BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

 

In re STEVEN B. FEREN,)

††††††††††††††††††††††† )

†††† Respondent.††††††† )†††† †††††††††††††††††††††††††††† Complaint No. 91-45

††††††††††††††††††††††† )†††† †††††††††††††††††††††††††††† DOAH Case No. 95-6181FE

††††††††††††††††††††††† )†††

††††††††††††††††††††††† )†††† †††††††††††††††††††††††††††† Final Order No. COE 96-09

________________________)

 

 

FINAL ORDER AWARDING APPELLATE ATTORNEYS FEES

 

 


†† This matter comes before the Commission on the Recommended Order of the Division of Administrative Hearings Hearing Officer rendered on May 29,1996 (a copy of which is attached and incorporated herein by reference), in which she recommends that the Commission enter a final order awarding Steven B. Feren and the City of Sunrise $18,789.70 for reasonable attorneyís fees and costs.In the Recommended Order, which was mailed by DOAH to the Respondent and to Mr. Colon on May 29, 1996, both parties were advised of their right to submit exceptions to the order.In her May 31, 1996 letter, attached to which was another copy of the Hearing Officerís Recommended Order, the Commissionís Complaint Coordinator again advised the parties of their right to file exceptions to the Recommended Order by June 18, 1996. Mr. Feren did not file any exceptions.Mr. Colon filed his exceptions on August 22, 1996.Furthermore, neither party filed a transcript of the hearing held before the DOAH Hearing Officer on May 17, 1996.However, Mr. Colon filed a Motion for Dismissal and a Motion for Summary Judgment which will be addressed below and Mr. Feren filed a Motion to Strike Colonís Exceptions to Recommended Order.

Because Mr. Colonís exceptions were not timely filed and because Mr. Colon did not offer any explanation for their late filing, the Commission will not consider them.Consequently, there is no need for the Commission to rule on Mr. Ferenís motion to strike Mr. Colonís exceptions.

Having reviewed the Recommended Order and Mr. Colonís Motion for Dismissal and Summary Judgment, the Commission makes the following findings, conclusions, rulings, and determinations:

 

STANDARDS FOR REVIEW

Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order.However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached."DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).


The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer.Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.

 

RULING ON MR. COLONíS MOTION FOR DISMISSAL AND

MOTION FOR SUMMARY JUDGMENT

 

Mr. Colonís Motion for Dismissal dated June 7, 1996 and filed with the Commission on June 12, 1996 and his Motion for Summary Judgment dated July 18, 1996 and filed with the Commission on July 22, 1996, raise the same issues that he previously raised in his Motion for Rehearing dated December 19, 1995 and his Motion for Reconsideration dated January 30, 1996, which both were denied by the Commission respectively on January 25, 1996 and February 15, 1996.Mr. Colonís motions essentially are collateral attacks on the final order entered by this Commission, which has been affirmed on appeal by the District Court of Appeal for the Fourth District and for which a mandate already has issued.Mr. Colonís petitions for certiorari to the Florida Supreme Court and to the United States Supreme Court also have been denied.


Because there must be some finality to our proceedings once the issues have been litigated and/or an opportunity has been afforded to the parties to litigate the issues and to appeal our final order, when the Court of Appealsí mandate has issued concerning our order it no longer is subject to further attack.Consequently, the only issue that is before us in these proceedings and the only jurisdiction that we have is that which was remanded to us by the Court of Appeals for the Fourth District, that is, the jurisdiction to determine the amount of appellate attorney fees which should be awarded Petitioners Feren and the City of Sunrise.

Accordingly, Respondent Colonís Motion For Dismissal and Motion for Summary Judgment are denied.

FINDINGS OF FACT

It has been held that the burden of furnishing a transcript is on the party seeking review and, if the party does not, exceptions to findings of fact can be dismissed solely on that basis.See, e.g., Rabren v. Department of Professional Regulation, 568 So. 2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987); and Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So. 2d 750 (Fla. 1st DCA 1982).The Commission also has previously adopted this position.In re George Costage, 15 F.A.L.R. 1201, 1202 (Commission on Ethics Final Order entered December 8, 1992).Moreover, the Commission has adopted Rule 34-5.023(3), F.A.C., which provides as follows:


 

It is the burden of the person filing the exception to insure that the entire record has been received by the Commission at least three weeks prior to the date of the Commission's final hearing.

 

 

Thus, in addition to the fact that neither party timely filed exceptions to the Hearing Officerís findings, they also failed to provide the entire record of the proceedings before the Division of Administrative Hearings to the Commission for its review. Accordingly, the Commission has no authority to modify the Hearing Officerís findings and the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

 

CONCLUSIONS OF LAW

1.For the same reasons noted above, the Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

 

2.Accordingly, the Commission on Ethics concludes that the reasonable amount of fees for legal services from the Michelson law firm incurred and to be incurred by Mr. Feren and the City of Sunrise is $16,330.50. The reasonable amount of fees for Petitionersí expert witness is $1,562.50.And the reasonable amount of costs incurred by the Petitioners in this proceeding is $896.70.


WHEREFORE, pursuant to the mandate of the District Court of Appeal for the Fourth District, the Commission on Ethics determines that the Complainant, Bill Colon, is liable to the Respondent, Steven B. Feren and to the City of Sunrise, for appellate attorney's fees and costs in the total amount of $18,789.70.

 

†† ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996.

 

 

____________________________

Date Rendered

 

 

_______________________________

Mary Alice Phelan

Chair


THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

 

 

 

 

cc:Mr. Bill Colon, Complainant/Respondent

†††† Mr. Stuart R. Michelson, Attorney for Respondent/Petitioner

†††† Honorable Susan B. Kirkland, Hearing Officer

†††† Division of Administrative Hearings