04-000518FE Glenn Singer vs. Robert Nieman Status: Closed Recommended Order on Thursday, June 2, 2005.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent maliciously or with reckless regard for the truth filed the complaint against Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN SINGER, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0518FE

)

ROBERT NIEMAN, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on Nov ember 2, 2004, in Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: James J. Birch, Esquire

Law Office of Stuart R. Michelson

200 Southeast 13 th Street

Fort Lauderdale, Florida 33316

For Respondent: Robert Nieman, p ro s e

9731 Southwest 12 th Street

Pembroke Pines, Florida 33026

STATEMENT OF THE ISSUE

Whether the Petitione r, Glenn Singer (Petitioner or Singer)

is entitled to attorney ' s fees and costs from the

Complainant/Respondent, Robert Nieman (Respondent or Nieman),

pursuant to Section 112.317(8), Florida Statutes (2004).

PRELIMINARY STATEMENT

This case began on June 10, 2002, when the Respondent

executed an ethics Complaint against the Petitioner. The

Complaint alleged four incidents concerning the Petitioner and

alleged acts committed while Singer held a seat on the Golden

Beach Town Council. More specifically, th e Complaint alleged

that Singer had paid a reduced amount for his building permit

because the structure was under valued for building permit

purposes; had constructed a brick driveway without a permit and

without paying for permit fees; had assaulted a tem porary

security guard employed by the town , but the investigation was

dropped; and had entered into a verbal agreement with the

construction manager on an adjoining property to vote for a

variance in exchange for allowing Singer to move his boat over

five feet. After a staff attorney for the Florida Commission on

Ethics (Ethics Commission) requested additional information

concerning the matter, the Respondent executed a Complaint

Amendment on July 19, 2002.

The Complaint Amendment included three allegat ions. The

first allegation related to the brick driveway at Petitioner’s

home. The Respondent alleged that the Petitioner did not pay an

appropriate building permit fee because the value of the work

done was greater than the value of the permit. The sec ond

allegation claimed that a contractor was given a town job

because the same entity had given the Petitioner a reduced price

on his personal driveway. The third allegation maintained that

the Petitioner had assaulted a private security guard who did

not press charges despite an initial report that he would press

charges. The Respondent theorized that the Petitioner had

somehow used his position to make the investigation “go away.”

On December 6, 2002, a Determination of Investigative

Jurisdiction and Order to Investigate was entered. On or about

October 27, 2003, the Respondent executed a Request to Withdraw.

That document stated: “I no longer wish to pursue the Complaint

that was issued by myself.” Nevertheless, after an

investigation and on the r ecommendation of the Ethic

Commission’s Advocate, the Ethics Commission entered a Public

Report on December 9, 2003. The Public Report addressed the

merits of the Complaint (and the Complaint Amendment) and

dismissed the matter. The Public Report found n o probable cause

to believe that the Petitioner had violated ethics statutes.

Accordingly, the Respondent’s Complaint was effectively closed.

On January 5, 2004, the Petitioner filed the Fee Petition

that is the subject of the instant case against the Respondent.

Petitioner maintains he is entitled to attorney’s fees and costs

pursuant to Section 112.317(8), Florida Statutes. The Fee

Petition alleged that Respondent had filed the Complaint with

the Ethics Commission with “a malicious intent to injure the

reputation of the Petitioner by filing the Complaint with

knowledge that the Complaint contained one or more false

allegations, or that the Complaint was filed with reckless

disregard for whether the Complaint contained false allegations

of fact materi al to a violation of the Florida Ethics Code.”

The case was forwarded to the Division of Administrative

Hearings for formal proceedings on February 12, 2004.

At the hearing, the Petitioner testified and presented

testimony from Robert Neiman, Samuel Go ren, and Linda Epperson.

The Petitioner’s Exhibits 1 through 12 were admitted into

evidence. The Respondent also testified and offered testimony

from Rosemary Wascura. The Respondent’s Exhibits 1 through 4,

6A, 6C, and 7 were also admitted into evidence . Respondent’s

Exhibit 6B was proffered for the record.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on February 14, 2005. The

parties requested an extension of time to file proposed

recommended orders. That request was granted. Both parties

timely filed post - hearing proposals that have been fully

considered in the preparation of this Recommended O rder.

