mother Audrey Lillien approximately every other weekend and on holidays. Audrey Lillien purchases two different sets of clothing for Rebecca. One set is for use at the group home and the other is for use at Audrey Lillien's home. Based upon Petitioners' income and the totality of circumstances, duplication of wardrobes is excessive and unwarranted. Rebecca Lillien has a hobby of making beaded jewelry. In a four-month period Audrey Lillien spent almost $300 on beads for Rebecca, including a total of $226 on a single day--March 6, 1986. 8ased upon Petitioners' income and the totality of circumstances, expenditures of this amount are excessive. Audrey Lillien spends approximately $100 per month for groceries for Rebecca for the days that Rebecca is visiting her. In addition, she and Rebecca also dine at restaurants while Rebecca is visiting. Such a food expense is excessive. Audrey Lillien claims-transportation expenses as expenses incurred on Rebecca's behalf. Audrey Lillien's testimony as to the expense of maintaining her personal automobile is conflicting, and her testimony that 98% of her automobile expenses are attributable to Rebecca's transportation is simply not credible. In view of Rebecca's regular visits with Audrey Lillien, however, allowance should be made for some reasonable expense of transporting Rebecca between the Lyall Group Home and her mother's home, with that expense being paid out of an incidental allowance. Audrey Lillien has monthly household expenses of approximately $52 (mortgage on her condominium), $65 (condominium maintenance fee), and $100 (utilities). Her mortgage payment and maintenance fee are fixed and have no relationship to whether Rebecca is visiting. Although her utility bill may vary somewhat depending upon the frequency and duration of Rebecca's visits, no evidence was introduced to show what portion of Audrey Lillien's utilities bill might be attributable to Rebecca. Audrey Lillien gives Rebecca Lillien $30 a month for "whatever she wants. n This amount is less than the standard personal allowance of $50 given by HRS to each of its residential clients and is, indeed, in addition to the $50 personal allowance paid by HRS. Audrey Lillien pays for Rebecca Lillien's haircuts. These cost $8 every four to six weeks. She also pays for some special shampoo and skin cream which Rebecca needs. The evidence is unclear as to whether the shampoo and skin cream are medically required. If they are, it may be that these items should be billed to medicaid or to HRS as covered prescriptions. Upon receiving notice in 1985 of the assessed fee of $295 per month ($345-$50=$295), Audrey Lillien requested a review of that fee for purposes of being granted a reduction or a waiver of the fee. The HRS Fee Collection Unit, which determines what fee is to be charged, does not have authority to assess a lower fee than the fee calculated by deducting the personal allowance from the total monthly income. The HRS Fee Collection Review Committee may review an assessed fee and, based upon allowable expenses and other criteria, may grant a reduction or waiver of that fee. For example, the fee may be reduced or waived if the client can show severe, unusual and unavoidable expenses or obligations that warrant special consideration. The personal need allowance of $50 per month is not sufficient to meet the personal needs of Rebecca Lillien in view of the fact that Rebecca spends a fair amount of her time residing with Audrey Lillien rather than at the Lyall Group Home where HRS pays for her support. Fifty dollars is the amount of personal allowance paid by HRS, apparently regardless of whether it is needed. However, Rebecca has unusual needs in that, as opposed to other clients, she incurs regular transportation costs between the Lyall Group Home and her mother's home, food must be purchased for her while she is at her mother's home, and her mother must pay increased utilities while she is there. HRS will pay an additional $28 a month (in addition to the $50 personal allowance) for unusual expenses. Clearly, Rebecca's food, transportation, and utility costs while at her mother's logically exceed $28 per month and Rebecca is, therefore, entitled to the extra $28 payment from HRS. Petitioners are not entitled to a reduction in the assessed fee, however, since they have failed to prove the reasonable costs of Rebecca Lillien's unusual expenses of transportation, food, and utilities attendant to her visits with her mother.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Rebecca Lillien's request for a waiver of fee; assessing a fee of $295 per month, effective upon entry of a Final Order in this cause; and granting to Rebecca Lillien the sum of $28 per month as an incidental allowance in addition to the $50 per month standard personal allowance to assist in the unusual expenses related to her visits with her mother, effective upon entry of a Final Order in this cause. DONE and RECOMMENDED this 13th day of October, 1986, LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1986. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Rena R. Magnolnick, Esquire 2138 Biscayne Boulevard Suite 206 Miami, Florida 33137 Carmen Dominguez, Esquire Department of Health and Rehabilitative Services 2200 N.W. 7th Avenue Miami, Florida 33127 Leo PloLkin, Esquire 2085 U.S. 19 North Suite 314 Jenniffer Complex Clearwater, Florida 3357
Findings Of Fact Respondent is and at all material times has been licensed as a real estate broker, Florida license number 0388729. Respondent was licensed with United Farm Agency of Florida, Inc. United Farm Agency of Florida operated two offices relevant to this proceeding, one office in Live Oak, the other in Lake City. Both offices were headed by William Goff, another licensed broker. During the summer of 1985, Goff, desiring to retire, made arrangements with United Farm Agency, through his supervisor, Steve Goddard, to withdraw from the operations of the offices. Goff left the Lake City office in July, 1985, and left the Live Oak office in October, 1985. Respondent was employed by United Farm Agency, through supervisor Steve Goddard, in July, 1985, when he took over operation of the Lake City office, which Goff had already vacated. Prior to Goff's retirement, Goff and Goddard verbally agreed that Goff would receive a portion of the commission paid to the seller of existing property listings Goff had obtained. This agreement was relayed by Goddard to Respondent, who verbally agreed to pay the fee on listings which were given to Hofmann. The agreed sum, referred to as a "listing fee," was to be 30% of the Respondent's 60% share of the total commission. The fee was to be paid to Goff, if and when Respondent sold property which remained under a valid Goff-executed listing contract. Goff and the Respondent did not directly discuss the arrangement, but relied on Goddard to act as the mediator. On or about June 26, 1985, Goff listed for sale, property owned by the Lewandowski family. The listing contract stated that the listing contract was to remain effective for a period of one year; however the expiration date was mistakenly entered on the contract as June 26, 1985. The contract expiration date should have been stated as June 26, 1986. The evidence did not indicate that the contract was intended to have been effective for only one day. While the Goff listing remained effective, the Lewandowskis allegedly entered into a second listing contract, this time with the Respondent. Respondent stated that he did not believe the Goff listing contract to be valid due to the mistaken expiration date. The Lewandowskis did not sign a cancellation of the Goff listing contract. Goff, not yet fully retired, continued to show the property to prospective purchasers, but did not inform Respondent that he continued to show the property. During the time the original Goff listing was effective, the Respondent found a buyer for the Lewandowski property. The agreed sales price was $240,000. The Respondent's share of the commission was about $8,640. The Respondent retained the full commission, and refused to pay the "listing fee" to Goff. Goff contacted Goddard, who reminded the Respondent of the agreement to pay the fee. Respondent refused to pay the listing fee, claiming that he had not been given the listing when he became employed by United Farm Agency. Goff proceeded to file suit to collect the fee. In May 1987, a Final Judgement was entered in Columbia County Court, Case No 86-845-CC, finding Respondent liable for payment of the listing fee and directing Respondent to pay to Goat the sum of $4,320.00, plus $604.92 interest, and $50.00 costs. Respondent has failed and refuses to pay the judgement.
Recommendation Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the licensure of Peter K. Hofmann for a period of two years. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5541 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-5. Accepted. 6-7. Accepted, as modified in the Findings of Fact. Rejected, irrelevant. Accepted. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-3. Accepted. 4. Rejected, not supported by the weight of the evidence. 5-6. Rejected insofar as mere restatement of testimony, otherwise accepted, as modified in the Findings of Fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Peter K. Hofmann 73 Quinlan Drive, #1 Greenville, South Carolina 29611 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The facts as presented indicate that AAA published a newspaper advertisement stating in pertinent part regarding fees: "Fee: 1 Weeks Salary Upon Acceptance." The Department alleged this ad was a misrepresentation of the fees charged because it departed from the fee schedule filed with the Department by (1) failing to include the word "cash" relating to the one week's salary, and failing to include the alternative term payment option. Therefore, the issue is whether the ad as published departs from the fee schedule filed with the Department of State.
Findings Of Fact AAA Employment is organized as a partnership and licensed by the Department of State as a private employment agency. AAA caused to be published the newspaper advertisement received as Exhibit 2. This advertisement states with regard to fees: "Fee: 1 Weeks Salary Upon Acceptance." The complaint upon which the Department of State acted was received from a competitive agency. No evidence was presented concerning AAA's contracts with its customers. No evidence was presented concerning AAA's practices with regard to its customers. The fee schedule filed by AAA with the Department of State was introduced as Exhibit 1. This exhibit provides regarding the fee schedule as follows: FEE: 1 WEEKS SALARY--CASH PAYABLE: Upon acceptance or FEE: 2 WEEKS SALARY--TERMS PAYABLE: 1/4 upon acceptance, before starting of work. Remainder of fee to be paid in 3 weeks, in 3 equal weekly installments. Temporary work: 1/2 weeks salary, cash Daywork: 15 percent of gross salary Waiters & Waitresses: $40.00 cash All commission jobs: $200.00 cash All seasonal jobs are considered permanent work. A letter dated May 29, 1979, from the Department of State to AAA advised that the Department felt that advertisement of the agency's cash fee without advertisement of its two term fee was a violation of Rule 1C-2.08(10), Florida Administrative Code. Subsequently, AAA filed an amended fee schedule which was introduced as Exhibit 1 (see Paragraph 4 above). This amendment substantially altered the fee schedule and provided for both cash and term payments. The annual licensing fee paid by AAA is $100.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no civil penalty be levied against the AAA Employment Agency. DONE and ORDERED this 22nd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1980. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. John DeHaven AAA Employment Agency 500 East Central Avenue Winter Haven, Florida 33880
The Issue Whether there is probable cause for Petitioner to bring an action against Respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Respondents sell used cars in Pensacola, about 500 a year. On or about June 19, 1981, when Fannie Mae Tunstall bought a '76 Buick LeSabre from Fairfield Motors, Inc. (Fairfield), she dealt with Elaine Owens Atkins, who is Fairfield's general manager, secretary-treasurer and a six-year employee. The installment sales contract specified an annual percentage rate of 29.64 percent, and was stamped with the legend, "MINIMUM $25 REPO OR COLLECTION FEE." Respondent's Exhibit No. 1. Ms. Tunstall told Ms. Atkins the payments were too much but signed the papers anyway, and did so without reading them, although Ms. Atkins had told her to read them. The payments did indeed prove too much and Ms. Tunstall fell behind. She was 13 days late with a payment in November of 1981, but Ms. Tunstall and Ms. Atkins had discussed the matter and Fairfield agreed to accept the payment late. Fairfield accepted other payments late, but arranged to have Willie Easley (formerly a singer and now a minister as well as a repossessor of cars) take possession of the Quick early in the morning of January 10, 1983, and drive it away. Ms. Tunstall had failed to make the monthly payment due December 30, 1982. Ms. Atkins had telephoned her once and gotten no answer. Later on January 10, 1983, Fairfield agreed to return the car in exchange for December's payment, another payment in advance, a six dollar late fee and a $100 repossession fee. Ms. Tunstall paid the entire balance Fairfield claimed to be owed and retrieved the car. Linda Louise LaCoste and her husband Ronnie have bought several cars from Fairfield, including a 1976 Chevrolet Suburban Mr. LaCoste bought on February 7, 1983, under an installment agreement calling for interest at an annual percentage rate in excess of 30 percent. The "cash price" was $3,459.75, and the "total sale price" was $4,613.15. Respondent's Exhibit No. 3. The LaCostes understood from prior dealings that their agreement required Mr. LaCoste to maintain insurance on the vehicle, and Mr. LaCoste contracted with Allstate Insurance Company (Allstate) for appropriate coverage. Allstate sent Fairfield a notice of cancellation for nonpayment of premium effective 12:01 A.M. April 4, 1983. Petitioner's Exhibit No. 4. At 11:25 A.M. on April 4, 1983, Allstate accepted the premium Ronnie LaCoste offered in order to reinstate the policy, No. 441361747, and Allstate's Chirstine Smith also wrote a new policy to be sure there would be coverage. Ms. Smith told Fairfield that insurance was in force on April 4, 1983. On April 20, 1983, Allstate issued another notice of cancellation for nonpayment of premium on policy No. 441361747, effective 12:01 A.M. May 4, 1983. At ten minutes past three o'clock on the afternoon of May 4, 1983, Mr. LaCoste's Chevrolet Suburban was repossessed at Fairfield's instance on account of the apparent lapse of insurance. Mrs. LaCoste and here sister appeared promptly at Fairfield's place of business and tendered payment due that day. All prior payments to Fairfield were current. When Mrs. Atkins refused payment, Mrs. LaCoste and here sister protested with such vehemence that a Fairfield employee called the sheriff's office. According to Fairfield's contemporaneous records, Fairfield employees ("we") tried to give Mrs. LaCoste a letter "advising vehichle [sic] would be held for 10 days" (i.e., that it would be sold thereafter) but "she refused to accept a copy." Respondent's Exhibit No. 3. At hearing, Ms. Atkins conceded that she had not mailed a copy of the letter to Mr. LaCoste but testified that Mrs. LaCoste accepted a copy after refusing to take it initially. Mrs. LaCoste denied that she ever received the letter, and her version has been credited. On May 7, 1983, Fairfield received another communication from Allstate. Whether insurance coverage in fact lapsed on May 4, 1983 was not clear from the record. On May 17, 1983, Fairfield sold the Chevrolet Suburban for $2,050.00. Carolyn V. Kosmas purchased a 1978 Ford LTD II from Fairfield and made a downpayment of $550.00 on June 2, 1983. Under the terms of the installment sale contract, which called for an annual percentage rate in excess of 29 percent, she was to begin seventy dollar ($70.00) biweekly payments on June 22, 1983. At the time of the sales of the Ford to Ms. Kosmas on June 2, 1983, Fairfield asked for credit information about her fiance as well as about herself. On June 24, 1983, she appeared at Fairfield's place of business and tendered not only the payment due June 22 but also the payment due July 6, a total of $140.00 in cash. Ms. Atkins refused to accept the money, telling her that her references had not panned out, and asked her to surrender the keys to the car and gather up her personal effects. Ms. Kosmas made no secret of her opinion that she was not being treated fairly, but, crying and afraid, eventually agreed to treat the transaction as a rental and accepted a refund of $104.39 on that basis. Ms. Atkins "advised if she gave me another background sheet, that I could verify, I would renegotiate with her," Respondent's Exhibit No. 5, but Ms. Kosmas told Ms. Atkins that she had lost her job at West Florida Hospital and the renegotiation eventuated in the retroactive lease. Respondent Pearl Allen was present on June 24, 1983, and took the car keys from her. It was also he who wrote her on June 27, 1983 that the 1978 Ford LTD II would be privately sold on July 6, 1983. She did not appear when and where she was