BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re STEVEN B. FEREN, )
)
Respondent. )
Complaint No. 91-45
)
DOAH Case No. 92-2458EC
)
)
Final Order No. COE ____
)
_______________________)
FINAL
ORDER AWARDING COSTS AND ATTORNEYS FEES
This matter initially came before the
Commission on Ethics on the Recommended Order rendered in this matter on
February 5, 1993, by the Division of Administrative Hearings' (DOAH) Hearing
Officer, in which he recommended that the Commission enter a Final Order
dismissing the Petition for Attorney's Fees and Costs. After reviewing the Recommended Order, the
exceptions, and the record of the public hearing of the petition, and having
considered the arguments of counsel of the Respondent/Petitioner, Steven B.
Feren, and the arguments of the Complainant/Respondent, Bill Colon, the
Commission concluded in its Order of Remand To the Division of Administrative
Hearings rendered on April 30, 1993 (a copy of which is attached and
incorporated herein by reference) that the Complainant/Respondent, Bill Colon,
filed an ethics complaint which was frivolous and without basis in law and fact
against Respondent/Petitioner, Steven B. Feren, a public officer, with a
malicious intent to injure the reputation of the Respondent/Petitioner. However, because the Commission was unable
to determine the amount of attorney's fees that Mr. Colon is liable to Mr.
Feren for, the Commission remanded the case to DOAH for further evidentiary
proceedings necessary to resolve all factual issues concerning the amount of
reasonable attorney's fees to be awarded consistent with the methodology set
forth in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145
(Fla. 1985), including Mr. Feren's entitlement to attorney's fees incurred for
the administrative hearing and subsequent thereto.
This matter again came before the
Commission on the Recommended Order rendered on June 27, 1994, by the DOAH
Hearing Officer (a copy of which is attached and incorporated herein by
reference) from the remand of this matter.
In this Recommended Order, the Hearing Officer recommends that the
Commission enter a Final Order awarding Mr. Feren $49,949.65 for reasonable fees and costs incurred. Both Mr. Feren and Mr. Colon were granted an
extension of time to September 1, 1994 to file their exceptions to the
Recommended Order and both filed exceptions.
Mr. Colon also filed a Response to Exceptions to Recommended Order by Steven
B. Feren.
Having reviewed the Recommended Order, the
exceptions, the record of the public hearing of this petition, and Mr. Colon's
Response, and having considered the arguments of counsel for Steven B. Feren,
and Bill Colon, the Commission readopts its findings, conclusions, rulings, and
determinations which it made in its Order of Remand rendered on April 30, 1993,
and makes the following additional 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.
Mr. Colon excepts generally to the
Recommended Order and moves that the Recommended Order and presumably the
Petition for Attorney's Fees and Costs be dismissed. He does not except specifically to any of the Hearing Officer's
findings of fact. Mr. Colon essentially
argues as follows:
1. The
proceedings were a sham, a denial of Mr. Colon's civil rights and right to due
process. In addition, in the initial
proceeding, the Hearing Officer exhibited bias against Mr. Colon by stating that Mr. Colon called himself the
"watchdog" of the City.
This exception is rejected. Our review of the record indicates that the
proceedings and the Hearing Officer's conduct of the proceedings complied with
the essential requirements of law. The
purpose of the hearing conducted by the Hearing Officer on April 11, 1994 was
to determine the amount of reasonable attorney's fees and costs, as also is our
purpose in reviewing the Hearing Officer's June 27, 1994 Recommended Order
issued as a result of that hearing, not to review our prior rulings contained
in our Order of Remand. Furthermore,
with respect to Mr. Colon's charge that the Hearing Officer exhibited bias
against him, this same exception previously was made by Mr. Colon and rejected
by this Commission in paragraph 15 of the Order of Remand. It shall not be reviewed again here. Mr. Colon's remedy for his disagreement with
our rulings is judicial review pursuant to Section 120.68, Florida Statutes, of
our Final Order which incorporates the Order of Remand and our rulings therein.
2. Steven
Feren was permitted to greatly increase his costs and hours by adding those
attributable to his mistakes.
