In re GORDON SANDS, ) Complaint No. 99-32
) DOAH Case No. 00-0268FE
Respondent. ) Final Order No. COE 01-023
FINAL ORDER AFTER REMAND
This matter was considered by the Commission on Ethics following receipt and consideration of the Recommended Order on Remand issued by the Administrative Law Judge (ALJ) from the Division of Administrative Hearings (DOAH), a copy of which is attached hereto.
On November 21, 2000, the Commission entered an Order of Remand to the Division of Administrative Hearings for a determination of the amount that should be awarded to Petitioner for attorney's fees and costs incurred on the day of the May 2, 2000 administrative hearing and thereafter to bring this matter to a conclusion. That Order ruled on Speas' exceptions and adopted the ALJ's Recommended Order, which established that fees and costs in the amount of $3050 had been incurred up to the date of the administrative hearing. Both the initial Recommended Order and the Commission's Order of Remand are attached hereto and incorporated herein.
An administrative hearing on the limited issue was held on January 25, 2001, by telephone conference call, and a transcript of the proceeding was filed with the ALJ on March 20, 2001. The parties waived their right to file proposed recommended orders. The ALJ's Recommended Order on Remand was transmitted to the Commission and the parties on March 30, 2001, and the parties were notified of their right to file exceptions to the Recommended Order on Remand in accordance with Rule 28-106.217, Florida Administrative Code. Speas' exceptions were timely received on April 16, 2001, and Sands filed a response on April 18, 2001.
STANDARD OF REVIEW
The Administrative Procedures Act--Chapter 120, Florida Statutes--requires agencies to accept the ALJ=s findings of fact and conclusions of law, except under certain limited circumstances.
Section 120.57(1)(l), Florida Statutes (2000), provides the standard of review for findings of fact in the Recommended Order. It provides, in relevant part:
Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
The Commission cannot reweigh the evidence considered by the ALJ. The Commission cannot reject findings of fact made by the ALJ unless there is no competent substantial evidence in the record to support the findings. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); and Bay County School Board v. Bryan, 679 So.2d 1246 (Fla. 1st DCA 1996), construing a provision substantially similar to Section 120.57(1)(l), Florida Statutes (1998 Supp.)
The Commission also has limited authority to reject or modify the ALJ=s conclusions of law. Section 120.57(1)(l), Florida Statutes (2000), provides that:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.
The label assigned to a statement is not dispositive as to whether that statement is a conclusion of law or a finding of fact. Sapp v. Florida State Board of Nursing, 384 So.2d 254 (Fla.2d DCA 1980); Leapley v. Board of Regents, 423 So.2d 431 (Fla 1st DCA 1982); Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). The obligation of the agency to honor the ALJ=s findings of fact may not be avoided by categorizing a contrary finding a Aconclusion of law.@ Goin v. Commission on Ethics, 658 So.2d 1131 (Fla. 1st DCA 1995).
RULINGS ON EXCEPTIONS
1. Speas= first two exceptions are directed at the ALJ's ruling denying Speas' Motion to Re-Open the Case Due to New Evidence. Speas' cites no legal authority for reopening the case but, instead, asserts that there is new evidence that Sands has engaged in conduct similar to that which was the subject of Speas' initial complaint. That evidence, if it even exists, is not material to this proceeding and the ALJ correctly denied Speas' Motion. Therefore, these exceptions are denied.
2. The remainder of Speas' exceptions are directed to the ALJ's findings and conclusions that her complaint against Sands was filed with a malicious intent. These same issues were previously argued in Speas' exceptions to the initial Recommended Order, which we denied in our Order of Remand. In that Order, we denied Speas' exceptions, adopted the ALJ's findings of fact and conclusions of law, and remanded the matter to DOAH for the limited purpose of determining the amount of fees and costs which had been incurred on the day of the first administrative hearing and thereafter to bring the matter to a conclusion. Inasmuch as we have already addressed Speas' exceptions in our earlier Order of Remand, Speas's exceptions are denied.
FINDINGS OF FACT
The Findings of Fact set forth in the initial Recommended Order and the Recommended Order on Remand are approved, adopted, and incorporated herein by reference.
CONCLUSIONS OF LAW
1. The Conclusions of Law set forth in the initial Recommended Order and the Recommended Order on Remand are approved, adopted, and incorporated herein by reference.
2. Accordingly, the Commission finds that the Complainant, Caron Speas, filed an ethics complaint with a reckless disregard for whether the complaint contained false allegations of fact against the Respondent, Gordon Sands, a public officer, with a malicious intent to injure the reputation of Mr. Sands and that Ms. Speas is therefore liable for attorney's fees and costs incurred, as described herein.
WHEREFORE, pursuant to Section 112.317(8), Florida Statutes, the Commission on Ethics determines that the Complainant, Caron Speas, is liable to the Respondent, Gordon Sands, for attorney's fees and costs in the total amount of $8,848.65.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, June 7, 2001.
Howard S. Marks
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, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); 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. Allen C. D. Scott, II, Attorney for Respondent/Petitioner
Mr. Peter Ticktin, Attorney for Complainant/Respondent
Division of Administrative Hearings