JUAN CARLOS PLANAS

v.

MIAMI DADE COUNTY COMMISSION ON ETHICS AND PUBLIC TRUST

Before: TRAWICK, DE LA O, and ARECES, R., JJ.

TRAWICK, Judge.

This appeal, brought by Appellant, Juan-Carlos Planas ("Appellant") against Appellee, the Miami-Dade County Commission on Ethics and Public Trust ("Commission"), seeks review of the Commission's order awarding attorney's fees to Michael Gongora, Esq., as a sanction for what the Commission deemed to be a frivolous complaint.

Facts

On September 25, 2023, Planas filed a sworn Complaint against Mr. Gongora, a candidate for Mayor of Miami Beach. The complaint alleged that Gongora had failed to properly file a gift disclosure as required by law.¹ On November 8, 2023, the Commission voted to dismiss the Complaint against Mr. Gongora for lack of legal N¹ The complaint asserted that Gongora was required to report this "gift," which he failed to do in violation of campaign finance law. [*3] sufficiency pursuant to Article LXXVIII, Section 2-1074 of the Miami- Dade County Code and Rule 4.2(a) of the Miami-Dade County Commission on Ethics Rules of Procedure. The Commission subsequently issued its Public Report and Final Order dismissing the complaint on November 21, 2023.² On December 20, 2023, Mr. Gongora filed his Verified Petition with the Commission seeking fees and costs, alleging that the Complaint filed by Planas was filed in bad faith. On May 15, 2024, the Commission held a hearing on Gongora's Motion for fees. Planas asserted that the Complaint was filed in good faith. The Commission heard the arguments of both parties regarding entitlement and voted to grant the petition. In doing so, the N2 The Commission relied upon Section 2-11.1(e)(5) of the Miami-Dade Code (the Miami-Dade Ethics Code). That provision reads Disclosure. Any person included in the term defined in subsection (b)(1) through (b)(6) shall disclose as provided herein any gift, or series of gifts from any one person or entity, having a value in excess of one hundred dollars ($100.00). Said disclosure shall be made by filing a copy of the disclosure form required by Chapter 112, Florida Statutes, for "local officers" with the Clerk of the Board of County Commissioner simultaneously with the filing of the form with the Secretary of State.

Subsections (b)(1) through (b)(6) include commissioners, autonomous personnel, quasi-judicial personnel, advisory personnel, departmental personnel, and employees. In reaching their decision, the Commission found that Gongora was not one of the persons required by this provision to file gift disclosures. Mayoral candidates were not included within the listed definitions. However, the Commission apparently relied upon an interpretation of this provision given by their general counsel in a memo dated October 27, 2023. In that memo, the general counsel stated at footnote¹ "A candidate that qualifies for the office of Miami Beach Mayor is required to report gifts on a Form 9 as of the date that the candidate qualifies for office," citing Section 112.3148(2)(d), