04-001591F Vanessa Brown vs. Capital Circle Hotel Company, D/B/A Sleep Inn Status: Closed Recommended Order on Tuesday, November 23, 2004.

Summary: Petitioner`s attorney is entitled to a reasonable fee for 129 hours of time expended at $300.00 per hour, in addition to a multiplier of 1.5 for a sum of $56,900, plus costs and expert witness fee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANESSA BROWN, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1591F

)

CAPITAL CIRCLE HOTEL COMPANY, )

d/b/a SLEEP INN, )

)

Respondent. )

)

RECOMMENDED ORDER FOR ATTORNEY'S FEES AND COSTS

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge of the Division of Administrative

Hearings on October 6, 2004, Orlando, Florida. The following

appearances were entered:

APPEARANCES

For Petit ioner: Tricia A. Madden, Esquire

Tricia A. Madden, P.A.

500 East Altamonte Drive, Suite 200

Altamonte Springs, Florida 32701

For Respondent: Stephen F. Baker, Esquire

Stephen F. Baker, P.A.

800 First Street, South

Winter Haven, Florida 33 880

STATEMENT OF THE ISSUES

What amount of attorney's fees is to be paid to Petitioner

pursuant to the award of fees in the Final Order Awarding

Affirmative Relief from Unlawful Public Accommodation

Discrimination.

What amount of costs is to be paid to Petitioner pursuant

to the award of costs in the Recommended Order and Final Order.

PRELIMINARY STATEMENT

A Final Order Awarding Affirmative Relief from Unlawful

Public Accommodation Discrimination was entered by the Florida

Commission on Human Relation s (FCHR) on February 20, 2003. FCHR

adopted the Administrative Law Judge's Findings of Fact,

Conclusions of Law, and Recommendations for the remedy of

discrimination. The Final Order confirmed the award of

attorney's fees and costs to Petitioner, Vanessa Brown. The

parties were unable to reach an agreement on the reasonable

amount of attorney's fees and costs, and Respondent, Capital

Circle Hotel Company, d/b/a Sleep Inn (Sleep Inn), had not yet

paid to Petitioner the monetary amount awarded to Petitione r in

paragraph 2 under affirmative relief in the Final Order when

Petitioner filed a Notice of Failure of Settlement.

Prior to this hearing, Respondent had paid the amount

awarded to Petitioner in paragraph 2. An Agreement had not been

reached on the rea sonable amount of attorney's fees or costs.

At the hearing, Petitioner's attorney, Tricia A. Madden,

Esquire, testified and presented the expert testimony of

George F. Indest, III, Esquire. Petitioner presented seven

exhibits: a copy of amended time she ets; a copy of amended

costs; the contingency contract; the resume of Tricia A. Madden;

a letter from Respondent's counsel, Stephen F. Baker, dated

January 28, 2002; a copy of the Rule Regulating Florida Bar

4 - 1.5; and the resume of George F. Indest, III, Esquire.

Official recognition was taken of all pleadings and previous

filings with the clerk, including specifically, the Recommended

Order and Final Order and all exhibits entered into evidence at

the hearing on the issue of discrimination held on Septem ber 4,

2002. Mr. Baker testified, offered one exhibit, and presented

the expert testimony of Neil F. Young, Esquire. Mr. Indest and

Mr. Young were accepted as expert witnesses on attorney's fees

and costs without objection by the parties.

The hearing wa s recorded, but a transcript was not ordered.

The parties were permitted 14 days to file memoranda of law or a

proposed order. Each party timely filed post - hearing

submittals, which have been carefully considered.

At the hearing, Respondent offered as a defense to the

attorney's fees and costs that the award of same in the

Recommended Order and Final Order was contrary to law and

objected to by Respondent. This defense was untimely.

Respondent did not correctly present his Exceptions to the

Recommended Order and filed no appeals to the Final Order. The

only issue remaining for determination by the Administrative Law

Judge is the amount of reasonable attorney's fees and costs to

be awarded to Petitioner.