told the sale would occur. The Ford was in fact sold at auction in Montgomery, Alabama, on July 19, 1983. Respondent's Exhibit No. 5. Mary Lee Hobbs' husband Forace paid Fairfield $800.00 down on a 1977 Oldsmobile 98 on February 27, 1982, agreeing to maintain insurance on the car until paid for, and to pay the unpaid principal balance of $4134.25 over a two and a half year period together with interest at an annual percentage rate of 29.79. Stamped on the contract was the legend, "MINIMUM $25 REPO OR COLLECTION FEE." In part, the installment sale contract read: * NOTE: DISCLOSURES REQUIRED BY FEDERAL LAW, Respondent's Exhibit No. 6 (reduced in size), has been omitted from this ACCESS Document. For review, contact the Division's Clerk's Office. All payments were current when, at about half past five o'clock on the morning of November 1, 1983, Fairfield's agents used a wrecker to remove the Oldsmobile, damaging the Hobbses' porch in the process. Fairfield acted because it received notice of cancellation or nonrenewal of the insurance policy that Hobbs maintained on the car. Typed on the form notice as the effective date of cancellation was November 29, 1983. Someone has written in ink "should be 10-29." In fact the insurance policy never lapsed. According to Fairfield's records, they received conflicting information, on October 29, 1983, about whether an insurance premium had been paid. The Hobbses' 27-year old "daughter said they p[ai]d--Conway Spence said they did not pay." Respondent's Exhibit No. 6. This was the same day Mr. Spence, an insurance agent, erroneously informed Fairfield that the effective date of expiration "should be 10-29." Respondent's Exhibit No. 6. Even after Mr. Spence's error was known to it, Fairfield refused to return the car without payment of a $75.00 "repossession fee," and also refused to let the Hobbs children return with the laundry they were sent to fetch from the trunk of the car. It was the refusal to give up the dirty laundry that sent Mrs. Hobbs to the authorities. Karel Jerome Bell bought a 1977 Delta 88 Oldsmobile from Fair field on July 22, 1982, under an installment sale contract calling for two "pick up notes" to be paid in August of 1982 and biweekly payments of $125.00 thereafter until payments reached a total of $4161.212. Respondent's Exhibit No. 7. The "pick up notes," each for $220.00 were due August 7 and 21, 1982, and were not treated as down payments on the installment sale form. After reducing his indebtedness to $1221.21, Mr. Bell fell two payments behind, and Fairfield repossessed the Oldsmobile on July 7, 1983. The same day Fairfield wrote Mr. Bell that it intended to sell his car, but not time or date was specified. On July 8, 1983, Mr. Bell called and asked whether he could continue making payments while the car on the lot. Respondent's Exhibit No. 7. Fairfield's Ms. Gilstrap accepted $100.00 from Mr. Bell on July 12, 1983, which she applied to satisfy a reposession fee of $100.00. On the Bell contract, too, had been stamped, "MINIMUM $25 REPO OR COLLECTION FEE." Ms. Gilstrap "told him as long as he paid something something regularly on the account, I felt sure we would hold it for him." Mr. Bell indicated he would pay an additional $125.00 the following Friday and Ms. Gilstrap made a notation to this effect in his file, where she also wrote, "Pls. don't sell he intends to pay for." Respondent's Exhibit No. 7. Mr. Bell had not made any further payment when, on July 30, 1983, without notice to Mr. Bell, Fairfield sold the car for $1,000.00 to a wholesaler. Respondents use form installment sale contracts. A blank form like the one in use at the time of the hearing was received as Respondent's Exhibit No. This was the form used in the Kosmas and LaCoste transactions. The predecessor form used in the Bell, Hobbs and Tunstall transactions was similar in many respects. The earlier form provided, "LATE CHARGES: Buyer(s) hereby agrees to pay a late charge on each installment in default for 10 days or more in an amount of 5 percent of each installment or $5.00 whichever is less." On the reverse, the form provided: ACCELERATION AND REPOSSESSION. In the event any Buyer(s) or Guarantor of this Contract fails to pay any of said installments, including any delinquency charges when due or defaults in the performance of any of the other provisions of this Contract or (c) in case Buyer(s) or Guarantor becomes insolvent or (d) institutes any type of insolvency proceedings or (e) has any thereof instituted against him, or (f) has entered against him any judgment or filed against him any notice of lien in case of any Federal tax or has issued against him any distraint warrant for taxes, or writ of garnishment, or other legal process, or (g) in case of death, adjudged incompetency, or incarceration of the Buyer(s) or Guarantor or (h) in case the seller or the holder of this Contract, upon reasonable cause, determines that the prospect of payment of said sums or the performance by the Buyer(s) or his assigns of this Contract is impaired, then, or in such event, the unpaid portion of the balance hereunder shall, without notice, become forthwith due and payable and the holder, in person or by agent, may immediately take possession of said property, together with all accessions thereto, or may, at first, repossess a part and later, if necessary, the whole thereof with such accessions, and for neither or both of these purposes may enter upon any premises where said property, may be and remove the same with or without process of law. Buyer(s) agrees in any such case to pay said amount to the holder, upon demand, or, at the election of the holder, to deliver said property to the holder. If, in repossessing said property, the holder inadvertently takes possession of any other goods therein, consent is hereby given to such taking of possession, and holder may hold such goods temporarily for Buyer(s), without responsibility of liability therefor, providing holder returns the same upon demand. There shall be no liability upon any such demand unless the same be made in writing within 48 hours after such inadvertent taking of possession. Should this contract mature by its term or by acceleration, as hereinabove provided, then, and in either such event, the total principal amount due hereunder at that time shall bear interest at the rate of 10 percent per annum, which principal and interest, together with all costs and expenses incurred in the collection hereof, including attorneys fees (to be not less than 15 percent of the amount involved), plus appellate fees, if any, and all advances made by Seller to protect the security hereof, including advances made for or on account of levies, insurance, repairs, taxes, and for maintenance or recovery of property shall be due the Holder hereof and which sums Buyer(s) hereby agrees to pay. * * * LIABILITIES AFTER POSSESSION. Seller, upon obtaining possession of the property upon default, may sell the same or any part thereof at public or private sale either with or without having the property at the place of sale, and so far as may be lawful. Seller may be a purchaser at such sale. Seller shall have the remedies of a secured party under the Uniform Commercial Code (Florida) and any and all rights and remedies available to secured party under any applicable law, and upon request or demand of Seller, Buyer(s) shall, at his expense, assemble the property and make it available to the Seller at the Seller's address which is designated as being reasonably convenient to Buyer(s). Unless the property is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Seller will give Buyer(s) reasonable notice of the time and place of any public or private sale thereof. (The requirement of reasonable notice shall be met if such notice is mailed, postage prepaid, to Buyer(s) at address shown on records of Seller at least five (5) days before the time of the sale or disposition) Expenses of retaking, holding, preparing for the sale, selling, attorneys' fees, supra, incurred or paid by Seller shall be paid out of the proceeds of the sale and the balance applied on the Buyer(s) obligation hereunder. Upon disposition of the property after default, Buyer(s) shall be and remain liable for any deficiency and Seller shall account to Buyer(s) for any surplus, but Seller shall have the right to apply all or any part of such surplus against (or to hold the same as a reverse against) any and all other liabilities of Buyer(s) to Seller. Similarly, the more recent form provides, on the obverse, Late Charge: If a payment is received more than ten (10) days after the due date, you will be charged $5.00 or five (5 percent) of the payment, whichever is less. and on the reverse, has identical provisions on "Acceleration and Repossession" and "Liabilities After Repossession."
