STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STEVEN B. FEREN, )
vs. ) CASE NO. 92-2458EC
) COMPLAINT NO. 91-45
BILL COLON, )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 16, 1992, in Fort Lauderdale, Florida.
For Petitioner: Stuart R. Michelson, Esquire
1111 Kane Concourse, Suite 517
Bay Harbor Islands, Florida 33154
For Respondent: Bill Colon, pro se
STATEMENT OF THE ISSUES
Whether Bill Colon, the Respondent, should be required to pay attorney's fees and costs to Steven B. Feren, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?
On or about March 26, 1991, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint was filed by the Respondent, Bill Colon, and contained allegations of misconduct by Steven B. Feren, the Petitioner in this case. On or about June 25, 1991, Mr. Colon filed an amended complaint.
On October 1, 1991, a Determination of Investigative Jurisdiction and Order to Investigate was entered. Pursuant to the order, the Commission began an investigation of the allegations against Mr. Feren raised in Mr. Colon's complaint.
On January 16, 1992, a Report of Investigation was issued. Based upon the report, an Advocate for the Commission entered an Advocate's Recommendation on January 31, 1992. The Advocate recommended dismissal of the complaint against Mr. Feren.
On March 11, 1992, the Commission entered a Public Report dismissing the complaint against Mr. Feren.
On or about April 2, 1992, Mr. Feren filed a pleading titled "Respondent's Petition for Attorney's Fees and Costs" with the Commission. On or about April 20, 1992, Mr. Colon filed a document titled "Rebuttal to Respondents [sic] Petition to Assess Costs and Fees Against Complainant."
By letter dated April 20, 1992, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rule 34-5.029, Florida Administrative Code, requested that a hearing be conducted by the Division of Administrative Hearings.
On April 23, 1992, a Notice of Assignment and Order was entered. Pursuant to this order the parties were informed that the undersigned had been assigned this case. The parties were also given an opportunity to provide input concerning when and where the final hearing of this case should be held.
On May 12, 1992, a Notice of Hearing was entered scheduling the final hearing for July 16, 1992.
On May 18, 1992, a Motion to Dismiss was filed by Mr. Colon. At the request of the undersigned, a telephone motion hearing was conducted on May 19, 1992. During the hearing, the parties were informed of the Recommended Order entered by the undersigned in Chapin v. Couch, Division of Administrative Hearings' Case No. 91-7002EC, on May 11, 1992. A copy of the Chapin Recommended Order was provided to both parties.
On May 29, 1992, an Order Granting Motion to Dismiss with Leave to File Amended Petition was entered. Pursuant to the May 29, 1992, Order the final hearing scheduled for July 16, 1992, was cancelled, the case was dismissed and Mr. Feren was given until June 15, 1992, to file an amended petition.
Relying upon the Recommended Order in Chapin, it was concluded in the May 29, 1992, Order dismissing this case that Mr. Feren's petition should be dismissed because he had failed to allege that he had "incurred" any fees or costs. It was noted in the May 29, 1992, Order that Mr. Feren had not alleged that he had in fact incurred fees and costs. Allegations indicating that fees had been incurred by Mr. Feren, however, were contained in a pleading filed in response to the motion to dismiss. Therefore, Mr. Feren was given an opportunity to file an amended petition. The parties were also informed that, if the allegations contained in Mr. Feren's response to the motion to dismiss were included in an amended petition, a formal hearing appeared to be necessary.
On June 4, 1992, Mr. Feren filed an Amended Petition. In the amended petition, Mr. Feren alleged that he had incurred attorney fees and costs as a result of Mr. Colon's complaint against him. Motions to dismiss the amended petition were subsequently denied.
By Order entered June 23, 1992, this case was placed in abeyance pending the entry of a Final Order by the Commission in Chapin. On July 22, 1992, the Commission entered a Final Order in the Chapin case. The Commission rejected the undersigned's conclusion in the Chapin Recommended Order that the person seeking fees and costs was required to prove that he or she had "incurred" such fees and costs.
On July 27, 1992, an Order Cancelling Abeyance of Case and Giving Parties Opportunity for Input was entered. The parties were provided a copy of the Chapin Final Order, and were given until August 10, 1992, to provide input as to when and where the final hearing of this case should be held.
On August 13, 1992, a Second Notice of Hearing was entered scheduling the final hearing for October 26, 1992. On August 24, 1992, Mr. Colon filed a motion for continuance. On August 25, 1992, an Order Granting Motion for Continuance was entered. The final hearing was rescheduled, without objection from Mr. Feren, for November 16, 1992.