FINDINGS OF FACT

1. A Recommended Order was en tered by Daniel M. Kilbride,

Administrative Law Judge, on October 17, 2002, awarding

affirmative relief as follows:

a. Finding that Respondent discriminated against

Petitioner based on her race (African - American);

b. Awarding Petitioner $500 in compen satory

damages;

c. Issuing a Cease and Desist Order prohibiting

Respondent from repeating this practice in the future;

and

d. Awarding a reasonable attorney's fee as part

of the costs.

2. Respondent filed Exceptions to the Administrative Law

Judge's Recommended Order, but did not file a transcript of the

hearing as required in administrative proceedings. As a result

of the failure, FCHR ordered the Exceptions stricken.

3. FCHR's Final Order adopted the Recommended Order's

Findings of Facts, Conclus ions of Law, and remedies for the

discrimination.

4. No appeal was filed by Respondent.

5. Respondent filed statement of defenses to the Motion

for Hearing on Attorney's Fees and Costs in which Respondent

denied that its action in the underlying procee ding was not

justified and contended that the award requested by Petitioner

would be unjust.

6. The amount of reasonable attorney's fees and costs was

sought pursuant to Section 509.092, Florida Statutes (2003),

unfair discrimination by the operator of a public lodging

establishment. Section 509.092, Florida Statutes (2003), which

establishes a right of action pursuant to Section 760.11,

Florida Statutes (2003), specifically states that an award of

attorney's fees should be interpreted in a manner consis tent

with federal case law involving a Title VII action.

7. Petitioner testified in the prior hearing that she was

badly hurt by the treatment received at the Sleep Inn. When she

was discriminated against, she threatened a suit against the

hotel that ni ght because she wanted them to give her a room.

When she did not receive a room, she felt she had been treated

in a humiliating fashion and was emotionally injured. She

sought counseling professionally, then continued counseling with

her sister, who was a licensed psychologist.

8. Petitioner determined that the Sleep Inn was not going

to apologize to her or do anything except back - up its staff

member. She felt she had to leave it to legal remedies to

secure relief for herself and others. When an offe r was

received from Respondent's attorney in a letter dated

January 28, 2002, offering a sum to save costs of litigation,

but denying any liability on the part of Respondent, Petitioner

wanted to go forward with the matter to receive public

acknowledgement that she had been discriminated against by Sleep

Inn. Thus, Petitioner was satisfied with the Recommended Order

and the Final Order of FCHR, even though the dollar amount

awarded to Petitioner was only $500.00.

9. Petitioner was aware that there were financial

differences in damages for filing an administrative proceeding

versus a civil action in circuit court. Petitioner understood

that monetary damage for pain and suffering could not be awarded

in the administrative procedures. Only documented econ omic

damages could be awarded to Petitioner along with affirmative

relief declaring that she was discriminated against and

directing Respondent to stop condoning discriminating acts.

10. Petitioner retained Tricia A. Madden, Esquire, on

June 13, 2000, t o represent her in seeking relief from the

discriminatory act and signed a contingency contract. The

contract states that Petitioner's attorney will be paid the

greater of a reasonable attorney's fee awarded through the

administrative process or a percent age fee from the total

recovery. The contract further states that if the client

prevails or if the contract is terminated, the client must pay

the costs listed on the contract to include all costs in

investigation, research, and litigating the claim, incl uding,

but not limited to, telephone charges, copying costs, postage,

and transportation charges.

11. A charge of discrimination was filed on October 18,

2000, with FCHR. When the charge could not be quickly

identified as received by FCHR, a second charg e was filed on

May 23, 2001. Determination of Cause in favor of Petitioner was

received after an investigation was conducted by FCHR.

Respondent continued to deny liability and made no offers to

accept liability or provide any relief to Petitioner.

Ther eafter, Petitioner's Petition for Relief was timely filed.

12. An attorney appeared for Respondent and filed a Motion

to Dismiss. It was withdrawn after discussions with

Petitioner's counsel when Respondent's counsel was made aware

that the specific moti on was inapplicable to a public lodging

discrimination case.