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner find probable cause to initiate judicial proceedings against Respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 26th day of April, 1985, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of April, 1985. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Paul A. Rasmussen, Esquire Eggen, Bowden, Rasmussen & Arnold 4300 Bayou Boulevard, Suite 13 Pensacola, Florida 32503 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
Findings Of Fact Petitioner was represented by in this case by Michael Linsky, Esquire, beginning in April 1988. Two complaints of discrimination had been brought against the Department of Corrections by Petitioner. Linsky is an experienced trial lawyer having been admitted to the Florida Bar in 1970. However, he had no experience with discrimination cases prior to these proceedings. The Florida Commission on Human Relations found the Department had committed an unlawful employment practice when it assigned Petitioner to perimeter post duty and transferred him to Polk Correctional Institution in retaliation for having filed a discrimination complaint. Linsky originally took Petitioner's case on a contingency fee basis, but later it was decided between Linsky and Petitioner that the fee would be whatever was awarded by the Commission. Petitioner was only to be responsible for costs. Linsky submitted into evidence as Exhibit 1 a list of dates and hours expended on this case. However, this exhibit was prepared by Linsky's secretary some months after the events depicted and appear grossly exaggerated in some instances. Linsky claims a total of 159.35 hours expended. Linsky testified that his billing rate from April 1988 to December 1988 was $175 per hour, and thereafter it was raised to $190 per hour. Petitioner's expert witnesses contend the average billing rate in the Tampa area for this type of case ranges from $125 to $175 per hour. Respondent's expert witnesses contend the fees awarded run from $100 to $150 per hour. I find the appropriate fee in this case to be $135 per hour. Although Linsky claims to have spent 159.35 hour on this case, including the attorney's fees portion, 1 find that only 100 hours are reasonable. Costs of $423.60 is not disputed.
Recommendation It is recommended that the Department of Corrections be directed to pay Sefsick's attorney $13,500 attorney's fees and $423.60 costs in these proceedings. DONE AND ENTERED this 28th day of September, 1990, in Tallahassee, Florida. K. N. AYERS 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 28th day of September, 1990. APPENDIX Petitioner's proposed findings are accepted, except: 3. This proposed finding is accepted as a recital of the testimony presented, but rejected insofar as inconsistent with H.O. #8. 5. Rejected insofar as inconsistent with H.O. #7. 6 and 7. Accepted as legal argument, but rejected as a finding of fact. Respondent's proposed findings are accepted. COPIES FURNISHED: Michael A. Linsky, Esquire 600 North Florida Avenue Suite 1610 Tampa, FL 33602 Lynne T. Winston, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Louis A. Vargas General Counsel Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 Richard L. Dugger Secretary Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 =================================================================
The Issue The issue for determination is whether Intervenors are entitled to reasonable attorney fees and costs pursuant to Section 120.595, Florida Statutes (2003).1
Findings Of Fact Petitioner is an insurer and carrier within the meaning of Subsections 440.02(4) and 440.02(38), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(w).2 Petitioner is licensed in the state as a workers' compensation insurance carrier (carrier).3 Respondent is a state agency within the meaning of Subsection 440.02(3), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(b). In relevant part, Respondent is responsible for resolving reimbursement disputes between a carrier and a health care provider. Intervenors are health care providers within the meaning of Subsection 440.13(1)(h), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(u). Each Intervenor is a health care facility within the meaning of Subsection 440.13(1)(g), Florida Statutes (2005). Intervenors seek an award of attorney fees and costs against Petitioner pursuant to Sections 57.105 and 120.595, Florida Statutes (2003). The proceeding involving Section 57.105, Florida Statutes (2003), is the subject of a separate Final Order entered on the same date as this Recommended Order. The scope of this Recommended Order is limited to Section 120.595, Florida Statutes (2003). Intervenors allege that Petitioner is the "non- prevailing adverse party" in an underlying proceeding and participated in the underlying proceeding for an "improper purpose" as the quoted terms are defined, respectively, in Subsections 120.595(1)(e)3. and 120.595(1)(e)1., Florida Statutes (2003). The underlying proceeding involves eight consolidated Petitions for Administrative Hearing. Petitioner filed each Petition for Administrative Hearing after Respondent determined Petitioner had improperly discounted the amount of reimbursement Petitioner paid for hospital services that Intervenors provided to eight patients from March 13, 2004, through February 11, 2005. From April 13 through May 23, 2005, Respondent issued separate orders directing Petitioner to pay the disputed amounts pursuant to Subsection 440.13(7), Florida Statutes (2005). From June 1 through June 21, 2005, Petitioner filed eight separate Petitions for Administrative Hearing. The eight petitions were subsequently consolidated into one underlying proceeding. Petitioner is the non-prevailing adverse party in the underlying proceeding. On December 8, 2005, Petitioner filed a Notice of Voluntary Dismissal in the underlying proceeding. On December 9, 2005, Intervenors filed their motion for attorney fees based on Section 120.595, Florida Statutes (2003). The formal hearing in the underlying proceeding was set for January 18, 2006. The ALJ amended the issue for the formal hearing to exclude the original reimbursement dispute and to limit the scope of the formal hearing to the fee dispute. The ALJ did so to avoid delay in the resolution of the proceeding. The fee dispute at issue in this proceeding includes only six of the original eight reimbursement disputes because Intervenors were not the medical providers in two of the original eight disputes.4 In the six reimbursement disputes involving Intervenors, Respondent ordered Petitioner to pay additional reimbursements in the aggregate amount of $54,178.52. Approximately $51,489.27 of the $54,178.52 in additional reimbursement involved inpatient hospital services provided to one patient.5 The remaining $2,689.25 in additional reimbursement involved outpatient hospital services in the emergency room.6 Subsection 440.13(12), Florida Statutes (2005), mandates that a three-member panel must determine statewide schedules for reimbursement allowances for inpatient hospital care. The statute requires hospital outpatient care to be reimbursed at 75 percent of "usual and customary" charges with certain exceptions not relevant to this proceeding. Notwithstanding the statutory mandate to schedule reimbursement rates for hospital inpatient services, the inpatient services at issue in the underlying proceeding were apparently unscheduled inpatient services. By letter dated April 13, 2005, Respondent ordered Petitioner to pay Intervenor, Holmes Regional Medical Center, Inc. (Holmes), an additional reimbursement in the amount of $51,489.27. The total reimbursement to Holmes was 75 percent of the charges that Holmes submitted to Petitioner for reimbursement.7 Respondent interprets Subsection 440.13(12), Florida Statutes (2005), to authorize reimbursement of both unscheduled inpatient hospital services and outpatient hospital services at the same rate. There is no dispute that Respondent reimburses unscheduled inpatient hospital services and outpatient hospital services at 75 percent of the "usual and customary" charges. The dispute in the underlying proceeding was over the meaning of the phrase "usual and customary" charges. Petitioner challenged the interpretation asserted by Respondent and Intervenors. Respondent and Intervenors contended that the quoted statutory phrase means Intervenors' usual and customary charges evidenced in a proprietary document identified in the record as the "charge master." Each Intervenor maintains its own charge master, and the information in each charge master is proprietary and confidential to each Intervenor. Petitioner asserted that the statutory phrase "usual and customary" charges means the usual and customary charges imposed by other hospitals in the community in which Intervenors are located. Petitioner maintains a data base that contains information sufficient to determine the usual and customary charges in each community. Petitioner did not participate in the underlying proceeding for an improper purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2003). Rather, Petitioner presented a good faith claim or defense to modify or reverse the then-existing interpretation of Subsection 440.13(12), Florida Statutes (2005). Petitioner had a reasonable expectation of success. The statutory phrase "usual and customary" charges is not defined by statute. Nor has the phrase been judicially defined. Respondent bases its interpretation of the disputed phrase on two agency final orders and relevant language in the Florida Workers' Compensation Reimbursement Manual for Hospitals (2004 Second Edition) (the Manual). The Manual is developed by the Florida Department of Financial Services (DFS).8 The Manual interprets the quoted statutory phrase to mean the "hospital's charges." However, after the effective date of the Manual in 2004, DFS