On August 24, 1992, Mr. Colon again filed a motion to dismiss. The motion was denied by Order entered September 2, 1992.
At the commencement of the final hearing, Mr. Colon objected to the fact that Mr. Feren did not intend to attend the final hearing. Mr. Feren, a newly elected member of the Florida House of Representatives, was in Tallahassee, Florida, attending orientation meetings for new House members. Mr. Colon's objection was overruled. Mr. Colon was given the opportunity, however, to take the deposition of Mr. Feren subsequent to the conclusion of the final hearing and to file the deposition late. Mr. Colon chose not to take Mr. Feren's deposition.
During the final hearing Mr. Feren presented the testimony of Samuel Goren and Mr. Colon. Mr. Goren was accepted as an expert on the issue of reasonable attorney fees. Mr. Feren also offered his deposition testimony and the deposition testimony of Mr. Colon and Peter Ostreich. Mr. Feren also offered ten exhibits, including the three depositions. All of Mr. Feren's exhibits were accepted into evidence.
Mr. Colon testified on his own behalf. Mr. Colon offered eighteen exhibits. A ruling on the relevancy of Respondent's exhibits 4, 5 and 8 was reserved. Respondent's exhibit 13 was rejected. The remaining exhibits were accepted into evidence.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
A. The Parties.
1. Steven B. Feren served as a member of the City Commission of the City of Sunrise, Broward County, Florida, at all times relevant to this proceeding. Mr. Feren served as a Commissioner from approximately March, 1987 until late 1992.
2. Bill Colon is a citizen of the State of Florida and resides in the City of Sunrise, Florida. Mr. Colon served as a member of the City Commission of the City of Sunrise from approximately 1981 to 1987.
B. Mr. Colon's Ethics Complaint Against Mr. Feren.
3. On or about March 26, 1992, Mr. Colon filed a Complaint against Mr. Feren (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. The Complaint contained the following allegations:
Feren is a City Councilman and now as a City
Commissioner is a practicing attorney whose
firms [sic] has for a continuous period of
time performed legal services, particularly
title closings for Universal Title Insurors
which is a subsidiary of the Lennar
Corporation. This has been a continuous
conflict of interest as the Lennar
Corporation is a corporation that continually
conducts business before the City
Commission. It presents plats, zoning
changes and other matters relating to their
business as a real estate developer in
Sunrise. Feren has never filed a conflict
of interest form nor has he ever announced
at a public hearing that a potential
conflict of interest arose because of his
vote on any matter involving Lennar
. . . .
Petitioner's Exhibit 1.
4. A letter dated June 10, 1992, (Petitioner's exhibit 4) was sent to Mr. Colon from Peter Ostreich, a staff attorney for the Commission. In the June 10, 1992, letter, Mr. Colon was asked to provide more specific information concerning the allegations of his Complaint:
. . . . Section 3 of the complaint form
requires the Complainant to provide a
detailed description of the facts and the
actions of the person named in the
complaint, any relevant dates, and the names
and addresses of witnesses. The complaint
you filed with this office does not contain
this required information.
In order to undertake a review of the
complaint for legal sufficiency, I must
request that you first provide us with
detailed factual allegations that support
your claims, particularly as to the matters
of Mr. Feren's conflict of interest. . . .
Mr. Ostreich goes on in the letter to ask Mr. Colon to answer specific questions concerning Mr. Colon's allegations against Mr. Feren.
5. In response to Mr. Ostreich's June 10, 1991, letter, Mr. Colon filed another complaint (hereinafter referred to as the "Amended Complaint"), with the Commission. In response to Section 3 of the Amended Complaint Mr. Colon attached a one and one-half page, legal sized, "Statement of Facts." See Petitioner's Exhibit 5.
6. In the Statement of Facts attached to the Amended Complaint, Mr. Colon lectured the Commission concerning Mr. Colon's perception of the Commission's responsibility in investigating his initial Complaint. Mr. Colon also addressed some of the specific questions Mr. Ostreich had asked.
7. In the Statement of Facts attached to the Amended Complaint, Mr. Colon mentioned a telephone call that he made to Lennar Corporation concerning whether Lennar Corporation owned Universal Title Insurors.
8. Although requested to do so by Mr. Ostreich in his letter of June 10, 1991, Mr. Colon did not provide the names of any potential witnesses to Mr. Ostreich.
C. The Commission's Investigation of the Complaint.
9. Robert G. Malone was involved in the Commission's investigation of the Complaint. Mr. Malone spoke by telephone with Mr. Colon concerning the Complaint several times.