13. Stephen F. Baker, Esquire, was substituted as counsel

for Respondent on January 6, 2002. He filed a Motion for

Summary Judgment on grounds which were not applicable to a

public lodging esta blishment case and outside the jurisdiction

of the Administrative Law Judge. The Motion for Summary

Judgment was denied by the Administrative Law Judge.

14. Petitioner's counsel has practiced law for 20 years

and has practiced in the area of discriminati on law in various

types of cases, including public lodging establishment cases,

employment discrimination cases, Americans with Disabilities Act

cases, and education cases for disabled children in civil court

and in administrative proceedings. She regular ly takes such

cases on a contingency basis, believing it is necessary in order

to give Petitioner access to the courts. Petitioner's counsel

said that although she had a very capable paralegal and staff to

assist her in other cases, her paralegal and staf f were not

qualified to provide more than secretarial assistance in

handling discrimination cases; and she has never been able to

find a paralegal who was knowledgeable in discrimination cases.

Therefore, all of the legal work, including directing the

inv estigation, contact with witnesses, and all pleadings were

handled by her in discrimination cases. Her time on the case

covered three and a - half years, when the Final Order was

entered, and Mr. Indest was attorney - of - record for 13 months.

15. Mr. Indest testified on behalf of Petitioner as an

expert on attorney's fees and costs and provided his curriculum

vitae. Mr. Indest testified to extensive experience in teaching

seminars and classes and writing publications on the subject of

attorney's fees and the law, standards, and method of

determining the reasonable amount of fees and costs. Mr. Indest

is familiar with Florida Patients Compensation Fund v. Rowe ,

472 So. 2d 1145 (Fla. 1985); Standard Guaranty Insurance Company

v. Quanstrom , 555 So. 2d 828 (Fla. 1990); and the Rule

Regulating Florida Bar 4 - 1.5 and testified to each factor

identified in the rule. Mr. Indest had a previous opportunity

to observe Ms. Madden's skills when they were opposing counsel

in a nursing home case and when Ms. Madden testifie d for him as

an expert witness on issues, not attorney's fees, in an

administrative hearing case where he represented a Petitioner

versus the Department of Children and Family Services. He

testified that Ms. Madden had a reputation in the community of

bei ng a very skilled and aggressive attorney with 20 years'

experience representing plaintiffs and petitioners. He further

testified she was the only attorney that he was aware of who

took discrimination cases on a contingency basis and one of only

three att orneys he knew that regularly took discrimination cases

on behalf of an employee. Mr. Indest testified he had

specifically surveyed other attorneys in the Orlando area as to

the fees charged in administrative proceedings and

discrimination cases. He test ified the range of fees for

handling discrimination cases and administrative cases in the

Orlando metropolitan area is from $250.00 to $450.00 per hour

for one attorney who had only 15 years of experience and from

$400.00 to $500.00 for one attorney with 3 0 years of

experience. Other attorneys with 20 years of experience charge

fees from $300.00 to $450.00 per hour. Mr. Indest charges

$350.00 per hour and is raising his fee as of January 1, 2005,

to $400.00 per hour. Mr. Indest said Ms. Madden had only

requested $300.00 per hour in this case and should raise her

fees to be commensurate with her skills, knowledge of the area

of law, and the fees usually charged in the Central Florida

area. It was his opinion that $300.00 per hour was a very

reasonable fe e in the local market for this case.

16. Mr. Indest reviewed the taxable costs submitted on the

amended costs list and said that with exception of the Westlaw

figures, which Ms. Madden had withdrawn, all costs were

reasonable and had to be paid by Petitio ner. They were less

than he and others would have charged, were applicable, and

should be awarded to Petitioner.

