04-004110FE Charles Osborne vs. Alexander J. Milanick Status: Closed Recommended Order on Friday, July 1, 2005.

Summary: Respondent filed an ethics complaint naming Petitioner before the Florida Commission on Ethics, which was dismissed by the Commission upon a finding of no probable cause. Petitioner demanded attorney`s fees. Recommend that Respondent pay attorney`s fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES OSBORNE, )

)

Petitioner, )

)

vs. ) Case No. 04-4110FE

)

ALEXANDER J. MILANICK, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on May 11, 2005, in Daytona Beach,

Florida.

APPEARANCES

For Petitioner: Martin A. Pedata, Esquire

Martin Pedata, P.A.

505 East New York Avenue, Suite 8

DeLand, Florida 32724

For Respondent: Gary S. Edinger, Esquire

305 Northeast First Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue is whether Respondent Alexander J. Milanick

should be required to pay attorney fees and costs in the amount

of $4,976.00 to Petitioner Charles Osborne to compensate

Petitioner for his defense of an ethics complaint filed with the

Florida Commission on Ethics.

PRELIMINARY STATEMENT

In a letter dated July 18, 2003, Respondent Alexander J.

Milanick (Dr. Milanick), through his attorney, James J. Kearn,

initiated an inquiry by the Florida Commission on Ethics

(Commission). The letter addressed certain actions of

Petitioner Charles Osborne (Mr. Osborne), taken while he was

mayor of the Town of Beverly Beach. The Commission, in a

Determination of Investigative Jurisdiction and Order to

Investigate dated September 26, 2003, determined that the

Commission should investigate the allegations made by Dr.

Milanick. In order to defend against these allegations,

Mr. Osborne retained Robert J. Riggio as his attorney.

Subsequent to the investigation, the Commission, in a

Public Report dated September 8, 2004, dismissed the complaint

on a finding of no probable cause.

Subsequently, Mr. Osborne filed a Petition for Costs and

Attorney Fees, which was filed with the Commission on October 1,

2004. Dr. Milanick filed his Objection to Respondent's Petition

for Costs and Attorney Fees, which was filed by the Commission

on October 29, 2004.

On November 12, 2004, the Commission forwarded the matter

to the Division of Administrative Hearings. A hearing was

scheduled for February 1, 2005. Pursuant to a Joint Emergency

Motion to Continue and Reschedule Hearing, the hearing was

rescheduled for April 19 and 20, 2005. Pursuant to Respondent's

Motion to Continue, the hearing was rescheduled for May 11 and

12, 2005, in Daytona Beach, and was heard on May 11, 2005.

At the hearing, Mr. Osborne testified in his own behalf and

presented the testimony of four witnesses and offered ten

exhibits into evidence, which were accepted. Dr. Milanick

testified in his own behalf and presented the testimony of four

witnesses and offered twenty exhibits into evidence and all were

accepted.

Official recognition was taken of Milanick v. Town of

Beverly Beach , 820 So. 2d 317 (Fla. 5th DCA 2001) and Milanick,

et al. v. Town of Beverly Beach, et al. , Case No. 00-288-CA

(Fla. 7th Jud. Cir.).

A Transcript was filed on June 10, 2005. Subsequently,

Petitioner and Respondent timely filed Proposed Recommended

Orders, which were considered in the preparation of this

Recommended Order.

References to statutes are to Florida Statutes (2004)

unless otherwise noted.

FINDINGS OF FACT

1. The Town of Beverly Beach, Florida has a population of

about 600 located in Flagler County, Florida. It is about one

mile from north to south, and occupies about .4 square miles.

It is bounded on the west by the Intracoastal Waterway and on

the east by the Atlantic Ocean. U.S. Highway A1A is the main

north-south route through the town.

2. Mr. Osborne is an aerospace engineer who served on the

Beverly Beach Town Commission from 1997 through March 1999. He

was mayor from March 1999 until 2001. He has lived at 2641

Osprey Circle, in Beverly Beach, in a home constructed at that

location, since 1995. This residence is closer to the southern

boundary of Beverly Beach than to the northern boundary.

