BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re
STEVEN B. FEREN, )
)
Respondent. )
Complaint No. 91-45
)
DOAH
Case No. 92-2458EC
________________________)
ORDER
OF REMAND TO THE DIVISION OF
ADMINISTRATIVE
HEARINGS
This matter came before the Commission on
Ethics on the Recommended Order rendered in this matter on February 5, 1993, by
the Division of Administrative Hearings' Hearing Officer (a copy of which is
attached and incorporated by reference).
The Hearing Officer recommends that the Commission enter a Final Order
dismissing the Petition for Attorney's Fees and Costs. Both Respondent/Petitioner and
Complainant/Respondent filed exceptions to the Recommended Order.
Having reviewed the Recommended Order, the
exceptions, and the record of the public hearing of this petition, and having
considered the arguments of counsel for the Respondent/Petitioner, Steven B.
Feren, and the arguments of the Complainant/Respondent, Bill Colon, the
Commission makes the following findings, conclusions, rulings and
determinations:
1. Respondent/Petitioner,
Steven Feren, excepts to the Hearing Officer's Findings of Fact at paragraph 42
and 43 of the Recommended Order in which the Hearing Officer found that the
evidence presented failed to prove who retained Attorney Michelson, what type
of agreement was entered into for Attorney Michelson's legal services, or who
was liable for any of the fees or costs incurred as a result of Mr. Michelson's
defending Mr. Feren against the complaint.
Mr. Feren argues that there is sufficient evidence in the record to
support a finding that Attorney Michelson represented Mr. Feren and billed both
the City of Sunrise and Mr. Feren at the hourly rate of $125.00 and that the
City of Sunrise has paid some of these bills.
The evidence cited by Mr. Feren as supporting his proposed findings was
hearsay, and could not be used to support his proposed findings. Because there is competent substantial
evidence of record upon which the Hearing Officer could base his finding, this
exception is rejected.
However, the findings that Mr. Feren
proposes be made were, in fact, made.
See Findings of Fact Nos. 40, 41, and 45. Findings of Fact 42 and 43 are not inconsistent with these
findings and are supported by competent substantial evidence in the
record. Furthermore, as stated by the
Court in Heifetz v. Department of Business Regulation, Division of Alcoholic
Beverages & 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). If,
as is often the case, the evidence presented supports two inconsistent
findings, it is the hearing officer's role to decide the issue one way or the
other.
The Hearing
Officer was properly fulfilling this function.
It is not our function to reweigh the evidence as long as there is
competent substantial evidence to support the Hearing Officer's findings, as
there is here.
2. Respondent/Petitioner,
Steven B. Feren, excepts to that portion of the Appendix to the Recommended
Order wherein the Hearing Officer finds that Mr. Feren's proposed finding of
fact 43 is "not supported by the weight of the evidence." Proposed finding of fact 43 states:
"Mr. Colon never had any personal knowledge of any facts which would
indicate that Mr. Feren was employed by Universal Title Insurers." Because there is competent substantial
evidence in the record upon which the Hearing Officer could base his ruling,
the exception is rejected.
Mr. Feren argues that by not adopting his
proposed finding of fact, an inconsistency exists with the Hearing Officer's
specific finding that "Mr. Colon's complaint was frivolous and without
basis in law or fact." By a
preponderance of the evidence, the Hearing Officer rejected most of the
explanations given by the Complainant/Respondent, Bill Colon, as to the
information he relied upon when filing his complaint. This is not the same as rejecting the testimony because Mr. Colon
had no "personal knowledge" of any "facts" which would
indicate that Mr. Feren was employed by Universal Title Insurers. The Hearing Officer fulfilled his function
of weighing the evidence and the credibility of the witnesses in determining
the reasonableness of the assumptions (see Finding of Fact 15, Recommended
Order) made by Mr. Colon prior to his filing the complaint against
Respondent/Petitioner Feren.
3. Respondent/Petitioner
excepts to the Hearing Officer's use of the term "reject" when
referring to portions of Mr. Colon's testimony. Respondent/Petitioner argues that the term is subject to some
ambiguity. This exception is rejected.
The term "reject" is not a
special term of art. Because it is not
our function to rewrite the Hearing Officer's Findings of Fact when they are
supported by competent substantial evidence of record, and because we do not
find any ambiguity in the Hearing Officer's use of the term, we find that this
exception has no merit.