FINDINGS OF FACT

1. On June 10, 2002, the Respondent executed a Complaint

that was filed with the Ethics Commission against the

Petitioner. At the time of the filing, the Respondent was on

paid administrative leave or suspension from the P olice

D epartment of the Town of Golden Beach (Town). Nevertheless,

the Respondent remained employed by the Town and at the time of

hearing in this cause the Respondent was employed as a police

sergeant.

2. Immediately prior to filing the Complaint against the

Petitioner the Respondent served as the interim police chief for

the Town. At all times material to this case t he Petitioner was

a councilman serving on the Town’s governing council. As such,

the Petitioner was subject to the ethics provisions governed by

the Ethics Commission.

3. The Petitioner and the Respondent have known one

another since childhood. Prior to the incidents complained of

herein the two had considered themselves cordial acquaintances.

4. The Respondent’s Complaint itemized four concerns that

he believed demonstrated violations of ethics provisions. The

specifics of the Complaint are set forth in Petitioner’s

Exhibit 1. In general, the Respondent believed that the

Petitioner had used his position as a Town councilman to obtain

a building permit at a lesser value than should have been

reported. He based this assertion on information told to hi m by

persons working within the Town who overheard comments made by

the Petitioner and a building official.

5. The Respondent believed that Linda Epperson, who has

20 - plus years of experience in the construction business, had

opined that the value of the work to be performed at the

Petitioner’s home greatly exceeded the value set forth in the

permit sought. Ms. Epperson’s comments regarding the permit

issue were overheard by another Town employee, Rosemary Wascura.

6. At hearing, Ms. Epperson denied ma king the comments.

Ms. Epperson is still employed by the Town and would like to

continue her employment until her retirement vests (another four

years). Ms. Wascura (who is a personal friend of the

Respondent’s) does not work for the Town any longer.

Ms . Wascura’s testimony was credible and persuasive as to the

incident regarding the conversation between the Petitioner and a

building official. Although it is not concluded the Petitioner

used his position to influence the building official and receive

a reduced permit cost, it is found that the factual information

upon which the Respondent relied in making such assertion was

grounded in an eyewitness account of an incident and not mere

speculation.

7. The second allegation of the Complaint also dealt wi th

a subcontractor who had performed services for the Petitioner at

his home. That subcontractor was subsequently awarded a Town

contract for brick pavers to be installed at the entrance to the

Town. The basis for the Respondent’s concern regarding this

allegation stemmed from unsealed bids that were submitted for

the brick paver project. According to Ms. Wascura the

subcontractor who had provided a favorable job for the

Petitioner was to receive the bid on the Town job. Although

wrongdoing on the Petit ioner’s part was not substantiated, the

basis for the Respondent’s assertion was supported by the

information he received from Ms. Wascura.

8. In as much as Ms. Wascura was privy to comments from

the building officials at the time, it was reasonable for

Respondent to believe that something untoward had occurred when

the same subcontractor received the Town’s bid , e specially when

the bid amount was later changed to cover a shortfall on the

construction cost (the increased amount would have resulted in

the subcontractor not being the lowest bidder after all).

9. As to the third assertion in the Complaint, the

Respondent claimed that the Petitioner had physically assaulted

a temporary security guard employed by the Town while the Police

Guardhouse was bei ng built. The Respondent based this claim on

the personal observations he made when the security guard

reported the incident, the pictures he took of the guard

(depicting the damaged shirt), and the identification of the

Petitioner as the perpetrator that the victim made from a

photograph. Although the assault was never fully investigated

(the security guard could not be located and the matter was

dropped), the Respondent had a reasonable basis to believe some

inappropriate act had occurred and that the P etitioner could be

involved.

10. Finally, the fourth claim set forth in the

Respondent’s Complaint alleged that the Petitioner had changed a

vote on a variance request after being called aside by someone

known as “Vinnie” in this record. According to e yewitnesses to

the incident, the Petitioner voted against Vinnie’s variance

then changed his vote after Vinnie whispered so mething in the

councilman’s ear, and the two left the room briefly. When the

Petitioner returned to the council table, he changed hi s vote to

favor Vinnie’s variance.

11. Although it is not concluded the Petitioner did

anything improper in changing his vote, or that the variance

would not have received sufficient favorable votes to pass even

without the Petitioner’s vote, it is clea r that the Respondent

thought the activity was highly unusual and suspect. The Town

council meetings are videotaped. A videotape of the proceeding

disproving the account of the witnesses was not provided. It is

unusual to allow anyone to approach the co uncil seats to

privately discuss anything with a council member during a

council session.