3. Dr. Milanick is a dentist who, along with his brother

John, and a person named McGee, during times pertinent, owned

land immediately north of Beverly Beach. On the property then

and currently owned by Dr. Milanick, and east of A1A, is a

restaurant named the Shark House. The premises has also been

known as Crabby Joe's.

4. In 1995, Dr. Milanick applied to the Town Commission to

have his property, and that of his brother, and that of McGee,

annexed into the town limits of Beverly Beach. He did this by

asking a Mr. Taylor to do what was necessary to cause the

annexation to occur. Mr. Taylor thereafter filed a petition

with the Town Commission.

5. By Ordinance 95-9-4, the Town Commission, in 1995,

assented to the request and it was made effective November 15,

1995. The Ordinance purported to annex the Milanick property

into the Town of Beverly Beach and to zone it general

commercial. Mr. Osborne was not a member of the Town Commission

and was not mayor during this time.

6. The Ordinance, however, was defective in four ways.

The Ordinance purported to annex the property into Bunnell,

Florida; it was not properly signed by all commissioners; it was

not publicly noticed; and it did not provide a legal description

of the property. It was not filed with either the Flagler

County Clerk of the Court or the Florida Secretary of State.

7. The matter languished until 1997 when Dr. Milanick

determined that his property had not in fact been moved within

the boundaries of Beverly Beach. Dr. Milanick brought this to

the attention of the Town Commission in October 1997.

8. At a Town Commission meeting on December 3, 1997, the

Town Attorney stated that he had not had a chance to look into

the Milanick and Shark House issue. At a Town Commission meeting

on February 4, 1998, Dr. Milanick inquired as to the progress

being made on the annexation of his property and was told that

the Town Attorney would get with him and discuss the procedure.

Subsequently, the Town Attorney, Pat McCormick, suggested that

it would be necessary to start the process from the beginning if

the land was to be annexed.

9. At a Town Commission meeting on March 4, 1998, Mayor

Osborne stated that there was no benefit to the annexation of the

Shark House. One member of the Town Commission suggested that

they honor past commitments. Dr. Milanick was in attendance at

this meeting.

10. At a Town Commission meeting on May 5, 1999,

Dr. Milanick and his brother again attended the Town Commission

meeting and requested the annexation of their property and

discussed the procedure that would be necessary. At a Town

Commission meeting on June 2, 1999, a motion was made to go

forward with Ordinance 95-9-4 and to amend the official city map

and legal description to include the Shark House property. The

motion passed but Mayor Osborne vetoed it.

11. During a regular monthly meeting of the Town

Commission on July 7, 1999, James Kearn, an attorney retained by

Dr. Milanick, who was authorized to act for Dr. Milanick,

appeared and requested that the Commission direct the Town Clerk

to sign Ordinance 95-9-4 and to forward it to the county and the

state in order to determine if the Ordinance was valid. This

request was approved by the Town Commission. Mayor Osborne,

vetoed the measure. Thereafter, the veto was over-ridden by the

Commission.

12. At a Town Commission workshop on July 21, 1999, there

was additional discussion regarding the annexation of the Shark

House. Mr. Kearn accused Mayor Osborne of discussing the

Milanick annexation matter with Sid Crosby, Clerk of the Court of

Flagler County. Mayor Osborne denied the charge. The discussion

became heated and accusatory and Mayor Osborne threatened to have

the sheriff eject Mr. Kearn from the meeting.

13. Subsequent to the action of the Town Commission of

July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance

95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In

a memorandum dated July 26, 1999, Mr. Courtney reported to the

Town Commission that Mr. Crosby would not file Ordinance 95-9-4

because it was defective. One of the defects cited was that the

instrument purported to annex the land into the City of Bunnell,

Florida.

