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 attorney’s 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 Officer’s Recommended Order, the
Commission’s 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
Colon’s Exceptions to Recommended Order.
Because Mr. Colon’s 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. Feren’s
motion to strike Mr. Colon’s exceptions.
Having reviewed the Recommended Order and Mr.
Colon’s 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. COLON’S MOTION FOR DISMISSAL
AND
Mr. Colon’s 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. Colon’s 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. Colon’s 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 Appeals’ 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 Colon’s Motion For Dismissal and Motion for Summary Judgment are
denied.
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 Officer’s
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
Officer’s findings and the Findings of Fact set forth in the Recommended Order
are approved, adopted, and incorporated herein by reference.
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
Petitioners’ 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