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:

 

Rulings on Exceptions

 

     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.

 

 

Findings of Fact

 

     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.

 

 

Conclusions of Law

 

     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