14. No creditable evidence was adduced which indicated

that Mayor Osborne visited Syd Crosby for the purpose of

preventing the recording of the annexation of Dr. Milanick's

property. Mr. Crosby concluded from the beginning that

Ordinance 95-9-4 was not recordable.

15. Mayor Osborne suggested some solutions which would

permit the annexation, including, re-submission of a proper

application. Over a period of time some "glitch" bills were

considered which would annex the land. However, none passed.

16. Mr. Kearn attended the Town Commission meeting on

February 2, 2000, and the minutes of the meeting noted that he

was accompanied by "a person taking notes." Following this

meeting, i n a February 16, 2000, letter to Dennis Knox Bayer,

Town Attorney, Mr. Kearn claimed that Mayor Osborne had a

personal vendetta against Dr. Milanick, and that he was

exercising dictatorial efforts to prevent citizens to speak at

town meetings. He further demanded that ". . . all Town

officials, including you as their representative, refrain from

saying things that are simply and blatantly false, which only

serve to incite Mr. Milanick."

17. At a town meeting on March 1, 2000, Mr. Kearn

complained about the annexation not being on the agenda and Mayor

Osborne stated that a request for inclusion on the agenda had not

been made in writing. Mr. Kearn was permitted to speak for three

minutes, he spoke for three minutes, and immediately thereafter

Mayor Osborne adjourned the meeting.

18. On or about April 25, 2000, Dr. Milanick and his

brother John, filed suit against the Town of Beverly Beach and

Mayor Osborne personally, in the Circuit Court of the Seventh

Judicial Circuit in and for Flagler County. The suit alleged

that the Town of Beverly Beach and Mayor Osborne violated the

civil rights of the Milanicks. The suit alleged that Mayor

Osborne had a vendetta against Dr. Milanick and should be held

personally liable to Dr. Milanick.

19. The Circuit Court dismissed the civil rights count

against Mayor Osborne and the town, and this dismissal was

affirmed by the Fifth District Court of Appeal. The Circuit

Court also dismissed the mandamus action, finding that the 30-

day limitations' period for filing a petition for a writ of

certiorari applied and that a prima facie case for mandamus had

not been established. The Fifth District Court of Appeal, on

October 19, 2001, remanded that count to the Circuit Court with

directions to grant the petition for mandamus, but upheld the

dismissal of the civil rights counts.

20. On January 23, 2003, the Circuit Court entered its

Alternative Writ of Mandamus. The Writ incorporated the

allegations of Plaintiff's Complaint by reference and ordered

that the Defendants take whatever steps necessary to sign and

record Ordinance 95-9-4. When this occurred, Mr. Osborne was no

longer an elected official of Beverly Beach.

21. The Circuit Court complaint filed by Dr. Milanick

recited that the recording of the ordinance did not occur

because Mayor Osborne conferred with the Clerk of the Court to

block recording of the ordinance. The adoption of the matters

recited in the complaint as true, by the appellate court, does

not make them proven facts because no evidence was taken in the

case. The complaint, moreover, alleges actions, such as being

tyrannical and peevish, which could not in any event constitute

a violation of a person's civil rights. The complaint does not

allege that Mr. Osborne took any action, as mayor, because he

wished to obtain a personal advantage and does not allege that

the annexation of Dr. Milanick's real property would affect

Mr. Osborne's real property in terms of value or otherwise.

22. As of the date of the hearing, Dr. Milanick's property

had not been annexed into the corporate limits of Beverly Beach.

23. Mr. Osborne, while serving as mayor, was not helpful

in causing the annexation to occur and it is apparent that his

relations with Mr. Kearn were not amicable. Mr. Osborne, while

serving as mayor was irascible, intimidating, and controlling.