Mr. Colon's exception is rejected. The Hearing Officer's recommended Findings
and Conclusions with respect to the reasonable number of hours and costs
expended by Mr. Feren's attorney are supported by substantial competent
evidence of record. As stated by the
Court in Heifetz v. Department of Business Regulation, Division of Alcoholic
Beverages and Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):
It
is the hearing officer's function to consider all the evidence presented,
resolve conflicts, judge credibility of witnesses, draw permissible inferences
from the evidence, and reach ultimate findings of fact based on competent
substantial evidence. State Beverage
Department v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959).
It is not our
function to reweigh the evidence or to rewrite the Hearing Officer's findings
as long as there is competent substantial evidence to support the findings, as
there is here.
Mr. Feren presented the expert testimony of
Mr. Goren, who Mr. Colon stipulated was an expert on the reasonableness of fees
and costs in connection with this proceeding (Tr. p.18). As an expert witness, Mr. Goren testified
about the reasonableness of the hours expended in these proceedings by Mr.
Feren's attorney (Tr. p.26 et seq.) and his testimony was accepted by the
Hearing Officer. There was no competent
substantial evidence presented indicating that any of the hours or costs
expended by Mr. Feren's attorney were attributable to his mistakes.
3. Review
of the record indicates that the alleged work done by Mr. Feren's attorney,
which he is attempting to collect fees for, could have been performed by a
first year law student or a paralegal.
The expert's testimony indicating that this proceeding required
"expertise beyond the normal duties of an attorney" is ludicrous, as
is Mr. Feren's attorney's testimony that he was required to do extensive
research.
As there is competent substantial evidence
of record to support the Hearing Officer's findings regarding the
reasonableness of the hours expended and fees charged, Mr. Colon's exception is
rejected.
4. The
"machinations" of Mr. Feren and his attorney indicate a pattern of
behavior intended to punish Mr. Colon solely because he had the
"temerity" to file a complaint.
Mr. Feren's attorney demonstrated his animosity towards Mr. Colon
through his threats of lawsuits.
Mr. Colon's exception is rejected. We partially addressed this same exception
in paragraphs 6 and 7 of the Order of Remand.
Our decision shall not be reviewed here. Additionally, contrary to Mr. Colon's contention, the Petition
for Fees and Costs was not filed merely because Mr. Colon had the
"temerity" to file a complaint; we concluded that it was filed
because he filed an ethics complaint which was frivolous and without basis in
law and fact against Mr. Feren, a public officer, with a malicious intent to
injure the reputation of Mr. Feren. See
Order of Remand, Conclusions of Law, paragraph 2. Whether Mr. Feren's attorney exhibits "some kind of
animosity" against Mr. Colon is irrelevant in the context of these
proceedings. These proceedings were
held in compliance with the essential requirements of law.
5. Mr.
Colon was denied due process and his "constitutional[ly] protected rights
were ignored."
Mr. Colon's exception is rejected. From our complete review of the record of
these proceedings, we conclude that these proceedings were conducted in
compliance with the essential requirements of law.
6. Mr.
Feren's attorney's conduct in these proceedings was contrary to the standards
established under Rule 60Q-2.009, Florida Administrative Code.
Rule 60Q-2.009 specifically states that the
standards of conduct set forth in the rule are adopted as a general but
mandatory guide for all representatives appearing in an administrative
proceeding except counsel subject to the disciplinary procedures of the
Florida Bar. [Emphasis added.] Without making any judgments about Mr.
Feren's attorney's conduct during these proceedings, we find, as set forth in
the rule, that inasmuch as Mr. Feren's attorney is subject to the disciplinary
procedures of the Florida Bar, Rule 60Q-2.009, F.A.C. does not apply to
him. Therefore, Mr. Colon's exception
is rejected, as the Hearing Officer's ruling with respect to Mr. Colon's
objection regarding Mr. Feren's attorney's conduct was in compliance with the
essential requirements of law.
7. The
Hearing Officer erred by failing to make further evidentiary findings.