4. Respondent/Petitioner, Steven B. Feren,
excepts to paragraphs 65, 66, and 67 of the Conclusions of Law in the
Recommended Order. Mr. Feren writes
that although the Hearing Officer acknowledges that if the Commission applies
the same conclusions of law reached by it in the case of Chapin v. Couch,
it would enter an award of attorney's fees against Mr. Colon, he concludes that
the Chapin Final Order is not persuasive. Mr. Feren argues that the Hearing Officer is bound to follow the
Commission's reasoning in Chapin, as a matter of law. He argues that the doctrine of stare
decisis mandates that result.
While we find that administrative due
process "requires agency consistency among like petitioners and
respondents." Central Florida Regional Hospital v. DHRS, 582 So. 2d
1193, 1196 (Fla. 5th DCA 1991); North Miami General Hospital v. Office of
Community Medical Facilities, DHRS, 355 So. 2d 1272, 1278 (Fla. 1st DCA 1978),
we do not find that the rule of stare decisis applies here. The rule is that "when a point has once
been settled by judicial decision it should in the main be adhered to, for it
forms a precedent to guide courts in future similar cases." 13 Fla. Jur.
2d Courts and Judges, Section 136.
However, the Commission's Final Order in Chapin, which
interpreted Section 112.317(8), Florida Statutes, was rendered on July 22,
1992. Even if we assume that the
doctrine of stare decisis applies to decisions of administrative
agencies, the Commission's holding, which is presently under appeal to the
Fifth District Court of Appeals in Case No. 92-02016, was the first and only
one interpreting this provision of the Code of Ethics and is not one of such
long standing that the doctrine can or should apply.
However, we reject the Hearing Officer's
conclusions here and find that the Hearing Officer erred in concluding that the
plain and unambiguous language used by the Legislature in Section 112.317(8),
Florida Statutes, only provides for an award of attorney's fees in situations
where the person complained against "incurred fees." As we found in Chapin, we also find
here that the Legislature intended, in enacting Chapter 75-208, Laws of
Florida, which is codified at Section 112.317(8), Florida Statutes (the costs
and attorney's fee provision at issue here), to punish persons who make
malicious and baseless ethics complaints, such as that found by the Hearing
Officer and this Commission to have been made by Mr. Colon against Mr. Feren,
and thereby intended to deter similar conduct.
The Hearing Officer adheres unduly to what
he considers to be the strict language of the provision and focuses on the
phrase "incurred by the person complained against" in coming to his
conclusion and recommendation that costs and attorney's fees should not be
awarded. However, it is a fundamental
rule of statutory construction that legislative intent is the polestar by which
a body must be guided in determining the meaning of a statute, and this intent
must be given effect even though it may contradict the strict letter of the
statute. Furthermore, construction of a
statute which would lead to an absurd or unreasonable result or would render a
statute purposeless should be avoided.
See State v. Webb, 398 So.2d 820, 824 (Fla. 1981); City of St.
Petersburg v. Siebold, 48 So.2d 291 (Fla. 1950).
To determine legislative intent, the act as
a whole--the evil to be corrected, the language of the act, including its
title, the history of the enactment, and the state of the law already in
existence bearing on the subject--must be considered. The origins and purposes of this attorney's fee provision at
issue here point toward a construction different from that placed upon it by
the Hearing Officer and one which will fulfill the purposes of the provision--to
punish and deter those who would abuse the complaint filing provisions of the
Code of Ethics.
We also conclude that because the right of
a public officer or employee to be represented by counsel retained by his
agency in situations such as that encountered by the Respondent/Petitioner,
Steven Feren, pursuant to the filing of an ethics complaint against him had not
been clearly established by Florida case law at the time of the enactment of
the attorney's fee provision at issue, it is reasonable to conclude that the
phrase "incurred by the person complained against" was not chosen in
order to limit the award only to those cases in which a public official or
employee personally paid funds from his or her own pocket, rather than where
the agency also was providing or paying for the official's representation. We find that the meaning of the term
"incur" encompasses situations such as that of the Respondent, Mr.
Feren, and is not limited to situations where the Respondent pays fees directly
to his attorney out of his own pocket.