24. Mr. Osborne believed that the annexation would bring

no benefit to Beverly Beach and believed it would, "change the

town's character." Mr. Osborne gained nothing directly or

personally by preventing, or making difficult, the annexation of

Dr. Milanick's land. As an elected official, he was permitted

to advance his own ideas with regard to what he believed would

be best for Beverly Beach and for himself as a citizen and

property owner of Beverly Beach. He could act in this regard so

long as he did not secure a special privilege, benefit, or

exemption for himself, as opposed to a general benefit.

25. A letter signed by Mr. Kearn dated July 18, 2003,

accompanied by an affidavit signed by Dr. Milanick, requested

that the Commission conduct an investigation into the activities

of Mr. Osborne during the period when he was the mayor of

Beverly Beach. For reasons which become apparent hereafter,

this letter, which had the words "Via Airborne Overnight Mail"

stamped on its face, will be hereinafter referred to as the

"Airborne" letter. The following statements were contained in

the "Airborne" letter:

Specifically, while Mayor, Charles Osborne

simply refused to sign and record the

ordinance duly adopted by the Town, which

annexed land into the Town as a general

commercial, simply because he personally did

not want anymore general commercial land in

the Town, which could jeopardize his

personal investment in the Town.

He also met with the former Clerk of Court

for Flagler County, Mr. Syd Crosby, to

persuade the Clerk to not record anything

regarding the annexation of such land, in

order to prevent the completion of the

annexation.

He thus plainly put his purely personal

concerns, ahead of his duties as mayor, and

fiduciary duty to the citizens of Beverly

Beach.

The mayor still refused to oblige the Town's

request, or to honor the duly adopted

resolution, for his own personal reasons,

irrespective of his duties as mayor to the

citizens of Beverly Beach....

Even worse, he met with the former Clerk of

Circuit Court of Flagler County, Mr. Syd

Crosby, to attempt to persuade Mr. Crosby to

not record any ordinance presented by the

Town, annexing the Milanicks' property.

Mayor Osborne repeatedly ignored and defied

the will of the Town to complete the

annexation, to pursue his own personal

agenda, i.e., stopping annexation of land as

general commercial.

26. The "Airborne" letter then parroted items that

indicated that the Circuit Court had found to be true, as

follows:

Additionally, Mr. Osborne simply does not

allow anyone to speak with whom he

disagrees, or to address matter that he does

not want addressed.

Mayor Osborne has...

a. refused to put the Milanicks' matters or

requests on the Town Council agenda;

b. taken action regarding the Milanicks'

properties, without any notice to the

Milanicks, or without knowledge by the

Milanicks that such action was being taken

against their property, as required by the

Town's own law;

c. refused to allow the Milanicks to speak

to matters that affect their personal and

property interests, once the Town Council

had opened discussion regarding the

annexation and zoning of the Milanicks'

properties;

d. blatantly and willfully misrepresented

the Milanicks' positions, actions, and

statements at Town meetings, beyond the

scope of the privilege normally attendant to

a politician's statements at such meeting,

in order to defeat the Milanicks' requests,

and to harm the Milanicks;

e. refused to honor Ordinances passed by

previous Town councils, as detailed above;

f. refused to follow through with

completing the annexation approved by

previous council members of the Town;

g. worked to undercut the recording of the

completion of the signing of the ordinance,

and the recording of the ordinance, to

complete the annexation, all as detailed

above.

27. The matters in paragraph 25, are misleading because

they indicate that the Circuit Court found these items to be

true when in fact no evidentiary proceedings with regard to

these items occurred in the Circuit Court.

28. Moreover, the Complaint alleged several matters which

Dr. Milanick either knew to be untrue, or should have known that

it was untrue. Specifically, the Complaint alleged that Mayor

Osborne "did not want anymore general commercial land in the

Town, which could jeopardize his personal investment in the

Town." This allegation implies that he was acting for some

personal and specific reason financial reason, as opposed to a

general opposition to development. This allegation, had it been

true, would have been actionable pursuant to Section 112.313(6)

29. The Complaint also alleged that Mayor Osborne met with

Syd Crosby in order to prevent the annexation of the Milanicks'

property. This allegation, coupled with the allegation as to a

financial interest, bolsters the asserted improper purpose.