17. Mr. Indest testified he had spent eight hours prior to

the day of hearing and approximately two more hours before the

hearing reviewing t he file on the Vanessa Brown case and asking

questions on the case and proceedings. He stated he had

reviewed the file, but had not read the depositions in detail,

although he had scanned the six depositions. He noted

Ms. Madden's time for preparation an d attendance included travel

time, depositions, research, investigation of the witnesses, and

the trial of the case. He had read the Recommended Order and,

in his opinion, the necessary testimony to support the case was

detailed. It was his opinion that it took a high level of skill

to prosecute the case successfully. He stated the 122 hours

claimed by Petitioner's counsel were very reasonable and that he

would have probably had to spend closer to 200 hours preparing

the case. He said Petitioner's couns el demonstrated her

expertise and efficiency in handling the case by the fact that

she prepared for and tried the case at hearing with successful

results of her client with only 122 hours of work.

18. Mr. Indest noted Respondent's counsel billed no

prepar ation time for depositions and hearings. He found that

unusual and puzzling, and stated that preparation time was

certainly necessary for a petitioner's counsel. He said

Petitioner had to carry the burden of proof and had to marshall

the evidence and wit nesses. Mr. Indest stated he could accept

that Ms. Madden put in 11 hours or more on any given day at

times on this case since he often had to work more than 11 hours

a day. Mr. Indest observed that the Proposed Order prepared by

Petitioner's counsel was well prepared.

19. Respondent's attorney testified he had been an

attorney since 1976 and had been retained by Respondent sometime

in December 2001. Respondent's attorney said he felt the case

was always a money case from his initial involvement. In th e

Proposed Recommended Order, Petitioner had asked for $15,000.00

as a monetary consideration. However, the monetary award was

only $500.00. He agreed that the court costs claimed were

reasonable. He would have discussed an apology if that was what

Pet itioner wanted with his client, who was a businessman.

However, contrary to this suggestion that his client would have

admitted liability, settlements normally do not admit liability

or fault on the part of the defendant.

20. Respondent's attorney said he spent 44 hours on this

case with six depositions and two witnesses at trial. He argued

that Petitioner's counsel claimed that she had 140 other active

cases and could not possibly have spent three weeks' preparation

time on this case.

21. Mr. Young testified that he has practiced since 1976

and has handled a variety of cases. He said he has been

involved in discrimination cases as the attorney for the City of

Davenport and later the City of Winter Haven. He stated on

cross - examination that he has n ot gone to trial on a

discrimination case; that they were always settled before

litigation. He reviewed Respondent's file to prepare his

Affidavit for an hour and a - half. He spent another hour and a -

half the day of the hearing to review Respondent's file to

refresh his memory and review Petitioner's counsel's hours. He

testified that the outcome of the case should have been apparent

from the first, and it was a routine case. He did not read the

depositions, but he read the Recommended Order and felt it was a

simple case of limited complexity. He said in his opinion the

case could have been done in five days of work altogether, with

one - half day for all pleadings and one day to both prepare and

try the case. It was a straight - forward presentation and st ory,

and the fee should only be $200.00 per hour. He had not

surveyed any other attorneys who had litigated discrimination

cases or who represented plaintiffs/petitioners in

discrimination cases. He said in Central Florida, fees are all

over the block; a nd they had attorneys in Winter Haven who

charged up to $450.00 per hour. He said litigation should be a

last resort, and it was a public interest case with no monetary

recovery. He was of the opinion that 40 hours at $200.00 was

reasonable, and he had r educed the fee to $6,000 based on

results obtained.

22. The expert witness for Respondent alleged that the

delay in response to interrogatories and a Request to Produce

were demonstrations that Petitioner's attorney had not performed

her role efficiently, had wasted the time of Respondent's

counsel, and time for such actions should not be billed or

awarded to Petitioner. Respondent wasted Petitioner's counsel

time also with two erroneous motions, but Respondent's counsel

billed his client for his motion as noted in his time statement.

Urging clients to complete discovery is a known time requirement

of attorneys, and the delay was caused by Petitioner's personal

problems, not by Petitioner's counsel. Ms. Madden voluntarily

withdrew the entry of eight hours on her item slips listed as

time spent proofing the attorney's fees time delineation.