12. As for why the Petitioner would change his vote, the

Respondent believed it had to do with a boat mooring that the

Petitioner sought. Although the Petitioner di d not own a boat

at the time, the gossip among Town workers had been that the

Petitioner wanted to be able to moor his boat at a certain angle

to avoid an impeded view of the waterway. In return, he

allegedly supported Vinnie’s variance. Although the rum or was

unfounded, when the story was viewed in light of the

Petitioner’s actions with Vinnie at the council meeting, it

formed a reasonable basis for Respondent’s concerns.

13. On July 9, 2002, the staff attorney for the Ethics

Commission sent Respondent a letter requesting additional

information regarding the Complaint. The forms included with

that letter constitute the Complaint Amendment that was executed

by the Respondent on July 19, 2002.

14. Sometime in August 2002 the Respondent was fired from

his position with the Town. He filed an appeal of the

termination and ultimately won his job back. At that time he

desired to drop the entire matter against the Petitioner.

15. To that end he executed and filed with the Ethics

Commission a Request to Withd raw the Complaint. The Request to

Withdraw was denied on December 9, 2003.

16. Also on December 9, 2003, the Ethics Commission issued

a Public Report that dismissed the Respondent’s complaint

against the Petitioner.

17. On January 4, 2004, the Petitione r filed a Fee

Petition pursuant to Section 112.317(8), Florida Statutes.

18. The Fee Petition asserts that the Respondent acted

with a malicious intent to injure the reputation of the

Petitioner. The Respondent’s intent was to bring to light the

allegati ons against the Petitioner because he believed the

information he had been given was accurate. It proved to be

inaccurate. He did not investigate each of the claims before

filing the Complaint and Complaint Amendment but believed his

sources to be credib le Town employees. In retrospect, the

Respondent believes he could have avoided the professional

pitfalls that befell his employment had he not filed the

Complaint. Nevertheless, based on the information he had at the

time from credible Town employees, t he Respondent acted to cause

some investigation of the Petitioner’s activities.

19. The Respondent did not know that the comments from

Town employees were false or not subject to confirmation. The

Respondent personally observed Vinnie’s intervention a t the

council table. Had it not dovetailed with the rumor regarding

the Petitioner’s proposed boat issue, the conversation would

have still appeared unusual at best. Coupled with the other

unverified information, it gave the appearance of impropriety

war ranting investigation.

20. Similarly, none of the other allegations could be

easily discredited. The Respondent relied on comments

attributed to Ms. Wascura and Ms. Epperson. He had no reason to

doubt the veracity of his friend. Further, he could not f oresee

that Ms. Epperson would not acknowledge making statements

pertaining to the permit issue. The original documents

pertaining to the permits pulled for the Petitioner’s property

are in storage and were not available at the hearing. A

computer - genera ted report was provided to the Ethic Commission’s

investigator. That report does not contain the detail and dates

that might have verified the account provided by Ms. Wascura.

The Respondent’s efforts to obtain copies of public records were

thwarted.

21. The Petitioner’s efforts to paint Ms. Epperson as a

gossip whose alleged statements should not have been credited is

not supported by the weight of persuasive evidence. Ms.

Epperson was an experienced person whose knowledge in the

construction industry made her a credible source for

information. She was employed in a position that made her privy

to the activities of the building department. She now disavows

making the comments that were the subject matter of the

Complaint. Nevertheless, the Respondent believed the comments

attributed to her and believed they were from a credible source.

22. If attorney’s fees and costs are entered in this cause

the beneficiary of an award will be the Town. The Petitioner

has incurred no expenses or costs associated with the defense of

the Complaint. The Town agreed to pay and has paid all

attorney’s fees and costs associated with this case.

23. The Petitioner presented several invoices from the Law

Offices of Stuart R. Michelson that were alleged to pertain to

the instant case. One invoice dated January 6, 2004, set forth

25.00 hours had been expended by Ilene L. Michelson (partner) at

the rate of $200.00 per hour. The invoice also noted 5.50 hours

had been expended by Stuart R. Michelson (senior partner) als o

at the rate of $200.00 per hour. The total of the first invoice

including costs was $6 , 594.54. The second invoice, dated

June 10, 2004, itemized time expended by James Birch (associate

attorney) billed at the rate of $125.00 per hour; Michael Torres

(l aw clerk) billed at the rate of $75.00 per hour; Robert J.