30. Based on this Complaint, the Executive Director of the

Commission issued a Determination of Investigative Jurisdiction

and Order to Investigate, which was filed with the Commission on

September 26, 2003, and assigned Complaint Number 03-091.

31. Investigator Travis Wade of the Commission was

directed to conduct a preliminary investigation into whether or

not there was probable cause to believe a violation of Section

112.313(6), Florida Statutes, had occurred. That section reads

as follows:

(6) Misuse of public position.-- No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with s.

104.31.

32. Mr. Osborne learned of the Determination of

Investigative Jurisdiction and Order to Investigate and

thereafter retained Robert J. Riggio, of the firm of Riggio &

Mitchell, P.A., located in Daytona Beach, as his attorney.

Mr. Riggio worked on the case from October 24, 2003, until

September 29, 2004. He charged $150 per hour, which is below

the customary charge in the Daytona Beach area, and the hourly

rate therefore, is reasonable. He expended 33 hours which is

reasonable. He expended $180 in costs. These expenditures

totaled $4,976 which was billed to Mr. Osborne. He paid the

bill.

33. On April 6, 2004, a second letter dated July 18, 2003,

was sent to the Commission by Mr. Kearn by facsimile. This will

be referred to as the "Fax" letter. This was precipitated by a

request to Mr. Kearn from Investigator Wade that he provide a

copy of the original letter.

34. The "Fax" letter differed from the "Airborne" letter.

In the second paragraph of the "Fax" letter the following

sentence appears: "Specifically, while Mayor, Charles Osborne

simply refused to sign and record the ordinance duly adopted by

the Town, which annexed land just north of Mr. Osborne's

manufactured home . . . ." And in the fourth paragraph of the

"Fax" letter, the following sentence appears: "The Mayor

objected, because it would serve to annex land as general

commercial, just north of his own manufactured home." It

further stated that his motivation was ". . . stopping land as

commercial near him."

35. Mr. Kearn testified under oath that when Investigator

Wade was discussing the case with him, that he, Mr. Kearn,

realized the "Fax" letter was a draft that had been sent to

Investigator Wade in error. Mr. Kearn said that the "Fax"

letter was a draft that had subsequently been edited by

Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not

live in a manufactured home located immediately south of the

property which was sought to be annexed.

36. Mr. Kearn said that it the "Airborne" letter was

supposed to be the operative document. He said that he realized

that the "Fax" letter was being used by Investigator Wade when

he was talking to him on the telephone on June 8, 2004, and that

he advised Investigator Wade of the error. He testified that he

made it perfectly clear to Investigator Wade that the "Airborne"

letter was the operative document.

37. Investigator Wade's Report of Investigation, however,

recites that during the telephone interview of Mr. Kearn, that

Mr. Kearn advised him that Mr. Osborne resided in a mobile home

community immediately south of the Milanick property, while he

served as mayor and that Mr. Osborne's interest in stopping the

annexation was to use his position for his personal benefit.

38. At the hearing, Investigator Wade stated under oath

that Mr. Kearn advised him during their telephone conversation

that Mr. Osborne resided in a mobile home community immediately

south of the Milanick property while he was serving as mayor.

Investigator Wade stated that the issue of whether or not

Mr. Osborne lived in the immediate vicinity of the Milanick

property was the key element in his investigation because if

that were true, stopping the annexation could be a personal

benefit to Mr. Osborne. Mr. Wade was a disinterested and

credible investigator and witness and his testimony is taken as

true and accurate.

39. Mr. Osborne did not live in either a manufactured or

mobile home. The type of home he lived in is irrelevant. What

is relevant is that Mr. Osborne did not live adjacent to, or in

the vicinity of, the Milanick property. In fact, Mr. Osborne

did not live near the north side of town. He lived closer to

the south side of town and it is unlikely that the annexation of

the Milanick property would have an economic effect on

Mr. Osborne's property.

