09-004672F Christine Coke vs. J. Curtis Boyd Status: Closed Recommended Order on Thursday, October 22, 2009.

Summary: Petitioner failed to establish by competent substantial evidence the amount of the attorney's fees and costs being sought.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE COKE, )

)

Petitioner, )

)

vs. ) Case No. 09-4672F

)

J. CURTIS BOYD, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case before

Administrative Law Judge Eleanor M. Hunter of the Division of

Administrative Hearings, on September 24, 2009, and on

October 15, 2009, at video teleconferencing sites in Fort Pierce

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Richard E. Coates, Esquire

200 West College Avenue, Suite 311B

Tallahassee, Florida 32301

For Respondent: Patrick Farrell, Esquire

c/o J. Curtis Boyd

120 Orange Avenue

Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

The issue is whether Respondent should be required to pay

attorney's fees and costs to Petitioner to compensate her for

the defense of an ethics complaint Respondent filed against her

with the Florida Commission on Ethics.

PRELIMINARY STATEMENT

On June 23, 2009, Respondent filed Ethics Commission

Complaint No. 09-087 and a two-page letter with the Florida

Commission on Ethics ("Commission"). The letter addressed

certain actions taken by Petitioner in her position as a Fort

Pierce City Commissioner. At its meeting on July 24, 2009, the

Commission dismissed the complaint for lacking legal

sufficiency.

In a letter dated August 25, 2009, the Commission referred

the case to the Division of Administrative Hearings for the

assignment of an Administrative Law Judge to conduct a hearing

on Petitioner's Petition for Costs and Attorney's Fees.

Initially set for September 24, 2009, the hearing was convened

but continued, at the request of the Respondent because the

Commission inadvertently failed to obtain the services of a

court reporter. The final hearing was concluded on October 15,

2009.

At the hearing, Petitioner presented the testimony of the

Respondent and Petitioner's Exhibits 1, 2, and 3, which were

received into evidence. Respondent presented no witnesses or

exhibits, based on a ruling on the inadmissibility of

Petitioner's proffered Exhibit 4. No transcript of the hearing

was ordered, and no proposed orders were requested or offered.

FINDINGS OF FACT

1. Respondent J. Curtis Boyd ("Respondent" or "Mr. Boyd")

owns property located at 111 Boston Avenue, Fort Pierce,

Florida, that he bought in 2002 or 2003. The house on the

property was once owned by the late Florida Governor Dan

McCarty.

2. Mr. Boyd testified that he has been offered $650,000 to

sell the property with the house on it and $1.2 million to sell

the land without the house.

3. Mr. Boyd requested and received permission to demolish

the house by a 5-to-1 vote of the Historic Preservation Board.

That decision was apparently revoked by vote of the City

Commission, including that of Petitioner Christine Coke

("Petitioner" or "Ms. Coke").

4. A complaint filed by Mr. Boyd with the State Attorney

accusing Ms. Coke of "misuse of authority" was dismissed on

July 6, 2009.

5. Complaint No. 09-087, filed with the Florida Commission

on Ethics ("Ethics Commission") on June 25, 2009, was dismissed

on July 29, 2009.

6. Mr. Boyd testified that, after the vote of the Historic

Preservation Board, he believed Ms. Coke found some unnamed

person to appeal the decision to the City Commission. He also

testified that, some time later, he found out that the house was

not in the historic district and that he did not need permission

to demolish it.

7. Mr. Boyd testified that he had overdue property taxes,

but that he paid the back taxes and had the assessed value of

the property reduced to lower his taxes because of the poor

condition of the house.

8. The City of Fort Pierce has waived approximately

$70,000 in code enforcement fines on the property, and offered

to pay $5,000 for a design fee, but Mr. Boyd noted that the

design fee will not go to him but to an architect.

9. Mr. Boyd alleges, with no supporting evidence, that the

actions taken by Ms. Coke and others are intended to force him

to sell the property to a friend of hers.

10. Based on Mr. Boyd's testimony it is impossible to

conclude, as he alleged, that Ms. Coke persuaded some one to

appeal the decision of the Historic Preservation Board to the

City Commission.

11. There is also no evidence to support or refute Mr.

Boyd's allegation that Ms. Coke was motivated by trying to force

him to sell his property to a friend of hers.

12. Related to costs and fees, Petitioner's counsel

proffered an affidavit of an attorney, filed with the Division

of Administrative Hearings on September 23, 2009, representing

that the attorney had reviewed the files of Petitioner's counsel

and agreed that fees of $1,447.50 for one billing period and of

$1,765.00 for another billing period were reasonable. In the

absence of supporting testimony and after Petitioner rested her

case, the objection to the admission of the affidavit as being

untimely filed and unsupported hearsay was sustained.

13. There is no competent substantial evidence that

Respondent either made or did not make a complaint against

Petitioner with knowledge that the allegations were false or

with reckless disregard for whether the complaint contained

false allegations. There is also no competent substantial

evidence of the amount of fees and costs incurred by Petitioner.

CONCLUSIONS OF LAW

14. 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. Admn. Code R. 34-

5.092

15. Section 112.317(7), Florida Statutes (2009) provides

as follows:

112.317. Penalties

(7) 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

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 complaint fails to

pay such costs and fees voluntarily within

30 days following such findings 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.

16. Florida Administrative Code Rule 34-5.0291 also

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.

* * *

(4) The respondent has the burden of

proving the grounds for an award of costs

and attorney's fees.

17. Petitioner [Respondent before the Commission] has the

burden of proof by a preponderance of the evidence in this

proceeding. Fla. Admn. Code R. 34-5.0291(4), and §

120.57(l)(j), Fla. Stat. (2009).

18. Petitioner must prove, by establishing the elements in

Section 112.317(7), Florida Statutes (2009), that she is

entitled to costs and attorney's fees.

19. Petitioner failed to provide competent substantial

evidence of her entitlement to fees and costs, and of the amount

that has been incurred in fees and costs. See Florida Patient's

Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985); and

Standard Guaranty Ins. Co. v. Quanstrom , 555 So. 2d 828 (Fla.

1990).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

Recommended that the Florida Commission on Ethics dismiss

the Petition for Attorney's Fees and Costs filed by Christine

Coke.

DONE AND ENTERED this 22nd day of October, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of October, 2009.

COPIES FURNISHED :

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Richard E. Coates, Esquire

200 West College Avenue, Suite 311B

Tallahassee, Florida 32301

Patrick Farrell, Esquire

c/o J. Curtis Boyd

120 Orange Avenue

Fort Pierce, Florida 34950

Philip C. Claypool, Esquire

Executive Director and General Counsel

Florida Commission on Ethics

3600 Macclay Boulevard, South

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

James Peterson, Esquire

Linzie Bogan, Esquire

Advocates for the Commission

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.