10. In the Report of Investigation (Petitioner's Exhibit 2) issued by the Commission on January 16, 1992, at the conclusion of the investigation of the Complaint, the following finding was made:
(4) Mr. Colon stated by telephone that he
learned that Mr. Feren's law firm performs
real estate closings for Universal Title
Insurors from an anonymous letter that was
mailed to him in February 1991. Mr. Colon
said he has no idea who mailed him the
letter, and he could not locate the letter
for examination, stating that he must have
misfiled it in his personal papers. The
Complainant acknowledged that, other then
[sic] the anonymous letter, he has no
evidence which verifies that [Mr. Feren] has
performed any work for Universal Title
11. Mr. Colon was provided a copy of the Report of Investigation and was aware of the findings contained therein. Mr. Colon did not attempt to contact Mr. Malone or the Commission after receiving the Report of Investigation and question the statement that the only evidence to support his allegations was the anonymous letter.
D. The Commission's Disposition of the Complaint
and the Amended Complaint; Mr. Feren's Request for Fees.
12. On March 11, 1992, the Commission entered a public report. Based upon the Report of Investigation and a recommendation from an Advocate for the Commission, the Commission dismissed the Complaint.
13. On or about April 2, 1992, Mr. Feren filed a pleading titled "Respondent's Petition for Attorney's Fees and Costs" with the Commission.
E. Information Relied By Mr. Colon to Support His
Allegations Against Mr. Feren.
14. The allegations in the Complaint and the Amended Complaint were based primarily upon an anonymous letter Mr. Colon received in approximately February, 1991 (hereinafter referred to as the "Anonymous Letter"). The Anonymous Letter stated the following:
I know you are concerned about what is going
on in Sunrise. Please look into Steve
Feren's dealings with DCA.
I know that he is doing title closings for
them and has kept quiet about them. Check
with the City Clerk and the city records you
will find that he as never mentioned his
working for DCA.
He should not be permitted to get away with
it. You are the only one who cares what
happens in this city.
A concerned Taxpayer
15. In filing the Complaint and Amended Complaint, Mr. Colon assumed the following: (a) the reference to "DCA" in the Anonymous Letter was a reference to the Development Corporation of America; (b) Lennar Corporation had purchased Development Corporation of America; (c) Lennar Corporation had appeared before the Sunrise City Commission and, in particular, Mr. Feren; (d) Universal Title Insurors was a subsidiary of Lennar Corporation; (e) Mr. Feren had conducted title closings with Universal Title Insurors; and (f) Mr. Feren had not filed notice of his having worked for Universal Title Insurors or Lennar Corporation. These assumptions are not identified in the Anonymous Letter. The weight of the evidence also failed to prove that any of these assumptions are correct except (a).
F. Mr. Colon's Effort to Verify the Anonymous Letter and
the Mr. Colon's Assumptions.
16. At some time after receiving the Anonymous Letter Mr. Colon telephoned the Sunrise City Clerk's office and inquired whether Mr. Feren had filed a form indicating he had a working relationship with Lennar Corporation. Mr. Colon was told that no such disclosure form had been filed.
17. Mr. Colon also telephoned an employee of the City of Sunrise, Joan Vega. Mr. Colon believed that Ms. Vega attended most City Commission meetings. Ms. Vega told Mr. Colon that she had not heard Mr. Feren disclose any conflict of interest concerning Lennar Corporation.
18. Mr. Colon also telephoned Lennar Corporation's Miami office and asked someone whether Universal Title Insurors was a subsidiary of Lennar Corporation. Mr. Colon was told that Universal Title Insurors was a subsidiary of Lennar Corporation.
19. Based upon findings of fact 16, 17 and 18, Mr. Colon attempted to determine whether the assumptions he had made as set out in finding of fact 15(d) and (f).
20. The weight of the evidence failed to prove that Mr. Colon made any effort prior in filing the Complaint or Amended Complaint to verify the assumptions he had made as set out in finding 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 Insurors. Mr. Colon's Complaint was frivolous and without basis in law or fact.
F. Other Alleged Efforts to Verify Mr. Colon's Assumptions:
The Anonymous Telephone Call.
21. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), that he had received an anonymous telephone call from a man who made allegations similar to those contained in the Anonymous Letter.
22. Mr. Colon, however, failed to disclose this telephone call to the Commission's investigator. He also did not mention the telephone call in response to the questions asked by Mr. Ostreich. Mr. Colon also failed to mention the telephone call during his direct examination during the final hearing in response to a question from counsel for Mr. Feren concerning what Mr. Colon had relied upon in filing the Complaint. Finally, Mr. Colon failed to list the telephone call on Respondent's Exhibit 1, Mr. Colon's list of efforts he purportedly took to verify his charges against Mr. Feren.