developed a proposed change to the Manual that, in relevant part, interprets "usual and customary" charges to mean the lesser of the charges billed by the hospital or the median charge of hospitals located within the same Medicare geographic locality.9 The trier of fact does not consider the new interpretation of the disputed statutory phrase as evidence relevant to a disputed issue of fact. As Respondent determined in an Order to Show Cause issued on February 16, 2006, and attached to Intervenors' PRO, "what constitutes 'usual and customary' charges is a question of law, not fact." The ALJ considers the new interpretation proposed by DFS for the purpose of determining the reasonableness of the interpretation asserted by Petitioner in the underlying proceeding. The ALJ also considers the new DFS interpretation to determine whether the interpretation asserted by Petitioner presented a justiciable issue of law. Intervenors assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to initially explain its reduced reimbursement to Intervenors with one of the codes authorized in Florida Administrative Code Rule 69L-7.602(5)(n) as an explanation of bill review (EOBR). None of the EOBR codes, however, contemplates a new interpretation of the statutory phrase "usual and customary" charges. Intervenors further assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to respond to discovery. However, responses to discovery would not have further elucidated Petitioner's rule-challenge. Petitioner stated eight times in each Petition for Administrative Hearing that Florida Administrative Code Rule 69L-7.501, the DFS rule incorporating the Manual by reference: [S]hould be read to allow recovery of 75% of the usual and customary fee prevailing in the community, and not 75% of whatever fee an individual provider elects to charge. Respondent and Intervenors were fully aware of the absence of statutory and judicial authority to resolve the issue. Petitioner did raise at least one factual issue in each Petition for Administrative Hearing. Petitioner alleged that Respondent's decision letters ordering Petitioner to pay additional reimbursement amounts had no legal effect because Respondent acted before each provider requested and received the carrier's reconsidered reimbursement decision. The absence of a formal hearing in the underlying proceeding foreclosed an evidential basis for a determination of whether each provider in fact requested and received a reconsidered reimbursement decision before the date Respondent ordered Petitioner to pay additional reimbursements. In this fee dispute, Petitioner presented some evidence to support the factual allegation and thereby established the presence of a justiciable issue of fact. It is not necessary for Petitioner to present enough evidence to show that Petitioner would have prevailed on that factual issue in the underlying proceeding. If the letters of determination issued by Respondent were without legal effect, Petitioner would not have waived its objections to further reimbursement within the meaning of Subsection 440.13(7)(b), Florida Statutes (2005). A determination that Petitioner did, or did not, submit the required information is unnecessary in this proceeding. During the formal hearing in this proceeding, Petitioner called an expert employed by a company identified in the record as Qmedtrix. The testimony showed a factual basis for the initial reimbursement paid by Petitioner. It is not necessary for Petitioner to show that this evidence was sufficient to prevail on the merits in the underlying case. The evidence is sufficient to establish justiciable issues of fact in the underlying case. In this proceeding, Petitioner submitted some evidence of justiciable issues of fact in the underlying proceeding. Petitioner need not submit enough evidence in this fee dispute to show Petitioner would have prevailed on these factual issues in the underlying proceeding. Intervenors are not entitled to a presumption that Petitioner participated in this proceeding for an improper purpose in accordance with Subsection 120.595(1)(c), Florida Statutes (2003). Although Petitioner was the non-prevailing party in two previous administrative hearings involving the same legal issue, the two proceedings were not against the same prevailing hospital provider and did not involve the same "project" as required in the relevant statute. Intervenors seek attorney fees in the amount of $36,960 and costs in the amount of $2,335.37 through the date that Petitioner voluntarily dismissed the underlying proceeding. Absent a finding that Petitioner participated in the underlying proceeding for an improper purpose, it is unnecessary to address the amount and reasonableness of the attorney fees and costs sought by Intervenors. If it were determined that Petitioner participated in the underlying proceeding for an improper purpose, the trier of fact cannot make a finding that the proposed attorney fees and costs are reasonable. Such a finding is not supported by competent and substantial evidence. The total attorney fees and costs billed in the underlying proceeding were charged by six or seven attorneys or paralegals employed by the billing law firm. However, the fees and costs at issue in this proceeding exclude any time and costs charged by paralegals and include only a portion of the total fees and costs charged by the attorneys. The total amount of time billed and costs incurred in the underlying proceeding is evidenced in business records identified in the record as Intervenors' Exhibits 20-23. However, those exhibits do not evidence the reasonableness of the fees and costs billed by the attorneys.10 Either the testimony of the billing attorneys or the actual time slips may have been sufficient to support a finding that the attorney fees and costs are reasonable. However, Intervenors pretermitted both means of proof. Intervenors asserted that the time slips contain information protected by the attorney-client privilege. However, Intervenors neither submitted redacted time slips nor offered the actual time slips for in-camera review. Nor did Intervenors allow the attorneys to testify concerning unprivileged matters. The absence of both the testimony of the attorneys and the time slips is fatal. The fact-finder has insufficient evidence to assess the reasonableness of the fees and costs, based on the novelty and difficulty of the questions involved. Intervenors' expert opined that the attorney fees and costs are reasonable. The expert based her opinion, in relevant part, on her review of the actual time slips maintained by each attorney. However, Petitioner was unable to review the time slips before cross-examining the expert. In lieu of the actual time slips, Intervenors submitted a summary of the nature of the time spent by each attorney. The summary is identified in the record as Intervenors' Exhibit 2. Petitioner objected to Intervenors' Exhibit 2, in relevant part, on the ground that it is hearsay. The ALJ reserved ruling on the objection and invited each side to brief the issue in its respective PRO. The paucity of relevant citations in the PROs demonstrates that neither side vigorously embraced the ALJ's invitation. Intervenors' Exhibit 2 is hearsay within the meaning of Subsection 90.801(1)(c), Florida Statutes (2005).11 The author of Intervenors' Exhibit 2 summarized the unsworn statements of attorneys from their time slips and submitted those statements to prove the truth of the assertion that the time billed was reasonable. Intervenors made neither the attorneys nor their time slips available for cross examination.12 Even if the summary were admissible, the summary and the testimony of its author are insufficient to show the attorney fees and costs were reasonable. The insufficiency of the summary emerged during cross-examination of its author. The author is the lone attorney from the billing law firm who testified at the hearing. Q. What other information did you look at to decide what time to actually bill . . .? A. The information I used was the information from the actual bill. Q. If we look at the first entry . . . were you the person that conducted that telephone conference? A. No, I wasn't. Transcript (TR) at 510-511. Q. In other words, [the entries] go with the date as opposed to the event [such as a motion to relinquish]? A. That's correct. Q. So if I wanted to know how much time it took you to actually work on the motion to relinquish, I would have to look at each entry and add up all the hours to find out how long it took you to do one motion. Is that how I would do that? A. It would be difficult to isolate that information from this record, we bill and explain in the narrative what work is performed each day, and unless that was the single thing worked on for several days, there would be no way to isolate the time, because we don't bill sort of by motion or topic. . . . Q. Well, if I'm trying to decide whether the time billed is reasonable, wouldn't I need to know how much time was spent on each task? A. I'm not sure how you would want to approach that. . . . Looking at this document, it does not give you that detail. It doesn't provide that breakout of information. Q. Is there a way for us to know who you spoke with on those entries? A. The entry . . . doesn't specify who participated in the conference. I don't recall what the conference entailed . . . . And many of these entries are from months ago, and I can't specifically recall on that date if I was involved in a conference and who else might have been there. . . . And so my guess is where the conference is listed on a day when lots of activity was performed on behalf of the client, most of it in this case was research. TR at 516-521.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the motion for attorney fees and costs. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 27th day of April, 2006.