Mr. Colon's exception is rejected. This exception was rejected in paragraphs 7,
10, 14, 18, 20, and 24 of the Order of Remand and shall not be reviewed
here. Furthermore, in our Order of
Remand, we remanded this case to DOAH "for further evidentiary proceedings
necessary to resolve all factual issues concerning the amount of reasonable
attorney's fees to be awarded consistent with the methodology set forth in [Florida
Patients' Compensation Fund v.] Rowe, [472 So. 2d 1145 (Fla
1985)]." [Emphasis added.] The hearing which is the subject of the
Recommended Order was held in compliance with the Order. The Hearing Officer did not have jurisdiction
to consider any other alleged evidence of misconduct by Mr. Feren.
8. The
Hearing Officer erred by refusing to find that Section 112.317(8), Florida
Statutes, and Fla. Admin. Code Rule 34-5.029 are unconstitutional.
Mr. Colon's exception is rejected. The facial constitutionality of a statute
may not be determined in an administrative hearing. Key Haven v. Board of Trustees of Internal Improvement Trust
Fund, 427 So. 2d 153, 157 (Fla. 1982).
Nor may a hearing officer determine the facial constitutionality of an
existing rule. Department of
Environmental Regulation v. Leon County, 344 So. 2d 297 (Fla. 1st DCA
1977). The Hearing Officer's rejection
of Mr. Colon's argument was correct and comported with the essential
requirements of law.
9. These
proceedings create a chilling effect on would be ethics complainants.
Mr. Colon's exception is rejected as having
no merit since the very purpose of Section 112.317(8), Florida Statutes, is the
chilling or deterrence of frivolous and malicious Commission complaints. Couch v. Commission on Ethics, 617
So. 2d 1119, 1127 (Fla 5th DCA 1993).
For us to adopt Mr. Colon's argument would make a mockery of Section
112.317(8) and work an absurd result by denying its application in situations
arguably most deserving of its deterrent and remedial effects.
10. The
Hearing Officer erred by failing to determine whether the Commission's legal
conclusions concerning the Florida law pertaining to the right of a public
official to have his agency pay for legal representation and costs was correct.
Mr. Colon's exception is rejected. The Hearing Officer did not have the
authority or the jurisdiction to review the Commission's rulings set forth in
paragraph 4 of the Order of Remand. The
purpose of the hearing conducted by the Hearing Officer on April 11, 1994 was
to determine the amount of reasonable attorney's fees that Mr. Colon is liable
for, not to review the Commission's prior rulings. Mr. Colon's remedy for his disagreement with our rulings is to
seek judicial review pursuant to Section 120.68, Florida Statutes, of this
Final Order which incorporates our previous rulings made in our Order of
Remand.
11. The Hearing Officer erred by failing to
determine that publication is required before there can be a finding of libel,
slander, and defamation, and that the filing of a confidential complaint cannot
support a charge of libel, slander or defamation.
Because this proceeding had nothing to do
with whether Mr. Colon libeled, slandered, or defamed Mr. Feren, Mr. Colon's
exception is rejected. The issue in
these proceedings is whether the sanctions of attorney's fees and costs
authorized by Section 112.317(8), Florida Statutes, should be imposed against
Mr. Colon for his filing of a frivolous complaint with malicious intent to
injure the reputation of a pubic official.
12. The
Hearing Officer erred by disregarding the United States Supreme Court decisions
and State court rulings, including those concerning First Amendment issues,
which Mr. Colon brought to her attention.
Mr. Colon's exception is rejected. The authorities that Mr. Colon cites are not
relevant to the issue of the amount of reasonable attorney's fees to be
awarded--the only issue before the Hearing Officer for her decision. Mr. Colon's remedy relative to the other
issues that he claims were wrongly decided by the Commission is to seek
judicial review of them pursuant to Section 120.68, Florida Statutes.
13. The
Commission erred by relying on a document which is a misrepresentation of the
facts and untruthful and by failing to dismiss Mr. Feren's Petition for
Attorney's Fees and Costs because it is supported by Mr. Feren's deposition,
which contains lies, half truths, and misrepresentations of fact.
Mr. Colon's exception is rejected. This exception was previously ruled on by us
in the Order of Remand, paragraphs 8, 16, and 22, and will not be reviewed
here. Mr. Colon's remedy relative to
matters that he believes were wrongly decided by the Commission is to seek
judicial review of the Commission's Final Order pursuant to Section 120.68,
Florida Statutes.