The Hearing Officer also argues that the
Legislature, when it adopted Section 112.317(8), Florida Statutes, used the
term "incurred" even though that term was not included in Section
57.105, Florida Statutes, and that, since the Legislature presumably was aware
of the provisions of Section 57.105 and the judicial decisions interpreting
that Section when it adopted Section 112.317(8), the Legislature must have
intended Section 112.317(8) to apply differently from Section 57.105. However, this disregards the fact that
Section 57.105 was created after Section 112.317(8) and, therefore, the
Legislature could not have been aware of the provisions of Section 57.105 and
court decisions interpeting that provision when it adopted Section
112.317(8). (Section 112.317(8) was
created by Ch. 75-208, Laws of Florida, while Section 57.105 was created by
Chapter 78-275, Laws of Florida.)
5. Complainant/Respondent,
Bill Colon, excepts generally to the manner and method utilized by the Hearing
Officer in arriving at his conclusions and recommendations. Mr. Colon believes that the Hearing Officer's
Recommended Order is a reflection of his negative reaction to Mr. Colon's
representation of himself during these proceedings. As an example, Mr. Colon argues that the Hearing Officer accepted
Mr. Feren's Proposed Recommended Order over Mr. Colon's objection that it was
two days late. He writes that the
Hearing Officer ruled that because Mr. Colon's objection did not state that its
acceptance was "prejudicial to [his] interest," it would be accepted. Mr. Colon argues that "any astute
individual perusing the Proposed Recommended order would conclude without exception that the order was in fact
prejudicial to my interest."
However, Mr. Colon misinterpreted the Hearing Officer's ruling. The issue was not whether Mr. Feren's
Proposed Recommended Order itself was "prejudicial to [his]
interest," the issue is whether Mr. Colon was prejudiced in any way
through the Hearing Officer's acceptance of the Proposed Recommended Order,
which is merely advisory to the Hearing Officer. Respondent's exception, therefore, is rejected, as these
proceedings were conducted by the Hearing Officer in compliance with the
essential requirements of the law.
6. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's failure to find in the last
paragraph of page 3 of the Recommended Order that Mr. Feren's attorney admitted
that Mr. Feren did not incur any attorney's fees or costs and that a
possibility existed that a "subrogation claim" could be asserted by
Mr. Feren. This exception is rejected
as there is no competent substantial evidence of record to support such a
finding. Additionally, Mr. Colon argues
that the Hearing Officer erred in permitting Mr. Feren to file an Amended
Petition for Attorney's Fees after the initial petition had been dismissed for
his failure to specifically allege that "[Mr. Feren] had incurred
attorney's fees and cost[s]." We
find that the Hearing Officer did not err in permitting the filing of the
amended petition and the procedures followed in these proceedings complied with
the essential requirements of the law.
7. Complainant/Respondent,
Bill Colon, excepts to Mr. Feren's absence from the hearing. Mr. Colon argues that as a result of Mr.
Feren's absence, "the full facts were not present[ed]." This exception is rejected. Mr. Colon chose to represent himself in
these proceedings. Therefore, he was
obligated to present any facts that he thought relevant to a determination by
the Hearing Officer of the issues in these proceedings. We note that apart from Mr. Colon's failure
to list Mr. Feren as a witness to be subpoenaed for the hearing, the Hearing
Officer granted Mr. Colon the opportunity to take Mr. Feren's deposition. Mr. Colon failed to avail himself of this
opportunity.
Mr. Colon argues further that Mr. Feren's
attorney never contacted him to advise him of a date that would have been
convenient to Mr. Feren for the taking of Mr. Feren's deposition. We are of the opinion that Mr. Colon had an
equal, if not greater, responsibility to contact Mr. Feren's attorney about
scheduling Mr. Feren's deposition.
8. Complainant/Respondent,
Bill Colon, excepts to the acceptance of Mr. Feren's exhibits "without
exception." This exception is
rejected. The record of these proceedings
indicates that although Mr. Colon was given the opportunity to raise any
objections that he might have to any of the exhibits, he failed to do so.
9. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's findings concerning Mr. Colon's
response to the Commission's staff attorney's letter to Mr. Colon which sought
additional information to support the allegations Mr. Colon had made in his
complaint. See paragraphs 4, 5, 6, 7,
and 8 of the Recommended Order. Mr.
Colon argues that the Hearing Officer's findings were "prejudiced" to
him. Mr. Colon's exception is
rejected.
As we stated in paragraph 1 above and we
reiterate here, among other things, 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 presented, and reach
ultimate findings of fact based on competent substantial evidence. The Hearing Officer properly fulfilled this
function. It is not our function to
reweigh the evidence or attempt to draw different inferences from the evidence
as long as there is competent substantial evidence to support the Hearing
Officer's findings, as there is here.
10. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's failure to contact the
Commission's investigator to ascertain the truth of [Bill Colon's]
comments. This exception is
rejected. The role of the hearing
officer is discussed in paragraphs 1 and 9 above. It is the obligation of the parties to present all relevant
evidence to the Hearing Officer, not the Hearing Officer's function to conduct
an independent investigation.
11. Complainant/Respondent,
Bill Colon, excepts to the comments of the Hearing Officer in paragraphs 14 and
15 of the Recommended Order. This
exception is rejected as there exists substantial competent evidence of record
to support the Hearing Officer's findings.
Paragraph 15 is merely the Hearing Officer's statement of permissible
inferences drawn from the evidence presented.
12. Complainant/Respondent
excepts to the "comments and conclusions" made by the Hearing Officer
in paragraph 20 of the Recommended Order wherein the Hearing Officer found:
The weight of the evidence failed to prove
that Mr. Colon made any effort prior to filing the complaint or amended
complaint to verify the assumptions he had made as set out in findings of fact
15(a), (b), (c) or (e). The most
significant of the assumptions which Mr. Colon made no effort to verify was the
assumption that Mr. Feren had performed closing for Lennar Corporation or
Universal Title Insurers. Mr. Colon's
complaint was frivolous and without basis in law or fact.
Mr. Colon
writes that Mr. Feren admitted in deposition that he conducted closings with
Universal Title Insurers for his clients,
not on behalf of Universal Title Insurers. Therefore, he argues, the complaint was not frivolous, and until
"an investigation is completed to determine what side of the table Mr.
Feren was sitting," a determination as to whether there was any basis in
law for the complaint cannot be made.
However, contrary to Mr. Colon's assertions, we are of the opinion that
whether there is any basis in law or fact for a complaint should be known by
the complainant at the time of or prior to the filing of a complaint. Because there is competent substantial evidence
of record to support the Hearing Officer's findings, this exception is
rejected.
13. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's findings in paragraphs 21, 22, and
23 of the Recommended Order. He argues
that "even a reasonable and prudent man after an extended period of time
could forget a 3 to 5 minute phone call after a period of time." Thus, his forgetting the phone call should
not lead the Hearing Officer to the conclusion that he "fabricated the
facts." However, as we stated in
paragraphs 1 and 9 above, it is the Hearing Officer's function to judge the
credibility of witnesses, as he did here.
Because there is competent substantial evidence of record to support the
Hearing Officer's findings, this exception is rejected.
14. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's findings in Part H and paragraphs
27 and 28 of the Recommended Order wherein the Hearing Officer rejects Mr.
Colon's testimony concerning "the alleged comments of Mr.
Hoffman." Mr. Colon argues that
the Hearing Officer should have made inquiries to ascertain the truth of the
matter. For the reasons stated in
paragraph 10 above, this exception is rejected.
15. Complainant/Respondent,
Bill Colon, excepts to paragraph 33 of the Recommended Order wherein the
Hearing Officer, among other things, finds: "Mr. Colon also considers
himself the 'Watchdog of the City.'"
Mr. Colon argues that the testimony presented at the hearing indicates
that the "people of Sunrise" gave him that title; he did not assume
it for himself, as a fanatic might. Mr.
Colon contends that the Hearing Officer's finding was intended solely to
ridicule him. This exception is
rejected as there is competent substantial evidence of record to support the
Hearing Officer's finding.
16. Complainant/Respondent
excepts to the Hearing Officer's Finding of Fact 34 of the Recommended Order in
which he finds that Mr. Colon filed his complaint with a malicious intent to
injure Mr. Feren's reputation. Mr.
Colon argues that the Hearing Officer's finding is based solely on Mr. Feren's
deposition which was admitted into evidence over his objections. This exception is rejected. Initially we note that contrary to Mr.
Colon's assertion, the Hearing Officer stated his finding was "based upon
Mr. Colon's dealings with Mr. Feren as evidenced by the testimony of Mr.
Colon and Mr. Feren." [Emphasis added.] The admission into evidence of Mr. Feren's deposition by the
Hearing Officer, who also gave Mr. Colon the opportunity to take Mr. Feren's
deposition, complied with the essential requirements of the law.