Findings Of Fact Petitioner, Richard Shambo, is the legal guardian for Linda Shambo. Linda Shambo is a "client" as defined in Section 402.33(1)(b), Florida Statutes, and has been assessed a fee in the amount of $286.00 per month by the Department. Such fee is paid by the Petitioner as the client's guardian. Petitioner manages the client's financial resources. The client resides in a group home, an intensive care level 3 facility, for which the monthly charge is $633.00. No dispute was made as to the appropriateness of that charge. The fee which has been assessed in this case is equal to the monthly charge less the client's reimbursements from other sources (e.g. Social Security benefits). The Department's Fee Collection Review Committee met on January 8, 1993 to review the fee assessed for this client. Such committee denied Petitioner's request for a reduction in fee and advised him of his right to an administrative review of that decision. The client's income over the last few years has declined due to lower interest rates. According to Petitioner, if the assessed fee is not reduced from $286 to $250 per month, the client will have insufficient income to cover the assessment. As a result, the client's principal will be reduced to cover the difference. Such testimony has been deemed credible and has not been challenged by the Department. No argument as to the appropriateness of other expenditures made on behalf of this client has been raised. Accordingly, it is found that the client's income less such appropriate expenses is insufficient to yield a disposable income sufficient to cover the fee assessed by the Department.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order granting Petitioner's request for a reduced fee. DONE AND RECOMMENDED this 29th day of March, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4617 Neither party submitted a proposed recommended order. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard E. Shambo 125 Cooper Drive Santee, South Carolina 29142 Karen M. Miller District Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401
The Issue The issue to be determined in this case is the amount of appellate attorney's fees to be awarded and paid to Respondent by Petitioner.
Findings Of Fact Based on the evidence presented, the following findings of fact and conclusions of law are made: The dispute taken on appeal to the Third DCA in Case No. 3D17-0149 concerned the undersigned's Final Order on Petitioner's Motion for Attorney's Fees dated December 20, 2016.1/ In that Final Order, the crux of the ruling denying the request for fees was that in the administrative case, there had been no prevailing party; that the wording of section 255.0516, Florida Statutes, contemplates that costs and attorney's fees may be recovered only after a final administrative hearing is held (no final hearing had been held); and that the separate agreement between the parties did not provide a basis for an award of fees. The Final Order denying the award of attorney's fees to Nader was appealed and upheld by the Third DCA in a per curiam affirmed Opinion dated March 21, 2018. Respondent was also awarded its appellate fees in a separate Opinion issued the same day. That matter was referred to the undersigned for a determination. Respondent is requesting that this tribunal award it payment of $120,539.70 as appellate attorney's fees resulting from approximately 303.75 hours of time. In doing so, it relies upon several invoices submitted by its counsel regarding the legal work performed on the appeal. See Resp. Exs. 3-17 and Ex. A of Resp. Ex. 20. Those invoices reflect that the following attorneys and paralegals worked on the appeal for Respondent at the listed rate(s): Albert E. Dotson, Jr. ($740 to 750.00/hour) Eileen Ball Mehta ($685 to 695.00/hour) Jose M. Ferrer ($595.00/hour) Melissa Pallett-Vasquez ($565.00/hour) Eric Singer ($480 to 510.00/hour) Leah Aaronson ($315.00/hour) Elise Holtzman ($290 to 295.00/hour) Maria Ossorio ($295.00/hour) Jessica Kramer ($290.00/hour) Maria Tucci ($275.00/hour) In deciding the amount of attorney's fees to be awarded, a court must consider not only the reasonableness of the fees charged, but also the appropriateness of the number of hours counsel engaged in performing their services. Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and Mercy Hosp. Inc., v. Johnson, 431 So. 2d 687 (Fla. 3d DCA 1983). Respondent has the burden to prove, by a preponderance of the evidence, that the amount of attorney's fees it has requested is reasonable. Rowe, 472 So. 2d at 1145; see also § 120.57(1)(j), Fla. Stat. (2015). In Rowe, it was determined that the criteria listed in Rule 4-1.5 of the Rules Regulating The Florida Bar should be used to calculate the amount of reasonable attorney's fees. Rowe, 472 So. 2d at 1151. The undersigned has considered all the relevant factors outlined in Rule 4-1.5 and Rowe. Several of the factors and related findings are highlighted below. Rule 4-1.5(b)(1)(A) In determining whether a requested fee award is reasonable, one factor to be considered is "the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly." The issue on appeal to the Third DCA was limited primarily to an analysis and determination of a "prevailing party" fee award. Notably, this issue was addressed, briefed, and argued by these parties before the undersigned in the underlying administrative proceeding. Many of the arguments set forth by Respondent in the appellate proceedings, which is the subject of this remand Order, were duplicative and, as mentioned, had been briefed, argued, and utilized in prior filings in the underlying administrative proceedings. Respondent contends that "new theories of liability" were introduced in Petitioner's Initial Brief. However, this argument is not persuasive. The evidence presented at the hearing also does not support Respondent's claim that all the labor and services of the aforementioned attorneys was required. A good deal of their work was duplicative in nature, redundant, and not necessary in order to perform the legal services properly. In short, some of the time billed was excessive. Petitioner's expert, Attorney Robert Klein, testified that he reviewed the Bilzin Sumberg firm's invoices for legal services, reviewed a considerable number of pleadings from the administrative proceedings, and reviewed nearly the entire collection of pleadings in the appellate case.2/ Klein testified convincingly, and the undersigned credits, that based on his global review of the Bilzin Sumberg invoices: (1) the fees charged "were far beyond what they should have been"; (2) he discovered a "tremendous duplication of effort"; and (3) "the overwhelming majority of the arguments" raised on appeal had already been raised in the administrative proceedings. In describing the firm's preparation time for oral arguments, he opined that the time billed was "really high." In short, Klein's expert testimony, while stated in general or more abstract terms, properly supplemented by the undersigned's own review of the invoices and the Exhibit A summary of Respondent's Exhibit 20, supports a considerable reduction in the fees charged. As a legal back drop to the distinctive issues in this case, an analysis regarding the reasonableness of an attorney's posted time is helpful. In Donald S. Zuckerman, P.A. v. Alex Hofrichter, P.A., 676 So. 2d 41, 43 (Fla. 3d DCA 1996), the court held that a party has the right to hire as many attorneys as it desires, but the opposing party is not required to compensate for overlapping efforts, should they result. In Brevard County v. Canaveral Properties, Inc., 696 So. 2d 1244 (Fla. 5th DCA 1997), the Fifth District Court of Appeal panel held that: The polestar of an appellate attorney fee award pursuant to section 73.131 and the case law generally, is that it must be reasonable. One that is bloated because of excessive time spent, or unnecessary services rendered, or duplicate tasks performed by multiple attorneys, does not meet that criterion of reasonableness. The Fifth District Court of Appeal reminded the parties, "[i]n making an attorney fee award, the court must consider the possibility of duplicate effort arising from multiple attorneys, in determining a proper fee award. Fees should be adjusted and hours reduced or eliminated to reflect duplications of services." Id. In determining the hours, the undersigned must also look at the amount of time