Entitlement to attorney's fees and costs had already been

established by this tribunal in the Recommended Order and Final

Order. Petitioner's counsel also voluntarily deleted $356.35

for Westlaw research, as a cost not chargeable to Respondent.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

procedure pursuant to Sections 120.569 and 509.0 92 and

Subsections 120.57(1) and 760.11(4), Florida Statutes (2004).

24. Section 509.092, Florida Statutes (2003), provides:

Public lodging establishments and public

food service establishments; rights as

private enterprises. -- Public lodging

establish ments and public food service

establishments are private enterprises, and

the operator has the right to refuse

accommodations or service to any person who

is objectionable or undesirable to the

operator, but such refusal may not be based

upon race, creed, color, sex, physical

disability, or national origin. A person

aggrieved by a violation of this section or

a violation of a rule adopted under this

section has a right of action pursuant to

s. 760.11.

25. Subsection 760.11(6), Florida Statutes (2003),

pr ovides, in pertinent part:

(6) Any administrative hearing brought

pursuant to paragraph (4)(b) shall be

conducted under ss. 120.569 and 120.57. The

commission may hear the case provided that

the final order is issued by members of the

commission who di d not conduct the hearing

or the commission may request that it be

heard by an administrative law judge

pursuant to s. 120.569(2)(a). If the

commission elects to hear the case, it may

be heard by a commissioner. If the

commissioner, after the hearing, fi nds that

a violation of the Florida Civil Rights Act

of 1992 has occurred, the commissioner shall

issue an appropriate proposed order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay. If the administrative law judge,

after the hearing, finds that a violation of

the Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay. Within 90 days of the date the

recommended or proposed order is rendered,

the commission shall issue a final order by

adopting, rejecting, or m odifying the

recommended order as provided under

ss. 120.569 and 120.57. The 90 - day period

may be extended with the consent of all the

parties. An administrative hearing pursuant

to paragraph (4)(b) must be requested no

later than 35 days after the date of

determination of reasonable cause by the

commission. In any action or proceeding

under this subsection, the commission, in

its discretion, may allow the prevailing

party a reasonable attorney's fee as part of

the costs. It is the intent of the

Legisla ture that this provision for

attorney's fees be interpreted in a manner

consistent with federal case law involving a

Title VII action.

26. The court in University Community Hospital v.

Department of Health and Rehabilitative Services , 493 So. 2d 2

(Fla. 2d DCA 1986), stated when attorney's fees are to be

awarded under administrative law in Florida, the standards and

methods in Florida Patients' Compensation Fund v. Rowe , 472

So. 2d 1145 (Fla. 1985), are to be applied. Rowe has since been

reviewed and mod ified to some extent by Standard Guaranty

Insurance Company v. Quanstrom , 555 So. 2d 828 (Fla. 1990).

27. In Weaver v. School Board of Leon County , 624 So. 2d

761, 763 - 764 (Fla. 1st DCA 1993), the court found the case

against a state agency was a vindicat ion of both public and

private wrongs and a case involving partially public policy.

However, the legal proceedings resulted in personal and economic

benefit to Petitioner, but no dollar award. The court found the

case to be a vindication of a private wro ng. The court

considered the three general categories of cases relevant to the

application of a contingency fee multiplier as discussed in

Quanstrom , 555 So. 2d at 833, and determined p etitioner's

discrimination case was closer to a Category II case -- tort and

contract -- and applied a contingency risk factor. The court also

found that even if it had been only a public interest case

against a public agency and even though there was no award of

dollars for economic damages for lack of evidence of

quantitative economic damages, a contingency factor was

appropriate because without an adjustment for risk, petitioner

would have faced substantial difficulties in finding counsel in

the local or other relevant market. Weaver , 624 So. 2d at 763.

See also Franklin Co unty School Board v. Page , 540 So. 2d 891

(Fla. 1st DCA 1989) (Contingency enhancement ordinarily not

applicable under federal standards for determining amount of

attorney's fees in civil rights actions may be applicable when

such entitlement is necessary to secure competent counsel.) See

also Lane v. Head , 566 So. 2d 508, 513 (Fla. 1990), Justice

Overton specially concurring.

