Findings Of Fact The Findings of Fact set forth in the Final Order entered in DOAH Case Nos. 15-7010 through 15-7016 and 15-7022 are hereby adopted in this Final Order. The PFO is hereby adopted and incorporated in this Final Order as though set forth in full. During the course of the rulemaking proceedings regarding “designated player” card games, Petitioners submitted a good-faith proposal for a lower cost regulatory alternative (LCRA) indicating that the proposed rules would have a significant monetary impact on Petitioners, which required Respondent to prepare a statement of estimated regulatory costs (SERC) pursuant to sections 120.54(3)(b) and 120.541, Florida Statutes. Respondent did not prepare a SERC. That failure was determined to be a material failure to follow applicable rulemaking procedures and became a basis for the invalidation of the proposed rules.
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.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing filed in each of these cases by LEAF and Suzi Ruhl. RECOMMENDED this 1st day of November, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: David A. Ludder, Esquire Legal Environmental Assistance Foundation, Inc. 1115 North Gadsden Street Tallahassee, Florida 32303 Cynthia K. Christen, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Anthony Cleveland, Esquire Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole Post Office Box 6507 Tallahassee, Florida 32314-6507 Virginia B. Wetherall, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue to be determined is the amount of reasonable attorney's fees and costs incurred by Citrus Mining and Timber, Inc. ("CMT") in Robert A. Schweickert, Jr. v. Department of Community Affairs and Citrus Mining and Timber, Inc., Case. No. 1D10-3882 (Fla. 1st DCA 2011).
Findings Of Fact Appellate Attorney's Fees Sarah Lahlou-Amine of the law firm of Fowler White Boggs, P.A. ("Fowler") was the attorney with primary responsibility for research and drafting documents for the appeal on behalf of CMT. She prepared and filed a notice of appearance, a motion to dismiss, a motion for attorney's fees, an amended motion for attorney's fees, the answer brief, a notice of supplemental authority, a second motion for attorney's fees, and a motion for clarification. Ms. Lahlou-Amine was assisted and supervised by more senior lawyers at Fowler. The total number of hours charged by Fowler was 134.8. The total attorney's fees charged by Fowler was $39,010. Lawyers from two other law firms were employed by CMT and charged attorney's fees and costs for the appeal. The Law Office of Clark Stillwell, P.A., charged 18 hours for a total attorney's fees of $6,030. Edward de la Parte and other lawyers of the law firm of de la Parte & Gilbert, P.A., charged 24.9 hours for total attorney's fees of $5,382.50. The grand total of all the attorney hours expended for the appeal is 177.7 hours and the grand total of all fees charged to CMT for the appeal is $50,422.50. It was the opinion of CMT's expert witness, Daniel Stengle, that all of these hours and fees are reasonable. Schweickert's expert witness, Howard Heims, believes that 25 or 30 hours was all the effort that was reasonable for this appeal. The hourly rates of $225.00 to $435.00 an hour that were used by CMT's attorneys are not contested by Schweickert. The evidence established that the rates are reasonable. The dispute focused on the number of hours expended for the appeal. Heims contends that it was unreasonable for CMT to file a motion to dismiss for lack of standing, because appellate courts rarely grant such a motion and the standing issue could have been saved for CMT's answer brief. The court did not summarily deny CMT's motion to dismiss but, instead, ordered Schweickert to show cause why the motion should not be granted. The issuance of the order to show cause indicates that it is not the court's practice to deny all motions to dismiss that are filed before the briefs. Following Schweickert's response, the court still did not deny the motion to dismiss, but deferred ruling to the panel of judges that would determine the merits of the appeal. It was not unreasonable to file a motion to dismiss in this case because Schweickert's lack of standing was unusually clear. The controlling factual issue was simple--whether Schweickert made timely comments to Citrus County about the proposed comprehensive plan amendment. Furthermore, the argument made in the motion eventually prevailed. Heims also believes that it was unreasonable for CMT to file three motions for attorney's fees and costs. The motions were not identical, but filing three such motions is unusual and was not shown to be necessary or important. It was not persuasively shown that 177.7 attorney hours was reasonable for this appeal. The evidence does not establish that the attorney's fees charged by the law firms of Clark Stillwell and de la Parte & Gilbert should be included as part of the reasonable fees for the appeal. These fees were not shown to be necessary or to contribute materially to the appeal. Rule 4-1.5 of the Rules Regulating the Florida Bar, Code of Professional Conduct, sets forth factors to be considered in determining a reasonable attorney's fee. The factors listed in rule 4-1.5(b)(1) are addressed below, in sequence: 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 time and labor expended on the appeal was not shown to be reasonable. The questions involved were not difficult. The case was not complex. No unusual skills and expertise were required to perform the legal services. the likelihood that the acceptance of the particular employment would preclude other employment by the lawyer; CMT did not contend that this factor was applicable. the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; Reasonable hourly rates were charged, but persuasive evidence was not presented to show that the total amount of the fees charged to CMT are customary for the services that were performed. the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; Although a reversal of the Department's Final Order would have had adverse consequences for CMT, it was not shown that the situation was of an unusual nature. Furthermore, a reversal on the merits (to find the comprehensive plan amendment not in compliance) was almost impossible because no factual findings were made that supported Schweickert's claims. CMT points to the unusual result--attorney's fees awarded against a pro se litigant--as justifying the attorney's fee, but this unusual result is due to Schweickert's unusually weak case. The issues and the law applied were not unusual. the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; CMT's argument that time limitations of an usual nature existed in this matter was not persuasive. the nature and length of the professional relationship with the client; The applicability of this factor was not argued by CMT and was not demonstrated by the evidence. the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and The lawyers involved have good reputations and experience, but those attributes were not likely to have materially affected the outcome. Performing the legal services did not require unusual skills. The services were not efficiently provided. whether the fee is fixed or contingent, and if fixed as to amount and rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation. This factor was not shown to be a basis to support a larger fee. It was Heims' opinion that 25 to 30 hours was a reasonable number of attorney hours to prepare the answer brief and one motion for attorney's fees. Thirty hours was a sufficient number of hours for the research and drafting work done by Ms. Lahlou-Anime. However, because it has been determined that the filing of the motion to dismiss was reasonable, some additional time should be added. CMT Exhibit 1 indicates that Ms. Lahlou-Anime charged about 23 hours for her work on the motion to dismiss. However, in determining a reasonable number of hours for the work on the motion to dismiss, consideration must be given to the fact that the standing arguments made in the motion were repeated in CMT's answer brief, which has already been accounted for in the 30 hours. The parties did not address this specific issue. However, the evidence supports the addition of 10 hours for Ms. Lahlou-Anime, for a total of 40 hours. Forty hours for Ms. Lahlou-Anime at her rate of $260 per hour equals $10,400. Heims also failed to fairly account for the reasonableness of the attorney hours expended by Karen Brodeen, a senior attorney at Fowler who represented CMT in the lower administrative proceedings and who assisted Ms. Lahlou-Anime in the preparation of the motion to dismiss and answer brief. CMT Exhibit 1 shows that Ms. Brodeen charged 0.9 hours at $375 per hour and 16.9 hours at $385 per hour, for a total fee of $6,844. The grand total of reasonable attorney time is 57.8 hours and the total reasonable attorney's fee is $17,244. Appellate Costs CMT is seeking $3,250.95 in costs for the appellate proceeding, comprised of $3,156.41 in costs charged by Fowler and $94.54 charged by de la Parte & Gilbert. However, as discussed in the Conclusions of Law, the costs which CMT seeks to recover --routine office expenses--are not recoverable legal costs under the applicable statutes. Prejudgment Interest CMT seeks daily prejudgment interest at the rate of 0.01644 percent. Requested Sanctions in the DOAH Remand Proceeding CMT also seeks to recover its attorney's fees and costs incurred following the remand from the Court of Appeal to DOAH to determine the amount of appellate attorney's fees and costs, as a sanction for alleged misconduct by Schweickert. CMT seeks a sanction against Schweickert for his failure to appear at a scheduled deposition for which Schweickert had been subpoenaed. Schweickert was not represented by an attorney at the time. Schweickert told CMT's attorneys that he was not going to appear at the deposition, but CMT's attorneys went forward as planned. Schweickert did not appear for his deposition. CMT seeks to recover its attorney's fees charged by de la Parte & Gilbert that are related to Schweickert's failure to appear for his deposition, which are $17,975.00, and costs of $818.63. CMT also sought a sanction against Schweickert for having to respond to Schweickert's Motion for Cause of Contempt for Citrus Mining and Timber’s Violation of Court Order, which demanded sanctions against CMT for CMT's scheduling of Schweickert's deposition without attempting to contact him to arrange a mutually agreeable date and time. The motion was denied. Schweickert was not represented by an attorney at the time. CMT seeks to recover its attorney's fees charged by de la Parte & Gilbert to respond to the motion, which are $2,357.50, and costs of $21.52. The day before the final hearing, CMT filed a motion for sanctions for Schweickert's failure to provide complete answers to some of CMT's discovery requests. At the time of the final hearing on September 7, 2011, CMT showed a total of $35,570 in attorney's fees associated with the DOAH remand proceeding, and costs of $1,693.73. CMT seeks recovery of those fees and costs as well as subsequent fees and costs through issuance of the Final Order in this remand proceeding, which are estimated to be $22,000 and $10,870, respectively. In summary, CMT seeks to recover $70,133.73 in fees and costs that it was charged by its attorneys for their effort to show that CMT's appellate fees and costs of $53,673.45 were reasonable.