17. Complainant/Respondent
excepts to the Hearing Officer's Finding of Fact 36 of the Recommended Order
wherein he finds:
Although filing a complaint in and of itself
may not be of much consequence in determining a person's motive, the fact that
Mr. Colon has filed other complaints against Mr. Feren, when considered with
the other testimony, supports the conclusions reached in this Recommended
Order.
Mr. Colon
argues that the Hearing Officer did not examine the three complaints or the
basis for their dismissal but chose to accept Mr. Feren's argument "that
anyone filing a complaint should be punished for doing so." Mr. Colon's interpretation of the Hearing
Officer's finding is a distortion of what the Hearing Officer, in fact,
found. Because there is competent
substantial evidence of record to support the Hearing Officer's finding, the
exception is rejected.
18. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's findings in paragraphs 37 and 38
of the Recommended Order wherein he quotes portions of Mr. Colon's deposition
testimony to indicate that Mr. Colon was other than neutral "concerning
Mr. Feren as an individual." Mr.
Colon argues that if the Hearing Officer had properly looked into the matter and
followed the "established guidelines," he would have reached a
different conclusion. Because we find
that there was competent substantial evidence of record to support the Hearing
Officer's findings, the exception is rejected.
We also find, as we have previously found, that the procedures followed
by the Hearing Officer in these proceedings complied with the essential
requirements of the law.
19. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's Finding of Fact 39 of the
Recommended Order wherein he discusses the potential harm that may have arisen
to Mr. Feren's reputation as a result of the filing of Mr. Colon's
complaint. Mr. Colon argues that
"could have" possibilities have no basis in the law. Because the Hearing Officer's findings are
permissible inferences drawn from the competent substantial evidence of record,
this exception is rejected.
20. Complainant/Respondent,
Bill Colon, excepts to the Hearing Officer's Findings of Fact 41, 42, and 43 of
the Recommended Order wherein he found that the City of Sunrise authorized payment
of some of the attorney's fees owed to Mr. Michelson as a result of his
representation of Mr. Feren, and that the evidence failed to prove who retained
Mr. Michelson, what type of agreement was entered into for Mr. Michelson's
legal services, or even whether Mr. Feren was liable for any of the fees or
costs incurred as a result of defending the complaint. Mr. Colon argues that without a thorough
investigation of the facts, the Hearing
Officer jumped to a conclusion that was not substantiated by the facts and the
law. As we have previously stated, it
is not the Hearing Officer's function to conduct an investigation of the
facts. Because there was competent
substantial evidence of record to support the Hearing Officer's findings, the
exception is rejected.
21. Complainant/Respondent,
Bill Colon excepts to Finding of Fact 48 of the Recommended Order wherein the
Hearing Officer wrote that among the exhibits that Mr. Colon offered into
evidence, which were not properly authenticated or identified, were minutes
and/or agendas of meetings of the City Commission of Sunrise and several bills
from Mr. Michelson. He also wrote that
these exhibits constituted hearsay. Mr.
Colon argues that hearsay evidence is admissible. He also argues that Attorney Michelson was given free reign to do
anything and say anything he wanted without "having to be concerned with
procedures or even the law."
Initially we note that the rule on the
admissibility of hearsay evidence in administrative proceedings is set forth in
Section 120.58(1)(a), Florida Statutes, which provides: "Hearsay evidence
may be used for the purpose of supplementing or explaining other evidence, but
it shall not be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions." Because these proceedings were held in compliance with the
essential requirements of law, the exception is rejected.
22. Complainant/Respondent,
Bill Colon, excepts generally to the Hearing Officer's conclusions. Mr. Colon argues that the Hearing Officer's
conclusions are based on the one-sided deposition of Mr. Feren. For the reasons stated in paragraphs 7 and 9
above, this exception is rejected.
23. Complainant/Respondent,
Bill Colon, excepts to paragraphs 56, 57, and 58 of the Hearing Officer's
Conclusions of Law. For the reasons
stated in paragraphs 6, 10, and 12 above, this exception is rejected.
24. Complainant/Respondent,
Bill Colon, excepts to paragraph 60 of the Hearing Officer's Conclusions of Law
wherein he concludes "that the specific acts alleged by Mr. Colon in the
Complaint, as amended, did not occur."
Mr. Colon argues that the Hearing Officer failed in his investigation of
this matter and completely ignored what he presented as well as Mr. Michelson's
admission that Mr. Feren did in fact conduct closings at Universal Title
Insurers. For the reasons stated in
paragraphs 1, 10, and 12 above, this exception is rejected.