28. FCHR may award pre - litigation fees as long as those

hours do not duplicate time charged later. In Terry v. Carlton

Manufactur ing, Inc. , 610 So. 2d 703, 704 (Fla. 1st DCA 1992),

the First District Court of Appeal determined fees may be

awarded to the prevailing party for time charged in the

administrative proceedings that included fact - findings conducted

before FCHR in an age dis crimination case. The court also

awarded expert witness fees to attorneys who appeared at the

evidentiary hearing on the attorney's fees and costs. Although

the court in Terry did not reverse the trial court's failure to

use the contingency multiplier, t here was no discussion of facts

and reasons; therefore, Terry is not applicable on that issue in

this case. See Ramsey v. Chrysler First, Inc. , 861 F.2d 1541,

1545 (11th Cir. 1988). In Ramsey , citing federal cases awarding

fees for pre - litigation service s under Title VII of the Civil

Rights Act and ADEA, the Eleventh Circuit Court held that a

strong case could be made for awarding fees for pre - litigation

services in an ADEA case, even though the language in the fee

provision of ADEA was different from tha t in Title VII.

29. The court may award attorney's fees in excess of the

percentage arrangement in a contingency contract if language in

the contract permits recovery of a reasonable attorney's fee, if

awarded by the court, and if greater than the agreed percentage

of the total gross award to the client. Kaufman v. MacDonald ,

557 So. 2d 572 (Fla. 1990). Petitioner's contract with counsel

contained the required language.

30. Petitioner is entitled to the costs listed in the sum

of $4,115.19, which repres ents the costs listed, less the cost

of Westlaw research of $356.35. Mr. Indest's opinion was that

the costs met the guidelines as specified in Rule Regulating

Florida Bar 4 - 1.5(b)(2). Respondent's only objection to the

costs was to the Westlaw fee, whic h sum was voluntarily

withdrawn by Petitioner's counsel at the beginning of the

hearing.

31. Petitioner is also entitled to costs for her expert

witness, Mr. Indest. Pursuant to Section 92.231, Florida

Statutes (2003), an expert witness shall be allowed a witness

fee which shall be taxed as costs. Mr. Indest said he spent ten

hours reviewing the file and his time at the hearing. The

hearing lasted approximately two hours. Mr. Indest said he

charged $350.00 per hour to Petitioner. Respondent offered n o

objection to that hourly fee or to the number of hours

Mr. Indest stated he spent reviewing the case file, questioning

Ms. Madden on the case, and researching fees in the local

market. The costs to be awarded to Petitioner for payment to

Mr. Indest is t he sum of 12 hours times $350.00, which is

$4,200.00 to be paid by Respondent to Petitioner.

32. Mr. Indest testified specifically to the factors

addressed in Rowe , supra ; Quanstrom , supra; and Rule Regulating

Florida Bar 4 - 1.5. Each of those factors h as been considered in

making the determination of the appropriate fee. Boyle v.

Boyle , 485 So. 2d 879 (Fla. 2nd DCA 1986). The Recommended

Order in paragraph 30 specifically stated that in this case the

issue of discrimination was a close question. Cont rary to

Mr. Young's testimony, it was not a simple, straight - forward

story in which the outcome should have been apparent from the

first. Clearly, Respondent and his counsel did not agree with

that appraisal since Respondent, through counsel, denied

Respo ndent was responsible for unlawful discrimination even in

the latest pleadings on the amount of attorney's fees and costs

to be awarded. Mr. Young spent only three hours on the file,

but his testimony demonstrated that he was not familiar with and

read no ne of the depositions, even briefly, and did little

research on fees in the market area to compare cases or discuss

the case in any detail with counsel.