The Issue An administrative complaint filed January 19, 1994, alleges that Respondent, Rafael Feliu, violated various provisions of Chapter 475, F.S. by diverting commission funds to himself, by operating as a broker without a valid broker's license and by collecting money in a real estate brokerage transaction without the consent of his employer. The issue in this case is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Rafael Feliu (Feliu) is now and was at all times material a licensed real estate broker-salesperson in the State of Florida, having been issued license number 0538613 pursuant to Chapter 475, F.S. His most recent license was issued, effective 5/3/93, c/o Century 21 Progressive Realty, Inc., 11301 So. Orange Blossom Trail, Orlando, Florida. Between May 1990 and March 1993, Feliu was engaged as a broker- salesperson with Angel Gonzalez of Century 21 Nuestro Realty Co., in Orlando, Florida. The parties' independent contractor agreement, dated May 29, 1990, provides for a sixty percent sales commission to Feliu. On November 28, 1992, Feliu solicited and obtained a contract for the purchase of vacant land and the construction of a house. The real estate commission was to be paid in installments. The buyer under the contract was a friend of Feliu, Luis Rodriguez. Feliu and Rodriguez made an arrangement that Rodriguez would receive a rebate of the commission. While the broker, Angel Gonzalez, denies that he agreed to the arrangement, he does admit that he saw a break-down of disbursement of the commission provided by Feliu and that he signed a letter, prepared by Feliu, describing that break-down, including the rebate to Rodriguez. The first commission check, in the amount of $8,750.00 is made to Century 21 Nuestro and is dated June 4, 1993. Feliu delivered the check to Angel Gonzalez with a handwritten break-out of disbursement, including a $1000 rebate and a $2500 rebate (one-half the agreed $5000) to Luis Rodriguez. Gonzalez refused to disburse the commission as indicated on the break- out, but rather sent Feliu a check on June 8, 1993, for $4554.30, representing his usual share of the commission. The second installment of the commission was paid approximately ten days later. Feliu went to the contractor responsible for paying the commission and asked him to make the check to him, Rafael Feliu. Thus, the second check in the amount of $8750.00 is dated June 18, 1993 and is made out to Rafael Feliu. By this time Feliu had left Century 21 Nuestro and was working with another company. Feliu cashed the check and made the disbursements to Luis Rodriguez. He also retained his share of the balance along with sums of $449.93 and $128.00 that he claimed Nuestro Realty owed him on other sales. He sent the balance, $274.77, to Angel Gonzalez with a letter describing in detail the disbursement of the $8750.00 and explaining that he, Feliu, handled the disbursement because Gonzalez had not complied with regard to the first half of the commission.
Recommendation Based on the evidence presented and discussed above, it is hereby, RECOMMENDED: That the Florida Real Estate Commission enter its final order dismissing the allegations of violation of section 475.25(1)(b), F.S. (Count I), finding Respondent Rafael Feliu guilty of the remaining counts of the complaint, and issuing a reprimand. DONE AND RECOMMENDED this 18th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0856 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. & 3. Adopted in paragraph 1. Adopted in paragraph 2. & 6. Adopted in paragraph 3. Adopted in paragraphs 5 and 6. Rejected as contrary to the weight of evidence. Adopted in part in paragraph 4; otherwise rejected as unsupported by clear and convincing evidence. Respondent's Proposed Findings Adopted in substance in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 8. Rejected as immaterial. Adopted in substance in paragraph 4. Rejected as contrary to the law (see paragraph 13). - 14. Rejected as unnecessary. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Rafael S. Feliu 2260 Whispering Maple Drive Orlando, Florida 32837 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. 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 5th day of September, 1996.