With the exception of paragraph 46, and
paragraphs 61 and 68, to the extent that they constitute findings of fact, the
Findings of Fact set forth in the Recommended Order are approved, adopted, and
incorporated herein by reference.
In paragraph 46, the Hearing Officer found:
Based
upon Mr. Goren's expert testimony, the total amount of attorney fees reasonably
incurred as a result of Mr. Colon's Complaint is $19,200.50. Although Mr. Goren testified that the total
reasonable fee was $19,255.50, the amounts of the individual bills for service
that he reviewed totalled $19,200.50.
However, this
finding is based solely on Respondent's Expert's testimony that after reviewing
Respondent's Attorney's files and a number of bills presented by the Respondent
it was his opinion that $125.00 per hour is a reasonable fee and the amount of
fees reasonably incurred is $19,200.50.
This finding fails to meet the methodology set forth by the Court in Florida
Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), for
determining the amount of reasonable attorney's fees to be awarded. There the Court adopted the federal lodestar
approach which requires a court to determine the number of hours reasonably
expended on the litigation and to multiply that amount by a reasonable hourly
rate for the services of the attorney.
The factors to be considered by a court in making these determinations
also are set forth in the opinion. See
also Ganson v. State Department of Administration, 554 So. 2d 522 (Fla
1st DCA 1989), where the court approved and adopted the report and recommendation
of the DOAH hearing officer establishing the amount of reasonable fees for the
administrative phase, appeal phase, and attorney fee phase, of an
administrative proceeding employing the Rowe methodology; Tucker v.
Tucker, 513 So.2d 733 (Fla. 2d DCA 1987), regarding the necessity of
providing the attorney's time records under Rowe; and Dralus v.
Dralus, 18 FLW D302 (Fla. 2d DCA 1993).
Therefore, because there is a lack of competent substantial evidence to
support the Hearing Officer's findings in paragraph 46 of his Findings of Fact
and in paragraphs 61 and 68 of his Conclusions of Law, to the extent that they
constitute findings of fact, these findings are rejected.
1. With
the exception of paragraph 61, to the extent that it constitutes a conclusion
of law, and paragraph 68 and as modified above, the Conclusions of Law set
forth in the Recommended Order are approved, adopted, and incorporated herein
by reference.
In paragraph 68, the Hearing Officer
concludes:
It
is recognized that the Commission will, in all likelihood, apply the same
conclusions of law reached by it in the Chapin Final Order to this
case. If so, the evidence did prove
that the reasonable attorney fees associated with Mr. Colon's Complaint was
$19,200.50. Therefore, having concluded
that Mr. Colon's Complaint, as amended, was made with a malicious intent to
injure Mr. Feren's reputation and that the Complaint was frivolous and without
basis in law or fact, the Commission's conclusions of law in the Chapin
Final Order would support an award to Mr. Feren of $19,200.50.
Because this
conclusion, which is based upon paragraph 46 of the Hearing Officer's Findings
of Fact, is rejected because it is not supported by competent substantial
evidence of record, this conclusion, likewise, is rejected.
2. Accordingly,
the Commission on Ethics concludes 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, the Commission is unable to
determine the amount of attorney's fees that Mr. Colon is liable to Mr. Feren
for without remanding this case to the Division of Administrative Hearings 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 Rowe,
supra. See Manasota 88, Inc.
v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989).
3. Mr.
Feren has asked the Commission to reserve its jurisdiction over this matter for
purposes of determining his entitlement to attorney's fees incurred for the
administrative hearing and subsequent thereto.
While the Commission does not decide here whether Mr. Feren is entitled
to these attorney fees, it does conclude that the Commission does not have the
authority to reserve jurisdiction to make further factual findings and,
therefore, must remand this issue to the Division of Administrative Hearing for
further evidentiary proceedings necessary to resolve this issue as well.
WHEREFORE, the Commission on Ethics remands
this case to the Division of Administrative Hearings for further evidentiary
proceedings with respect to each applicable aspect of Rowe.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on Thursday, April 22, 1993.
______________________________
Date
______________________________
Stephen
N. Zack
Chairman
cc: Mr. Bill Colon, Complainant/Respondent
Mr. Stuart R. Michelson, Attorney for
Respondent/Petitioner
Division of Administrative Hearings