40. Mr. Kearn was aware of Mr. Osborne's resident address

because he had him served with a civil suit at his residence in

2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile

home community, or in a manufactured home near the Milanick

property, or anywhere near it. Nevertheless, he asserted that

to be true when he talked to Investigator Wade.

41. Mr. Kearn is the attorney and agent of Dr. Milanick.

Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that

the actions of Mr. Kearn, are the actions of Dr. Milanick.

42. The Commission, found in their Public Report, dated

September 8, 2004, that Mr. Osborne's opposition to the

annexation was not connected to any desire to secure a benefit

for himself. The Commission dismissed the Milanick complaint on

a finding of "no probable cause."

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. and Fla. Admin. Code R. 34-

5.0291.

44. Section 112.317(8) provides as follows:

112.317. Penalties

(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

by filing the complaint with knowledge that

the complaint contains one or more false

allegations or with reckless disregard for

whether the complaint contains false

allegations of fact material to a violation

of this part, the complainant shall be

liable for costs plus reasonable attorney's

fees incurred in the defense of the person

complained against, including the costs and

reasonable attorney's fees incurred in

proving entitlement to and the amount of

costs and fees. If the complainant fails to

pay such costs and fees voluntarily within

30 days following such finding by the

commission, the commission shall forward

such information to the Department of Legal

Affairs, which shall bring a civil action in

a court of competent jurisdiction to recover

the amount of such costs and fees awarded by

the commission.

45. Florida Administrative Code Rule 34-5.0291, provides

as follows:

34-5.0291. Award of Attorney's Fees.

(1) If 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 by filing the complaint

with knowledge that the complaint contains

one or more false allegations or with

reckless disregard for whether the complaint

contains false allegations of fact material

to a violation of the Code of Ethics, the

complainant shall be liable for costs plus

reasonable attorney's fees incurred in the

defense of the person complained against,

including the costs and reasonable

attorney's fees incurred in proving

entitlement to and the amount of costs and

fees.

(2) The Commission shall make such a

determination only upon a petition for costs

and attorney's fees filed with the

Commission by the public officer or employee

complained against within 30 days following

a dismissal of the complaint. Such petition

shall state with particularity the facts and

grounds which would prove entitlement to

costs and attorney's fees. Staff shall

forward a copy of said petition to the

complainant by certified mail, return

receipt requested.

(3) If the facts and grounds alleged in the

complaint are not sufficient to state a

claim for costs and reasonable attorney's

fees, the Commission shall dismiss the

petition after an informal proceeding. If

it appears that the facts and grounds are

sufficient, the Chair after considering the

Commission's workload, shall direct that the

hearing of the petition be held before the

Division of Administrative Hearings, the

full Commission, or a single Commission

member serving as hearing officer.

Commission hearing officers shall be

appointed by the Chair. The hearing shall

be a formal proceeding under Chapter 120,

F.S., and the Uniform Rules of the

Administration Commission, Chapter 28-106,

F.A.C. All discovery and hearing procedures

shall be governed by the applicable

provisions of Chapter 120, F.S., and Chapter

28-106, F.A.C. The parties to the hearing

shall be the respondent and the

complainant(s), who may be represented by

legal counsel.

(4) The respondent has the burden of

proving the grounds for an award of costs

and attorney's fees.

(5) If the petition is heard by the full

Commission, it shall direct staff to prepare

an order complying with Chapter 120, F.S.,

incorporating its findings and either

granting or denying the petition. The draft

of that order shall be modified or adopted

at the next Commission meeting.

(6) If the petition is heard by a

Commission hearing officer or, DOAH

administrative law judge, in order to assist

the Commission in evaluating any exceptions

that may have been filed, Commission staff

will provide a draft final order analyzing

the exceptions. Copies shall be provided to

the parties prior to the final hearing.