23. Based upon the weight of the evidence, it is concluded that Mr. Colon did not receive an anonymous telephone call concerning the allegations against Mr. Feren prior to the filing of the Complaint. Even if such a telephone call had been received, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter.
H. Other Alleged Efforts to Verify Mr. Colon's Assumptions:
Former Mayor Larry Hoffman's Comment.
24. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), and during the final hearing of this case that a former Mayor of the City of Sunrise, Larry Hoffman, had told him the following:
To the best of my knowledge and belief,
Mayor Hoffman said that, he brought to my
attention that it had come to his attention
that Steven Feren was doing work for
Universal Title Insurors.
Page 10, Lines 9-12, Petitioner's Exhibit 6.
25. The Report of Investigation, Petitioner's Exhibit 2, does not mention the alleged comment by Mr. Hoffman. Nor is there any indication in the Report of Investigation that any effort was made by the investigator for the Commission to determine if Mr. Hoffman had any knowledge about the incident. In the Report of Investigation, as quoted in finding of fact 10, it is only reported that Mr. Colon "acknowledged that, other then the anonymous letter, he has no evidence which verifies" the charges Mr. Colon made against Mr. Feren.
26. Mr. Colon also did not inform Mr. Ostreich of Mr. Hoffman or the alleged comment that Mr. Hoffman made in response to Mr. Ostreich's letter to Mr. Colon.
27. Based upon the weight of the evidence, Mr. Colon's testimony concerning the alleged comment of Mr. Hoffman is rejected.
28. Even if Mr. Hoffman had made the comment to Mr. Colon, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter. Mr. Colon indicated that he made no effort to discuss Mr. Hoffman's comment with Mr. Hoffman. Mr. Colon testified that Mr. Hoffman simply made the statement and that he did not ask any questions concerning the source of Mr. Hoffman's information.
I. Other Alleged Efforts to Verify Mr. Colon's Assumptions:
The Telephone Call to Universal Title Insurors.
29. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the final hearing of this case that he had telephoned Universal Title Insurors and inquired whether Mr. Feren was conducting title closings at Universal Title Insurors. Mr. Colon testified that he was told "yes."
30. Mr. Colon's testimony concerning his alleged telephone call to Universal Title Insurors is rejected. Mr. Colon made no mention of the alleged telephone call to Universal Title Insurors in his deposition of September 8, 1992:
Q. Who did you speak to at Universal or
Lennar; do you recall?
A. No, I don't. There was a lady that I
know that I used to deal with in claims
there, but I don't recall if she was the one
who I talked to.
Q. But, you would have talked to somebody
at Universal and asked them what,
A. I didn't say that. I said Lennar
Q. Oh, you talked to somebody at Lennar?
A. I asked the question is Universal
Title Insurers a subsidiary of Lennar
Corporation, and they said yes, that it was.
Q. Did you speak to somebody that you
knew or somebody who was an officer?
A. As I recall, I spoke to somebody; not
that I spoke to somebody, I asked for
somebody that I knew. It sounds like an
Israeli name that I talked to, but I don't
recall if that was the person that I talked
to, but the only question I had is Universal
Insurers a subsidiary of Lennar, and they
said yes, that it was . . . .
Page 36, Lines 6-25 and Page 37, Lines 1-8, Petitioner's Exhibit 6.
31. The alleged telephone call to Universal Title Insurors was not mentioned in the Report of Investigation. Mr. Colon did not mention the alleged telephone call to Mr. Ostreich in response to Mr. Ostreich's June 10, 1991, letter. It also was not listed on Respondent's Exhibit 1, Mr. Colon's list of the efforts he purportedly made to verify his charges against Mr. Feren.
32. Mr. Colon brought up the alleged telephone call to Universal Title Insurors for the first time during the final hearing of this case and only after extensive questioning about the other alleged events that he had already testified he had relied upon. His only explanation as to why he had not mentioned the alleged telephone call earlier was that he "probably forgot." Page 78, Line 24, Transcript of November 16, 1992.
J. Mr. Colon's Purpose in Filing the Complaint and the
33. Mr. Colon testified that he filed the Complaint against Mr. Feren because he was a concerned citizen who has been involved in the politics of the City of Sunrise for over 20 years and that his main concern was that the people receive an honest and responsible government. Mr. Colon also considers himself the "Watchdog of the City". Mr. Colon's explanation of why he filed the Complaint is not a credible explanation of Mr. Colon's total reason for filing the Complaint.