Longchamps (law clerk 2) also billed at the rate of $75.00 per

hour; and Stuart R. Michelson (senior partner) billed at the

rate of $200.00 per hour. The total attorney’s fees for this

second invo ice equaled $3 , 232.50 ; w ith costs the second invoice

was $3 , 772.38. A third invoice dated September 9, 2004

documented $1,187.50 in fees for time expended by James Birch,

Michael Torres, Robert J. Longchamps, and Stuart R. Michelson.

The total for fees a nd costs for the invoice were $4 , 308.85.

The costs and fees claimed in this cause are set forth in detail

in Petitioner’s Exhibit 8. However, bills attached to invoices

identify other parties not related to the instant case. For

example, an invoice from United Reporting, Inc. , references the

case James Vardalis v. Robert Neiman . The Petitioner’s case is

not the same matter. Similarly, a second invoice from United

Reporting, Inc. (dated June 16, 2004) references Michael

Addicott v. Neiman . The Petition er did not delineate which of

the costs were solely attributable to this case. It is unclear

whether the fees were also incurred for other cases related to

this Respondent (but not the Petitioner herein).

24. The Petitioner also presented testimony fro m an expert

witness who was to be paid by the Town. That witness, an

attorney, was to be paid $200.00 per hour for his efforts in

this matter. In connection with his work in this matter and

other cases the expert billed the Town a total of $8 , 050.00.

Ex actly what portion of that amount is attributable to solely

this case is unknown ( see page 77 of the transcript in this

case).

25. Although the Petitioner’s expert testified that the

hourly rates for fees applied in this cause were reasonable,

there was n o evidence that the time was actually expended in

connection with the instant case. There is no way to know if

the services were performed for the defense of the Respondent’s

Complaint.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

27. Section 112.317(8), Florida Statutes (2004), provides:

In any case in which the commission

determines that a person has file d 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

reaso nable 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 informati on 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.

28. The Commission on Ethics has recently determined that

the standard a pplicable to this matter is the “actual malice”

standard enunciated in New York Times v. Sullivan , 376 U.S. 254,

84 S.Ct. 710 (1964). See In re Michael Addicott , COE Final

Order No. 05 - 0207 entered April 26, 2005. Accordingly, unless

the construction of a statute leads to an unreasonable or a

clearly erroneous result, an agency’s interpretation of a

statute that it is charged with enforcing is entitled to great

deference. Level 3 Communications, LLC v. Jacobs , 841 So. 2d

447, 450 (Fla. 2003); Osorio v. B oard of Professional Surveyors

and Mappers , 898 So. 2d 188 (Fla. 5 th DCA 2005).

29. Thus, the Sullivan standard is appropriate to the

issue at hand. Therefore, the Petitioner must establish that

the Respondent filed the complaint with a malicious inten t to

injure the reputation of the Petitioner, with knowledge that the

complaint contained one or more false allegations or with

reckless disregard for whether it contained false allegations of

fact material to a violation of the Code of Ethics. If that

st andard is met, then the Petitioner must establish the amount

of costs and attorney’s fees based upon the criteria set forth

in Florida Patient’s Compensation Fund v. Rowe , 472 So.2d 1145

(Fla. 1985). If the standard is not met, the question of an

amount o f reasonable attorney’s fee is moot.

30. In this case, the Petitioner has failed to demonstrate

that the Respondent acted with a malicious intent to injure the

reputation of the Petitioner. The Respondent relied on

information he personally observed or was provided by persons he

believed knew or should have known the accuracy of the

information conveyed. Here the Respondent relied on what his

experience suggested were credible sources within the Town.

Although he did not investigate, he had no reason to doubt the

veracity of his friend or co - worker. He personally observed the

torn shirt of the security guard. He was present when the guard

identified the Petitioner as the perpetrator. He did not doubt

the alleged victim’s account. When the security guard did not

return to press charges he attempted to locate the individual.

The investigation was dropped when the complaining witness did

not return.

31. Similarly, the Respondent did not file the Complaint

with a reckless disregard for the truth. A s outlined by Demby

v. English , 667 So. 2d 350 (Fla. 1 st DCA 1996):

“[T]he constitutionally protected right to

discuss, comment upon, criticize, and

debate, indeed, the freedom to speak on any

and all matters is extended not only to the

organized media but to all persons.” Nodar

v. Galbreath , 462 So.2d 803 (Fla. 1984).