46. Mr. Osborne has the burden of proof. Fla. Admin. Code

R. 34-5.0291(4).

47. Mr. Osborne must prove entitlement to costs and

attorney fees by a preponderance of the evidence.

§ 120.57(1)(j), Fla. Stat.

48. The requirement that the complaint be filed with a

malicious intent to injure the reputation of an officer, by

filing the complaint with knowledge that the complaint contains

one or more false allegations, or with reckless disregard for

whether the complaint contains false allegations of fact,

represents a change from the law prior to 1995.

49. The Commission has held that the change which inserted

the requirement of "knowledge" or "reckless disregard" for the

truth, means that the "actual malice" standard of New York Times

v. Sullivan , 376 U.S. 254 (1964), is applicable to proving

entitlement to attorney fees and costs in proceedings brought

pursuant to Section 112.317(8). In re Michael Addicott ,

Florida Commission on Ethics (COE Case No. 05-207 April 26,

2005).

50. In Addicott , the Administrative Law Judge found that

the complainant did not have actual knowledge that any of the

allegations were false. On the other hand, in the present case

it is clear that Mr. Kearn knew that Mr. Osborne did not live

immediately south of the Milanick property. Because a material

fact was falsely alleged, the reckless disregard issue does not

have to be addressed.

51. It is clear in this case that an antagonistic

relationship developed between Mr. Kearn and Mr. Osborne over a

period of time. This was manifested by testy exchanges at Town

Commission meetings and a threatening and accusatory letter

directed to the Town Attorney stating that the delay in

annexation was serving to incite Mr. Milanick. At some point,

the antagonism degenerated into a malicious attempt to cause

Mr. Osborne trouble. This was evidenced by the civil rights suit

filed seeking to make Mr. Osborne personally liable, and by the

complaint filed with the Commission.

52. Mr. Osborne has proved entitlement to attorney fees in

accordance with Section 112.317(8).

53 . In Florida Patient Compensation Fund v. Rowe , 472 so.

2d 1145 (Fla. 1985), the Court adopted the criteria set forth in

Disciplinary Rule 2-106(6) (now renumbered 4-1.5) of the Florida

Bar Code of Professional Responsibility to be used in

determining reasonable attorney's fees. The criteria to be

considered include: (1) the time and labor required, the

novelty and difficulty of the question involved and the skill

requisite to perform the legal services properly; (2) the

likelihood, if apparent to the client, that the acceptance of

the particular employment will preclude other employment by the

lawyer; (3) the fee customarily charged in the locality for

similar services; (4) the amount involved and the results

obtained; (5) the time limitations imposed by the client or of

the circumstances; (6) the nature and length of the professional

relationship with the client; (7) experience, reputation and

ability of the lawyer or lawyers performing the services; (8)

whether the fee is fixed or contingent.

54. Using the above standard, the fees sought are

reasonable.

55. It is the Commission's responsibility to provide a

hearing for Mr. Osborne to establish fees and costs which were

incurred after the hearing. Kaminsky v. Lieberman , 675 So. 2d

261 (Fla. 4th DCA 1996).

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Florida Commission on Ethics enter an

order requiring Dr. Milanick to pay Mr. Osborne $4,976.00.

DONE AND ENTERED this 1st day of July, 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of July, 2005.

COPIES FURNISHED :

Kaye Starling, Agency Clerk

Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

James J. Kearn, Esquire

James J. Kearn, P.A.

138 Live Oak Avenue

Daytona Beach, Florida 32114-4912

Gary S. Edinger, Esquire

305 Northeast First Street

Gainesville, Florida 32601

Martin A. Pedata, Esquire

Martin Pedata, P.A.

505 East New York Avenue, Suite 8

DeLand, Florida 32724

Robert J. Riggio, Esquire

Riggio & Mitchell, P.A.

400 South Palmetto Avenue

Daytona Beach, Florida 32114

Bonnie J. Williams, Executive Director

Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phillip C. Claypool, General Counsel

Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Virlindia Doss, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.