34. While Mr. Colon does have some concern about good government in the City of Sunrise, Mr. Colon's judgment in exercising that concern has been distorted by his vindictiveness against, and his malice toward, Mr. Feren. Therefore, it is concluded that Mr. Colon's motivation for filing the Complaint was not limited to any public mindedness on the part of Mr. Colon. Mr. Colon also was motivated by his desire to harm Mr. Feren. This finding of fact is based upon Mr. Colon's dealings with Mr. Feren as evidenced by the testimony of Mr. Colon and Mr. Feren. Mr. Colon filed the Complaint with a malicious intent to injure Mr. Feren's reputation.
35. The incidents between Mr. Colon and Mr. Feren have been adequately addressed in Mr. Feren's deposition testimony and are summarized in Mr. Feren's proposed finding of fact 32 (to the extent accepted and relevant--see the discussion of proposed finding of fact 32 in the Appendix to this Recommended Order). There is no need to reiterate those disagreements here.
36. Additionally, Mr. Colon has filed two prior complaints with the Commission against Mr. Colon. All three complaints filed by Mr. Colon against Mr. Feren have now been dismissed. 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.
37. Mr. Colon professed in his testimony to be neutral concerning Mr. Feren as an individual. His actions and his testimony in his deposition of September 8, 1992, and during the final hearing of this case indicate otherwise. During Mr. Colon's testimony at the final hearing he made statements such as the following:
. . . . If you're talking to me whether I
feel he is a competent legislature [sic],
whether he was a competent City
Commissioner, that has nothing to do with
personality, that has all to do with
ability. [Mr. Feren] has no abilities as
far as I'm concerned.
Page 90, Lines 20-24, Transcript of November 16, 1992.
And you said, I did not contact Mr. Feren
because I wouldn't believe him no matter
what he said.
A. That is correct, sir. I made that
statement, yes. If he told me it was
raining outside I would look out the
window. Let me go further to say this: Mr.
Feren probably holds the only title of a
person getting elected to the state house
because the citizens of Sunrise didn't want
him in the city.
Page 91, Lines 16-23, Transcript of November 16, 1992.
38. Following a description by Mr. Colon of things that Mr. Feren allegedly did as a City Commissioner which were contrary to the best interest of the citizens of Sunrise, Mr. Colon stated the following:
There are so many things that this man has
done that - and I will say this I am the
president of the Sunrise Political Club. We
have a membership totaling over 300 members
and every one of those members voted for Mr.
Feren to the state house because that was
the only way they could get rid of him and
get him out of the city; does that answer
your question, sir?
Page 97, Lines 13-19, Transcript of November 16, 1992.
39. Mr. Colon should have been aware when he filed his Complaint of the potential harm which could be caused to Mr. Feren. Mr. Colon has suggested that no harm should have come to Mr. Feren because proceedings before the Commission confidential prior to a finding of probable cause of wrong doing by the Commission. Mr. Colon's position ignores the possibility that the Complaint could have been disclosed and the potential harm to Mr. Feren's reputation that could have resulted therefrom. Mr. Colon's position also ignores the possibility that probable cause that a violation could have been found, the Complaint would then have been made public and ultimately the Complaint could have been found to be without basis. Finally, Mr. Colon's position ignores the potential harm to Mr. Feren's reputation which may have arisen as a result of the Complaint having been filed even after it was dismissed. Mr. Colon's should have been aware of the potential harm to Mr. Feren's reputation when he filed his Complaint.
K. Legal Representation of Mr. Feren.
40. Stuart R. Michelson, Esquire, represented Mr. Feren before the Commission and in this proceeding.
41. The City of Sunrise authorized the payment of some of the attorney fees owed to Mr. Michelson as a result of his representation of Mr. Feren.
42. The evidence failed to prove who retained Mr. Michelson, or what type of agreement was entered into for Mr. Michelson's legal services, or who was liable for Mr. Michelson's services.
43. The evidence failed to prove whether Mr. Feren was liable for any of the fees or costs incurred as a result of defending the Complaint.
44. The evidence also failed to prove that Mr. Feren paid any of the fees or costs incurred as a result of defending the Complaint or Amended Complaint.
L. Cost and Attorney's Fees Incurred.
45. A reasonable hourly rate for Mr. Michelson's legal service is $125.00 per hour.
46. 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 $19,255.00, the amounts of the individual bills for service that he reviewed totalled $19,200.50.
47. Mr. Feren offered into evidence a bill for legal services dated May 18, 1992, in the amount of $1,768.75. See Petitioner's Exhibit 9. No testimony concerning this exhibit was offered to explain what the exhibit is, other than Mr. Goren's testimony that a bill for $1,770.00 of May 18, 1992, was reasonable.