The First Amendment privilege of fair

comment is not absolute. To prevail at

trial, a plaintiff must establish not only

the falsity of the claimed defamation, but

also demonstrate through clear and

convincing evidence that the defendant knew

the statements were false or recklessly

disregarded the truth. New York Times v.

Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11

L.Ed.2d 686 (1964).

32. In this case the Petitioner has failed to provide

cl ear and convincing proof that the Respondent acted with

reckless disregard for the truth. To satisfy this burden, the

Petitioner must demonstrate a level of evidence such that it

produces in the mind of the trier of fact a firm belief or

conviction withou t hesitancy as to the truth of the allegations

sought to be established. See In re Davey , 645 So. 2d 398, 404

(Fla. 1994). To the contrary, the weight of the credible

evidence in this case established that the Respondent thought

the information he provid ed to the Ethics Commission was

accurate and would lead to an investigation that would disclose

ethics violations.

33. There is no clear and convincing evidence that at the

time he made the Complaint or the Complaint Amendment that th e

Respondent knew a ny statement was false. Indeed, c an it be said

in retrospect that he perhaps naively believed the unverified

statements of his co - workers? Could it also be said that co -

workers changed their minds regarding what they would state on

the record? Perhaps a more thorough investigation could have

been done before the filing of the Complaint ; h indsight would

yield different results in many instances. As to whether he

knowingly made false statements regarding th e Petitioner, the

evidence in this cause is woefu lly inadequate to reach such a

conclusion.

34. It is concluded that at the time he made the Complaint

and Complaint Amendment all of the factual allegations were

either supported by the Respondent’s observations, his

conversations with Town employees, or inferences reasonably

drawn from observations made by himself or others. For example,

what the building official and the Petitioner discussed

privately is unknown. Nonetheless , a credible witness observed

the Petitioner direct the building official in to an office to

discuss his permit fee privately. When coupled with the

allegation that the permit fee was based on an under - valued

amount (an unverified report from a knowledgeable source), the

Respondent believed he had a reasonable basis to raise an et hics

issue. The same analysis could be applied to each and every

allegation raised by the Respondent. In each instance he

believed the statements of persons who reported information to

him. The victim of the alleged assault identified the

Petitioner, th e variance vote was changed after Vinnie

approached the Petitioner, and the subcontractor got the Town

contract after he did the job for the Petitioner. Each of these

events “partnered” with information he was given by Town

employees.

35. For the reas ons set forth above, it is concluded that

the Petitioner is not entitled to an award of attorney’s fees in

this matter. The Petitioner has failed to meet the evidentiary

standard applicable to this cause. As such, no conclusion is

reached as to what woul d be an appropriate award if an award

were warranted. In this case it is difficult, based on the

information found in Petitioner’s Exhibit 8 as well as the

testimony of the Petitioner’s expert, to determine what fees

would be appropriate for the defense o f the allegations of this

matter. Further, it would be difficult to determine what costs

could be solely attributed to this case (assuming arguendo that

if costs were to be awarded). Moreover, the discussion of the

attorney’s fees and costs found in the Recommended Order (DOAH

Case No. 04 - 0043FE) to In re Michael Addicott , COE Final Order

No. 05 - 0207 entered April 26, 2005, is instructive. In that

matter my learned colleague suggested that the evidence was

insufficient to support an award of attorney’s f ees in any

amount. In that case, as here, the testimony did not support a

finding that the billed services were actually performed, that

the bills were accurate, that all of the services were

reasonably necessary, or that all of the services related to th e

Respondent’s Complaint or Complaint Amendment against th e

Petitioner. To the contrary, it is evident that costs reported

in Petitioner’s Exhibit 8 , on their face , related to other

matters.

RECOMMENDATION

Based upon the foregoing F indings of F act and C on clusions

of L aw, it is RECOMMENDED that a Final Order be entered

dismissing the Fee Petition in this case.

DONE AND ENTERED this 2nd day of June, 2005, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrati ve Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administra tive Hearings

this 2nd day of June, 2005.

COPIES FURNISHED :

James J. Birch, Esquire

Law Office of Stuart R. Michelson

200 Southeast 13th Street

Fort Lauderdale, Florida 33133

Robert Nieman

9731 Southwest 12th Street

Pembroke Pines, Florida 33026

Kay e Starling, Agency Clerk

Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Tallahassee, Florida 32317 - 5709

Phillip C. Claypool, General Counsel

Commission on Ethics

3600 M a clay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Bonnie J. Williams, Executive Director

Commission on Ethics

3600 M a clay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

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.