that would ordinarily be spent to resolve the particular type of issues, which is not necessarily the time actually spent by counsel in the case. It is settled that a court is not required to simply accept the hours stated by counsel. In re Estate of Platt, 586 So. 2d 328, 333-34 (Fla. 1991). Finally, in Baratta v. Valley Oak Homeowners' Association at the Vineyards, Inc., 928 So. 2d 495 (Fla. 2d DCA 2006), the court outlined that as a general rule, duplicative time charged by multiple attorneys working on the case is usually not compensable. In this case, a considerable portion of Respondent's appellate arguments, case law, drafting time, and associated research was similar, if not identical to, the arguments, case law, and documents filed with this tribunal prior to the initiation of the appeal.3/ Moreover, Respondent's expert witness, Dagmar Llaudy, acknowledged that a fair amount of duplication occurred. She testified, for instance, that "the answer brief and everything else they [Miami–Dade College] did, it used the same case law and it used the same arguments. So it was very difficult to separate work done for a 57.105 and then work done for the remainder of the case because they all touched on the same issues." Tr. p. 134, Line 22-25, and p. 135, Line 1-2. This statement by Respondent's expert witness is telling, and explains a good deal of the legal work for which fees are being sought. The undersigned concludes that when legal work done for one aspect of a case closely resembles, or is similar to, legal work performed for another phase of the case and is used again, the party is normally not entitled to recover all of its fees for this repetitious work. Perhaps the most compelling support for reducing the requested award in this case can be found in the reasoning outlined by the magistrate judge in Alvarez Perez v. Sanford- Orlando Kennel Club, Inc., 2009 U.S. Dist. LEXIS 71823 (M.D. Fla. 2009). In that case, the applicant was awarded and sought a determination of fees incurred on appeal. The defendants objected to almost half of the requested award complaining that much of the time requested was for the same issues that had been fully briefed at the trial court level. The magistrate judge agreed with the defendants and reduced the requested fee by more than one-half, from $68,510.00 to $33,080.00. In doing so, she pointed out and aptly concluded: Because most of the work had already been done prior to the appeal, the total number of hours expended by Pantas during the appeal was excessive and unreasonable. See, e.g., Hoover v. Bank of Amer., Corp., No. 8:02-CV- 478-T-23TBM, 2006 U.S. Dist. LEXIS 59825, 2006 WL 2465398 (M.D. Fla. Aug. 24, 2006) [*12](concluding that the total number of hours sought by counsel for the appeal was excessive "in light of the prior work done on these same issues," and reducing the total hours billed by one-third); Wilson v. Dep't of Children and Families, No. 3:02-cv-357-J- 32TEM, 2007 U.S. Dist. LEXIS 26739, 2007 WL 1100469 (M.D. Fla. Apr. 11, 2007) (concluding that the total number of hours sought by counsel for the appeal was excessive "in light of the prior work done on these same issues," and reducing the hours billed by one-third); Action Sec. Serv., Inc., v. Amer. Online, Inc., No. 6:03-cv-1170-Orl-22DAB, 2007 U.S. Dist. LEXIS 4668, 2007 WL 191308 (M.D. Fla. Jan. 23, 2007) (concluding that the hours claimed by counsel for the appeal were excessive, and reducing the amount of fees by more than half, from $37,889.50 to $18,000.00). The undersigned likewise finds and concludes that there was a significant amount of billing for identical and similar research, drafting, and appeal preparation, which had already been performed at the administrative proceeding level. Consequently, the undersigned will make the appropriate reduction to the amount(s) allowed. Rule 4-1.5(b)(1)(B) In determining whether a requested fee is reasonable, one factor to be considered is "the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer." There was no compelling evidence provided by Respondent regarding this factor. Respondent's counsel did not provide any tangible examples of particular employment which was rejected or passed upon due to the ongoing representation of Respondent. As a result, the undersigned finds that there was no persuasive evidence presented regarding this criterion which supports the fees requested. Rule 4-1.5(b)(1)(C) In determining whether a requested fee is reasonable, another factor to be considered is "the fee, or rate of fee, customarily charged in the locality for legal services of similar nature." In support of their fee claim, Respondent presented Llaudy as their expert witness with regard to this criterion. Llaudy provided a brief, but sufficient, opinion that the rates charged by Respondent's law firm were reasonable and reflected the hourly rate customarily charged in the Miami area at the relevant time. Tr. p. 168, Line 6-12. Petitioner's expert, Klein, did not persuasively or seriously dispute the reasonableness of the rates charged. The undersigned finds that the hourly rates were reasonable and within the range for prevailing rates in the Miami-Dade County legal community. Rule 4-1.5(b)(1)(D) In determining whether a requested fee is reasonable, a fourth factor to be considered is "the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained." The case on appeal was fairly straightforward. It concerned whether "prevailing party" attorney's fees should have been awarded. The question for the Third DCA was: Did the administrative law judge err when he refused to award the Petitioner prevailing party fees after dismissing the underlying administrative bid protest case? The record demonstrates that the issue on appeal was not overwhelmingly complicated or intricate. When evaluating this factor, the undersigned also considered that Respondent achieved a good result and considered whether Respondent's reasonable attorney's fees should include work and services its counsel conducted in connection with an appellate motion filed pursuant to section 57.105, Florida Statutes. Petitioner argues that the time spent on the motion for sanctions should be entirely discounted because Respondent was "unsuccessful" on this claim, citing Baratta, 928 So. 2d at 495 ("Attorneys' fees should not usually be awarded for claims on which the moving party was unsuccessful."). Although the undersigned does not agree with this argument by Petitioner, the undersigned finds that the time spent on the motion for sanctions by Respondent's counsel was excessive. As a result, time was adjusted accordingly. More specifically, the motion sought sanctions and was voluntarily withdrawn after it was filed, but before the merits of the motion was addressed by the Third DCA. For several reasons, the undersigned finds that it is proper to award fees for work performed on a motion despite the fact that it was voluntarily withdrawn before it was adjudicated on its merit. First, under these circumstances, it was not proven that Respondent was "unsuccessful" on this claim.4/ Although the motion for sanctions was never heard on the merits, it did result, indisputably, in Petitioner's prior counsel withdrawing from the appellate proceedings. As such, the undersigned cannot conclude that Respondent was "unsuccessful" on this claim. Rather, it simply withdrew a motion after gaining some success and some of the relief it sought. Rule 4-1.5(b)(1)(E) In determining whether a requested fee is reasonable, another factor to be considered is "the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional time demands or requests of the attorney by the client." There was no persuasive evidence presented by Respondent regarding this factor, and it does not materially bear upon the award of reasonable attorney's fees in this case. Rule 4-1.5(b)(1)(F) In determining whether a requested fee is reasonable, one factor to be considered is "the nature and length of the professional relationship with the client." There was some evidence presented by Respondent regarding the nature of the professional relationship between the attorneys and Respondent. This included a 10-percent professional discount provided to Respondent, which was taken into account and already credited in the total $120,539.70 requested. There was no compelling evidence regarding the length of the relationship. Therefore, while this criterion was considered when determining