48. Mr. Colon offered a number of exhibits which appear to be minutes and/or agendas of meetings of the City Commission of Sunrise. Mr. Colon also offered what appears to be several bills from Mr. Michaelson concerning this matter. These exhibits, Respondent's Exhibits 5-8 and 10, were not properly authenticated or identified. They also constitute hearsay. It is also not apparent from the exhibits whether the amounts identified were actually paid or whether they were reasonable.
49. The weight of the evidence failed to prove what the reasonable costs of responding to the Complaint was. Although Mr. Colon did offer into evidence which included what appeared to be information concerning the costs which may have incurred by Mr. Michelson, there was no testimony concerning what the information was, whether the costs were paid or even whether that the costs were incurred as a result of the Complaint. Additionally, there was no testimony that those costs were "reasonable".
CONCLUSIONS OF LAW
50. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).
B. Burden of Proof.
51. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino V. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977). In this proceeding it is Mr. Feren that is asserting the affirmative. Therefore, the burden of proving that Mr. Colon should be required to pay attorney's fees and costs, and the amount thereof, was on Mr. Feren. See Rule 34-5.029(3), Florida Administrative Code.
C. The Requirements of Section 112.317(8), Florida
52. Section 112.317(8), Florida Statutes, authorizes the Commission to award attorney's fees and costs to any person complained against:
(8) In any case in which the commission
determines that a person has filed a
complaint against a public officer or
employee with a malicious intent to injure
the reputation of such officer or employee
and in which such complaint is found to be
frivolous and without basis in law or fact,
the complainant shall be liable for costs
plus reasonable attorney's fees incurred by
the person complained against. . . .
See also Rule 34-5.029, Florida Administrative Code.
53. In order to be entitled to payment for attorney's fees and costs it must be proved: (1) that the complaint was made with a malicious intent to injure the reputation of the public officer or employee; and (2) that the complaint was frivolous and without basis in law or fact. If these two facts are proved, an award of reasonable attorney's fees and costs "incurred by the person complained against" is to be ordered.
D. The Complaint was made with a Malicious Intent to Injure
Mr. Feren's Reputation.
54. In determining whether a complaint has been filed with malicious intent, Rule 34-5.029(3), Florida Administrative Code, provides the following:
. . . . "Malicious intent to injure the
reputation" may be proven by evidence
showing ill will or hostility as well as by
evidence showing that the complainant
intended to bring discredit upon the name or
character of the respondent by filing such
complaint with knowledge that the complaint
contained one or more false allegations or
with reckless disregard for whether the
complaint contained false allegations of fact
material to a violation of the Code of
Ethics for Public Officers and Employees.
Such reckless disregard exists where the
complainant entertained serious doubts as to
the truth or falsity of the allegations,
where the complainant imagined or fabricated
the allegations, or where the complainant
filed an unverified anonymous tip or where
there are obvious reasons to doubt the
veracity of the information or that of the
source of the information. [Emphasis added].
55. The evidence in this case proved that there was ill will and hostility between Mr. Colon and Mr. Feren. Additionally, the evidence proved that some of the essential allegations of fact material to a violation of the Code of Ethics for Public Officers and Employees against Mr. Feren written in the Complaint, as amended, by Mr. Colon were not supported by anything other than an anonymous letter.
56. The allegations of facts material in Mr. Colon's Complaint are set out in finding of fact 15. One of the most significant of these facts is the allegation that Mr. Feren had conducted title closings for Universal Title Insurors. The anonymous letter does not make such a specific allegation. More importantly, nothing that Mr. Colon did provided any substantiation of this material fact.
57. Mr. Colon waited until the final hearing of this case to contend that he had attempted to verify the fact that Mr. Feren had been involved in title closings for Universal Title Insurors by telephoning Universal Title Insurors. The alleged telephone call to Universal Title Insurors, based upon the weight of the evidence, was not made by Mr. Colon. Therefore, Mr. Colon took no steps to determine whether Mr. Feren in fact had handled title closings for Universal Title Insurors. Nor did Mr. Colon adequately explain how he reached the conclusion that Mr. Feren had handled such closings.
58. Even if Mr. Colon had received the anonymous telephone call and had been told by Mr. Hoffman that Mr. Feren was engaged in the alleged activities, this information would not change the conclusion that the Complaint was filed with a maliciousness intent. The alleged telephone call, like the letter, was anonymous. Mr. Hoffman's alleged comment did not include any explanation concerning the basis for the statement. Mr. Colon should have at least inquired of Mr. Hoffman why he believed that Mr. Feren had been acting in the manner allegedly described by Mr. Hoffman.