14. The
Commission and the Hearing Officer erred by failing to comply with the
procedural requirements of Section 112.317(8), Florida Statutes, and Fla.
Admin. Code Rule 34-5.029.
Because these proceedings were conducted in
full compliance with the essential requirements of law, Mr. Colon's exception
is rejected.
15. Mr.
Feren excepts to paragraphs 28 and 29 of the Hearing Officer's Conclusions of
Law. Mr. Feren argues that the Hearing
Officer's reliance on State Farm Fire and Casualty Co. v. Palma, 629 So.
2d 830 (Fla. 1993), Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d
351 (Fla. 1987), and Florida Birth-Related Neurological Injury Compensation
Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994), for the
proposition that attorney's fees may not be awarded to compensate for time
spent litigating the amount of attorney's fees in a proceeding brought under
Section 112.317(8), Florida Statutes, is misplaced. Because we agree with Mr. Feren that these decisions do not
construe Section 112.317(8), Florida Statutes, Mr. Feren's exception is granted
and paragraphs 28 and 29 of the Hearing Officer's Conclusions of Law are
stricken. Furthermore, paragraph 31 of
the Hearing Officer's Conclusions of Law shall be modified to reflect the total
number of attorney and paralegal hours reasonably spent and expected to be
spent on these proceedings to bring them to a final conclusion as found by the
Hearing Officer in her recommended Findings of Fact. The total number of hours then shall be multiplied by the
reasonable hourly rates as found by the Hearing Officer in paragraph 5 of her
recommended Findings of Fact in order to determine the total amount of
reasonable fees for legal services incurred by Mr. Feren. Therefore, Paragraph 31 is amended to read,
as follows:
Based
on the methodology set forth in Rowe, the number of hours reasonably
spent on the proceedings is 505.35 attorney hours and 101.50 paralegal
hours. The reasonable hourly rate for
attorney time is $125 and for paralegal time is $40. The total amount of reasonable fees for legal services incurred
by Feren is $67,228.75.
Upon review of the record before us, we
conclude that the findings of the Hearing Officer are based upon competent
substantial evidence and the D.O.A.H. proceedings complied with the essential
requirements of law. Therefore, the
Findings of Fact set forth in the Recommended Order are approved, adopted, and
incorporated herein by reference.
1. Due
to what appears to be a scrivener's error, the Hearing Officer in paragraph 32
of her recommended Conclusions of Law has indicated that the total costs
incurred in connection with this proceeding are $8,553.40. She noted that the costs were $2,593.90 for
transcripts, air fare, hotel accommodations, $250 for filing fees, and
$4,237.50 for expert witness fees. The
total of these costs is $7,081.40. Therefore,
paragraph 32 of the Hearing Officer's recommended Conclusions of Law shall be
amended to reflect that the total costs incurred by Feren in connection with
these proceedings are $7,081.40.
2. The
conclusions of law except as modified above are approved, adopted, and
incorporated herein by reference.
Accordingly, the Commission on Ethics
readopts and incorporates herein its Findings of Fact, Conclusions of Law, and
rulings on the parties' exceptions as set forth in its Order of Remand dated
April 30, 1990 and determines that the Complainant, Bill Colon, filed an ethics
complaint which was frivolous and without basis in law and fact against the
Respondent, Mr. Steven B. Feren, a public officer, with a malicious intent to
injure the reputation of Mr. Feren and that Mr. Colon is therefore liable for
attorney fees and costs incurred, as described herein.
WHEREFORE, pursuant to Section 112.317(8),
Florida Statutes, the Commission on Ethics determines that the Complainant,
Bill Colon, is liable to the Respondent, Steven B. Feren, for attorney's fees
and costs in the total amount of $74,310.15.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on October 13, 1994.
____________________________
Date
Rendered
_______________________________
R.
Terry Rigsby
Chairman
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. Bill Colon, Complainant/Respondent
Mr. Stuart R. Michelson, Attorney for
Respondent/Petitioner
Honorable Susan B. Kirkland, Hearing
Officer
Division of Administrative Hearings