a reasonable fee, it did not have a significant bearing on the fee being awarded. Rule 4-1.5(b)(1)(G) In determining whether a requested fee is reasonable, one factor to be considered is the "experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of the effort reflected in the actual providing of such service." Llaudy and Klein both expressed some general knowledge of the attorneys involved, and their reputation and levels of expertise. There was also some limited testimony from Albert E. Dotson, Jr., on this topic. All of this was taken into account both with respect to the rates charged and the hours spent on the case. Rule 4-1.5(b)(1)(H) In determining whether a requested fee is reasonable, a final factor to be considered is "whether the fee is fixed or contingent, and, if fixed as to amount or rate, whether the client's ability to pay rested to any significant degree on the outcome of the representation." In this matter, the hourly rates were fixed and the amount of the fee did not rest on the outcome of the appeal. Ultimate Findings and Conclusions The undersigned finds that the rates charged by the Bilzin Sumberg firm for the attorneys involved in the case were reasonable. However, the undersigned finds that the number of hours expended by the Bilzin Sumberg firm on this matter exceeded the number reasonably necessary to provide the services. Based on the evidence presented and exercising the discretion the undersigned is afforded in a hearing of this nature, the undersigned finds that the reasonable hourly rates and reasonable number of hours expended are as follows: Attorney Reasonable Hourly Rate Reasonable Hours Expended Lodestar amount Albert E. Dotson, Jr. $745.00 18.05 $13,447.25 Eileen Ball Mehta $690.00 28.50 $19,665.00 Jose M. Ferrer $595.00 2.3 $1,368.50 Melissa Pallett-Vasquez $565.00 0.80 $452.00 Eric Singer $495.00 38.9 $19,255.50 Leah Aaronsen $315.00 6.1 $1,921.50 Elise Hotlzman $292.50 72.5 $21,206.25 Maria Ossorio $295.00 7.9 $2,330.50 Jessica Kramer $290.00 6.8 $1,972.00 Maria Tucci $275.00 0.4 $110.00 TOTAL AWARDED $81,728.50 The undersigned has also considered the appropriateness of any reduction or enhancement factors, including the withdrawal of the section 57.105 motion for sanctions. DISPOSITION AND AWARD Based on the forgoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that Respondent's reasonable attorney's fees are determined to be $81,728.50, with recoverable costs in the amount of $461.35 for the total sum of $82,189.85 DONE AND ORDERED this 20th day of November, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2018.
Findings Of Fact During the times herein involved Respondent Kramer and Pankz were registered real estate brokers and Active Firm Member of Respondent, ILB, a registered corporate broker. Registered real estate salesmen were employed to obtain listings and WATS lines installed. Lists of out-of-state purchasers of Florida land were obtained and during the hours of 6 to 10 P.M. salesmen telephoned individuals from these lists provided them by ILB. Each salesman was provided with a script to follow in making his sales pitch. As one witness recalled the substance of the script was "if you felt you could make a profit on your property would you be interested in selling it?" Those indicating interest in selling at a profit were told that ILB was engaged in land sales on a large scale, that world wide investors were interested in acquiring Florida land, that they widely advertised the land that was listed with them in a catalog that went to brokers all over the world, that Florida land had greatly increased in price in recent years, that they would evaluate the owner's land and tell him what ILB thought the land would sell for. They inquired what the owner had paid for his land and obtained enough of the description to ascertain the size of the plot. For those interested in selling, a package was sent containing newspaper clippings about foreign investors being interested in Florida land, an "Important Facts" sheet containing much of the information passed to the owner on the first telephone call, a list indicating publications and newspapers in which ILB advertises, photocopies of what purports to be inquiries received from around the world as a result of ILB's advertising, and a copy of a Listing and Brokerage agreement. When the owner was again called about a week after the first call he was quoted a price for his property, nearly double what he had paid for it, and advised if he would list the property with ILB every effort would be made to quickly obtain a buyer. It was explained that because of the expense of advertising it was necessary for the owner to pay listing fee, which was fully refundable out of the 10 percent selling commission that ILB would earn when the property was sold. The advance listing fee which the owner forwarded when he executed the listing and brokerage agreement varied between $250 and $350. The listing agreement provided, inter alia, that owner "understand(s) that this agreement does guarantee the sale of my property but that it does guarantee that you will make an earnest effort pursuant to the aforementioned provisions." Out of this listing fee the salesman was paid approximately 1/3. No arrangement was made between ILB and the salesman regarding any additional commission to the salesman if the property was sold. No effort was made by the listing salesman to sell any property listed, although one witness testified that she did ask some of those she called if they wanted to purchase property. No evidence was presented that any of the property for which listing fees were received was sold by ILB. Several of the witnesses had been told by Respondents that sales had been made, but no corroboration of this hearsay was ever presented. The Respondent brokers Kramer and Pankz refused to answer any questions regarding the operation of the corporate broker ILB on grounds that such answers might tend to incriminate them. Accordingly no substantive evidence was presented that any sales or efforts to sell the properties listed was made prior to December, 1975. Exhibit 29, the Consent Order between the Division of Consumer Affairs and ILB, corporate officers and salesmen of ILB, was entered on July 2, 1976. The Complaint in that proceeding, was the basis for Respondent's collateral estoppel argument to dismiss the instant proceeding, was filed April 10, 1976, following extensive investigation of ILB. This is pointed out solely to accentuate the fact that practically all of the documents in Exhibit 27 and 28, which were offered into evidence by Respondents to show that they were making bona fide efforts to sell the properties listed, were prepared subsequent to the commencement of the investigation of ILB. Exhibits 8, 9, and 10 were admitted into evidence, were published by Respondent but no substantive evidence was presented that these listings are "advertisements" of the properties for which Respondent received a listing fee or that they were distributed to anyone other than those making inquiries about property. In the forwarding letter printed on the inside of the front cover of these exhibits the selling brokers were offered a 7 percent commission of any cash sales they arranged. As noted above, the total commission in the Listing and Brokerage agreement was 10 percent. The information contained in these catalogs was not legally sufficient to locate the properties therein listed. Many of the land development companies which originally sold the properties which Respondents herein were soliciting listing commissions, head many unsold lots in these developments which they were offering for sale at prices less than one-half the prices Respondent had advised the owners the property would bring. Independent brokers in some of the areas involved, i.e. Lee, Collier, and Hendry counties testified that many of the lots in these developments were for resale at one-half the prices being asked by the developers. Exhibit 22, the Federal Corporate Income Tax Return for ILB for 1974 shows Respondent Kramer owned all of the stock of ILB during that taxable year and that $12.00 was spent on advertising. Exhibit 23, the Corporate Federal Income Tax Return for ILB for 1975 shows that $348,305.68 in gross receipts and deductions of $344,976.96, but no schedule of such deductions was attached. No evidence was presented regarding advertising expenses for taxable year 1975.