59. Mr. Colon's ill will toward Mr. Feren was so severe, that he was willing to make charges against Mr. Feren based upon an anonymous, unverified tip and without regard to any harm to Mr. Feren's reputation should the allegations be untrue.
E. The Complaint, as Amended, was Frivolous and Without
Basis in Law or Fact.
60. The evidence proved that the specific acts alleged by Mr. Colon in the Complaint, as amended, did not occur. Mr. Feren has not handled title closings with Universal Title Insurors. The evidence even failed to prove that Universal Title Insurors is a subsidiary of Lennar Corporation or that Mr. Feren has voted on matters involving Lennar Corporation. Therefore, the allegations raised by Mr. Colon were frivolous and without any basis in law or fact.
F. Attorney's Fees and Costs Incurred by Mr Feren.
61. The evidence in this case proved that the time spent on Mr. Feren's behalf by Mr. Michelson was reasonable. The evidence also proved that $125.00 is a reasonable hourly rate for such representation. The amount of the attorney fees sought in this case total $19,255.00. Based upon the weight of the evidence, the reasonable attorney fees in this case amount to $19,200.50. This amount is reasonable. No costs have been sought, or proved, by Mr. Feren.
62. As was the case in the Chapin Recommended Order and Final Order, the question arises in this case as to whether an award of attorney's fees in this matter should be limited to the actual amount expended by Mr. Feren or the actual amount for which Mr. Feren was liable. In the Chapin Recommended Order the undersigned concluded that, as a matter of law, no attorney fees or costs should be awarded because Orange County and not Ms. Chapin, the "person complained against", had "incurred" the fees and costs.
63. The decision in the Chapin Recommended Order was based upon the fact that Section 112.317(8), Florida Statutes, the authority for awarding fees and costs in Chapin and in this case, specifically states that an award of reasonable attorney's fees may be made for fees and costs "incurred by the person complained against." Ms. Chapin was the "person complained against". Giving the term "incurred" it's plain and ordinary meaning, it was concluded that the evidence in Chapin had failed to prove that Ms. Chapin had "incurred" any fees or costs. Instead, Orange County had provided Ms. Chapin's defense and paid the costs associated therewith.
64. The Commission rejected the foregoing conclusions of law in the Chapin Final Order. The Commission concluded, as was recognized in the Chapin Recommended Order, that the Legislature intended to punish persons who make malicious and baseless ethics complaints and to deter such conduct. The Commission then concluded that the Legislature could not have intended to exclude an award of fees and costs under Section 112.317(8), Florida Statutes, where the person complained against was represented by counsel provided by the governmental entity to which the person complained about was associated.
65. Although it is recognized that the conclusions of law reached by the Commission reached in the Chapin Final Order will ultimately govern this matter, the Chapin Final Order is not persuasive. While the result in Chapin may be the correct one, the conclusions of law supporting that result ignore the plain and unambiguous language used by the Legislature in Section 112.317(8), Florida Statutes. The Legislature, in adopting Section 112.317(8), Florida Statutes, included the term "incurred" even though this term is not included in other similar provisions of Florida law providing for an award of attorney fees. See Section 57.105, Florida Statutes. The Legislature presumably was aware of the provisions of Section 57.105, Florida Statutes, and the court decisions interpreting that law. Why then did the Legislature use the terms "incurred by the person complained against" in enacting Section 112.317(8), Florida Statutes, when such terms are no included in Section 57.105, Florida Statutes. The Commission's decision in Chapin ignores those terms and reduces them to a meaningless phrase.
66. Section 120.57(1)(b)9, Florida Statutes, requires hearing officers to enter recommended orders in cases such as this one and requires the hearing officer to make findings of fact and conclusions of law. The undersigned is not aware of any requirement of Chapter 120, Florida Statutes, that the conclusions of law reached by an agency in one case must be followed in subsequent cases heard by a hearing officer of the Division of Administrative Hearings. Therefore, and based upon the foregoing brief discussion of the Chapin case, it is concluded that the conclusions of law reached in the Chapin Recommended Order should apply to this case.
67. As in Chapin, the evidence in this case fails to support an award of attorney fees. As was the case in Chapin, Mr. Feren failed to meet his burden of proof that he "incurred" any fees in this matter. At best, the evidence proved that the City of Sunrise paid some, but not even all, of Mr. Michelson's fees. More importantly, the evidence failed to prove that Mr. Feren was liable at any time for any amount of attorney fees in this matter.
68. 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.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a Final Order dismissing the Petition for Attorney's Fees and Costs be DISMISSED.
DONE and ENTERED this 5th day of February, 1993, in Tallahassee, Florida.
LARRY J. SARTIN
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Filed with the Clerk of the
Division of Administrative Hearings
this 5th day of February, 1993.