33. The formulary in determining fees in a discrimination

case is a complex combination of the factors and methods

considered in Rowe , supra ; Quanstrom , supra ; and Rule Regulating

Florida Bar 4 - 1.5 and must be consistent with case law in Title

VII actions. Mr. Indest's testimony is accepted as it relates

to Petitioner's counsel's experience and skill in t he

prosecution of discrimination cases, his evaluation of the

difficulties of the case, and the necessity of solicitation of

detailed evidence to prevail. The time expended by Petitioner's

counsel produced such evidence, and the level of detail of time

sp ent is evidenced by the extensive findings and case law

produced in the Proposed Recommended Order for the hearing in

September 2002. The likelihood that the acceptance of

Petitioner's case precluded other employment is relevant only to

the extent that Pe titioner's counsel could process other types

of tort cases with less expenditure of her own time and more of

her staff's time.

34. Mr. Indest's testimony is accepted in regard to a

reasonable fee based on the work he expended to survey the rate

of fees cu stomarily charged in the locality of similar types of

cases. Mr. Young testified he had made no such evaluation of

the local market area and no attempt to determine such fees.

Mr. Indest's testimony is accepted that the fee for Ms. Madden

is reasonable f or the case and for an attorney with her

experience and skill in the Central Florida/Orlando area.

35. Based on the evidence presented, it is determined that

$300.00 per hour is a reasonable hourly rate and 122 hours was a

reasonable amount of time to ex pend in the litigation of this

case. Therefore, $36,600.00 is a reasonable lodestar fee for

Petitioner. Weaver , supra ; Quanstrom , supra .

36. Issues of discrimination are always significant, as

has been stated by courts, legislative bodies, and Congress. As

stated by the Florida Supreme Court, issues of discrimination

are significant as they:

encourage meritorious civil rights claims

because of the benefits of such litigation

for both the named plaintiff and for society

at large, irrespective of whether the action

seeks monetary damages.

Quanstrom , 555 So. 2d at 832. The major purpose of fee - shifting

statutes is to encourage private enforcement of statutes. The

court has determined that a contingency adjustment has a strong

public - interest factor when a case is taken with a risk of

nonpayment. Quanstrom , 555 So. 2d at 833. The amount of

damages is not controlling in public interest cases because

plaintiffs would not, and could not, pursue such cases if their

attorney's fees were not included in the po tential award or

remedy. Quanstrom , 555 So. 2d at 833 - 834.

37. The mandates of Section 509.092 and Subsection

760.11(6), Florida Statutes (2003), provide that the intent of

the Legislature in the provision of attorney's fees be

interpreted in a manner consistent with federal case law

involving Title VII actions. It is determined that a

contingency multiplier is appropriate in this case. The case

vindicated a public policy and a private wrong of serious

concern to Petitioner. Using the Quanstrom categ ories as in

Weaver , the case falls into a Category II type case. This was a

wrong to a private person by a private company, not a public

agency. The case was a close question, and Petitioner's counsel

expended extensive time and took a significant risk o f

nonpayment without any means to mitigate that risk except to

prevail at hearing. Success was unlikely at the outset of the

case. Petitioner could not have secured competent counsel

without her counsel's willingness to take a contingency risk.

38. The multiplier effect for cases with success

considered likely even at the outset, the range is 1.5 to 2.0;

and for cases with success considered unlikely at the outset,

the range is 2.0 to 2.5. Quanstrom , 555 So. 2d at 834. Taking

the low end of the range o f the two evaluations of the possible

outcomes at the outset, a multiplier factor of 1.5 will be

applied and Petitioner awarded attorney's fees in the amount of

$54,900.00.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, i t is

RECOMMENDED that a final order be entered:

1. Awarding attorney's fees to Petitioner in the sum of

$54,900.00; and

2. Awarding costs to Petitioner in the sum of $8,315.79,

which includes $4,200.00 to be paid to Petitioner for payment of

Petitione r's expert witness, George F. Indest, III, Esquire.

DONE AND ENTERED this 23rd day of November, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearing s

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 Administrative Hearings

this 23rd day of November, 2004.

COPIES FURNISHED :

Stephen F. Baker, Esquire

Stephen F. Baker, P.A.

800 First Street, South

Winter Haven, Florida 33880

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Tricia A. Madden, Esquire

Tricia A. Madden, P.A.

500 East Altamonte Drive, Suite 200

Altamonte Springs, Florida 32701

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NO TICE 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.