13-002571FC Christina Viering vs. Florida Commission On Human Relations On Behalf Of Bahiyyih Watson Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, February 28, 2014.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINA VIERING ,

Petitioner ,

vs. Case No. 13 - 2571FC

FLORIDA COMMISSION ON HUMAN

RELATIONS ON BEHALF OF BAHIYYIH

WATSON ,

Respondent .

/

ORDER DETERMINING A MOUNT OF FEES AND CO STS

On March 6, 2013, the First District Court of Appeal issued

an Order in Case No. 1D12 - 3287 (Christina Viering, Appellant v.

Florida Commission on Human Relations, etc., Respondent). The

order states as follows:

Pursuant to sectio n 120.595(5), Fla. Stat.,

appellantÓs motion requesting attorneyÓs fees and

costs, is granted. The fee motion is remanded to

the Division of Administrative Hearings to assess

the amount of a reasonable fee after a hearing on

the motion if parties are unab le to agree on the

amount. (Citations omitted.)

The Mandate in Case No. 1D12 - 3287 was issued on March 22,

2013. On July 12, 2013, Respondent, Christina Viering

(hereinafter ÐVieringÑ), filed a ÐMotion to Open a Fee CaseÑ at

DOAH. The motion was filed i n DOAH Case No. 10 - 9371 but was then

transferred to the instant case. The motion advised DOAH that

the parties were not able to Ðagree on the amountÑ of the fee.

Pursuant to notice, a hearing was held on August 15, 2013,

to determine the amount of attorne yÓs fees and costs that should

be awarded. At the final hearing, Respondent, Florida Commission

on Human Relations on Behalf of Bahiyyih Watson (the

ÐCommissionÑ), advised that the amount of fees proposed by

Viering were essentially fair and correct with a minor exception.

The Commission objected to the use of a multiplier that

Viering had used in the fee calculation. The Commission based

its objection on the case of Sally Sarkis v. Allstate Ins. , 963

So. 2d 210 (Fla. 2003), in which the Florida Supreme Court

addressed the use of contingency risk multipliers in attorneyÓs

fee cases arising under s. 768.79, Fla. Stat. The Sarkis court

affirmed the reasoning stated in Std. Guaranty Ins. Co. v.

Quanstrom , 55 So. 2d 828 (Fla. 1990), which sets forth the base s

for applying contingency risk multipliers. In discrimination

cases, factors warranting a multiplier include: 1) the time and

labor required; 2)the novelty and difficulty of the questions; 3)

the skill requisite to perform the legal service properly; 4) the

preclusion of other employment by the attorney due to acceptance

of the case; 5) the custom fee; 6) whether the fee is fixed or

contingent; 7) time limitations imposed by the client or the

circumstances; 8) the amount involved, and the results obtaine d;

9) the experience, reputation, and ability of the attorney; 10)

the ÐundesirabilityÑ of the case; 11) the nature and length of

the professional relationship with the client; and 12) awards in

similar cases. It is important to note that the existence of a

contingency fee arrangement is but one of the factors to be

considered. In the instant case, there is a contingency fee, but

Viering did not establish any other basis under Quanstrom for

applying a multiplier to her attorneyÓs fees.

The Commission als o objected, without citation to any legal

authority, to pre - judgment and post - judgment interest being

assessed.

The amount of attorneyÓs fees claimed by Viering is

$37,423.00, plus $512 in costs. The total amount of all fees was

calculated as follows:

- Fi ling fees for District Court of Appeal . . . . $300 .00

- Fee charged for record prepared by Commission. . $212 .00

- AttorneyÓs fees for BrewerLong PLLC

(law firm representing Viering following

Entry of Final Order by the Commission) $11,289 .00

- At torneyÓs fees for Woodring Law Firm

(law firm representing Viering for

appeal of Final Order) $26,134 .00

At the hearing in this matter, Woodring requested fees of

$36,701 based upon use of a multiplier. The total attorneyÓs

fees amount was $26,134, constituting $21,134 in fees for work

performed plus a $5000 contingency fee. (The contingency fee was

based on both prevailing in the appeal and shifting fees.) After

removing the contingency fee amount, Woodring applied a

multiplie r of 1.5 to the balance, then added back the $5000 fee

to arrive at his requested sum.

The CommissionÓs objection to the use of a multiplier is

granted. The remainder of VieringÓs fees and costs are

reasonable. Pre - judgment interest shall run from the da te the

First District Court of Appeal rendered its Order granting

attorneyÓs fees and costs, i.e., March 6, 2013. Post - judgment

interest shall run from the date of this Order.

CommissionÓs Objection to Fees Assessment

The Commission does object, howe ver, to the propriety of

assessing fees at all. The basis of its objection is that

section 760.35, Fl orida Statutes , prohibits assessment of fees.

S ubsection (3)(c) of that statute states:

The district courts of appeal may, upon the

filing of appropriat e notices of appeal, review

final orders of the commission pursuant to s.

120.68 . C osts or fees may not be asses sed against

the commission in any appeal from a final order

issued by the commission under this subsection.

Unless specifically ordered by the court, the

commencement of an appeal does not suspend or stay

an order of the commission.

The Commission also ar gues that Viering failed to comply

with the requirements of section 284.30, Fl orida Statutes , which

states:

A state self - insurance fund, designated as the

ÐState Risk Management Trust Fund,Ñ is created to be

set up by the Department of Financial Services and

administered with a program of risk management, which

fund is to provide insurance, as authorized by s.

284.33 , for workersÓ compensation, general liability,

fleet automotive liability, federal civil rights

actions under 42 U.S.C. s. 1983 or similar federal

statutes, and court - awarded attorneyÓs fees in other

proceedings against the state except for such awards

i n eminent domain or for inverse condemnation or for

awards by the Public Employees Relations Commission.

A party to a suit in any court, to be entitled to have

his or her attorneyÓs fees paid by the state or any of

its agencies, must serve a copy of the p leading

claiming the fees on the Department of Financial

Services; and thereafter the department shall be

entitled to participate with the agency in the defense

of the suit and any appeal thereof with respect to

such fees.

Inasmuch as the First District C ourt of Appeal has already

granted VieringÓs motion for fees and costs, and the Division of

Administrative Hearings is charged only with a determination of

the amount of the fees and costs, the CommissionÓs objections as

to the propriety of the award are n ot addressed by this Order.

See Hernstadt v. Br ickel Bay Club Condo. Ass'n , Inc. , 602 So. 2d

967 (Fla. 3d DCA 1992).

Based upon the foregoing, it is hereby Ordered that

Respondent, Florida Commission on Human Relations on behalf of

Bahiyyih Watson, pay to Petitioner, Christina Viering, the sum of

$37,423.00 in attorneyÓs fees and $512.00 in costs, plus pre -

judgment and post - judgment interest.

DONE AND ORDERED this 26th day of August , 2013 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of August , 2013 .

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Daniel J. Woodring, Esquire

The Woodring Law Firm

Suite 1 - C

203 North Gadsden Street

Tallahassee, Florida 32301

Cheyanne Michelle Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Michael Edward Long, Esquire

BrewerLong, PLLC

237 Lookout Place, Suite 100

Maitland, Florida 32751

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review p roceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.