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Mr. Feren's Proposed Findings of Fact
1-2 Accepted in 1.
3 Accepted in 3. The correct date is March 26, 1991
and not March 29, 1991.
4 Accepted in 4.
5 Accepted in 5, 8 and hereby accepted.
6 Accepted in 9-10.
7 Accepted in 11.
8 Accepted in 12.
9 See 40-44. The evidence failed to prove exactly
who "hired" Mr. Michelson.
10 Not supported by the weight of the evidence. The
only evidence concerning this matter consisted of
document that suggested that bills were provided to
the City of Sunrise. The documents were not
identified, authenticated nor explained. The only
credible evidence concerning the amount of attorney
fees was offered through the testimony of Mr.
Goren. That testionly dealt with the question of
the reasonable amount of time and fees for Mr.
Michelson's work. Evidence concerning who was
responsible for the fees and whether the fees were
paid was not offered by Mr. Feren.
11 See 41-44.
12 Accepted in 21 and 24.
13 Accepted in 30.
14 Accepted in 29.
15 See 24-27 and 29-32.
16 Accepted in 10-11.
17 Hereby accepted.
18 Not supported by the weight of the evidence.
19 Accepted in 21 and 24.
20-24, 26-28 These proposed findings of fact are cumulative and
unnecessary. Almost identical proposed findings of
fact have already been made. Proposed finding of
fact 23 is not supported by the weight of the
evidence. Mr. Colon did rely on something besides
the anonymous letter. See findings of fact 16-18.
25 See 28.
29 Hereby accepted.
30 See 45.
31 Primarily a summary of testimony. See 46.
32 Primarily a summary of testimony. See 35. The 5th
and 6th sentences are not relevant.
33-35 Hereby accepted.
36 Accepted in 33-34 and 36.
37 Accepted in 39. Whether Mr. Feren was caused
"great personal distress" is not the legal issue.
At issue is whether Mr. Colon acted with the intent
of injuring Mr. Feren's reputation.
38 These proposed findings of fact are cumulative and
unnecessary. Almost identical proposed findings of
fact have already been made. The second sentence
is not supported by the weight of the evidence.
39 Accepted in 33-34.
40 Accepted in 33-34 and 39.
41 Not supported by the weight of the evidence.
42 See 39.
43 Not supported by the weight of the evidence.
44 Accepted in 20.
Mr. Colon's Proposed Findings of Fact
1-2 Accepted in 1. Mr. Feren was elected in 1987 and
3 Not relevant to this proceeding. The decision in
this case did not depend on whether Mr. Colon
disclosed the Complaint to the media. Nor was any
evidence offered by the Mr. Feren to support such
an allegation. The last two sentences are not
supported by the weight of the evidence.
4 There is no proposed finding of fact 4.
5 The first sentence is not supported by the weight
of the evidence. Mr. Colon did contact Lennar
Corporation, the city clerk's office and Ms. Vega.
See 16-18. The evidence failed to prove that
Universal Title Insurors is a subsidiary of Lennar
6 Not supported by the weight of the evidence. See
7 16-18. The third sentence is not supported by the
weight of the evidence. See 29-32. The last two
sentences are not supported by the weight of the
8 Accepted, in part, in 3. Whether Mr. Colon
receives lots of anonymous letters is not relevant.
He also did not contact "various" city officials.
He contacted two. See 16 and 17. The last
sentence as "(d)" are not supported by the weight
of the evidence.
9 See 5.
10 Not supported by the weight of the evidence, not
relevant or conclusions of law.
11 Not relevant.
12 Not relevant and not supported by the weight of the
13 Although consistent with Mr. Colon's testimony, see
33-34. Mr. Colon's testimony was not "credible and
supported by the facts" in all respects.
14 Not supported by the weight of the evidence. See
15 There is no proposed finding of fact 15.
16 Not supported by the weight of the evidence.
17 Not supported by the weight of the evidence.
18 See 40-44.
19 Not supported by the weight of the evidence.
20 Not supported by the weight of the evidence.
21 Not supported by the weight of the evidence.
22 Not supported by the weight of the evidence and not
The remainder of Mr. Colon's proposed order beginning on page 14 consists of conclusions of law.
Stuart R. Michelson, Esquire
1111 Kane Concourse, Suite 517
Bay Harbor Islands, Florida 33154
11640 N.W. 30th Place
Sunrise, Florida 33323
Bonnie J. Williams
Commission on Ethics
Post Office Box 6
Tallahassee, Florida 32302-0006
Commission on Ethics
Post Office Box 6
Tallahassee, Florida 32302-0006
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.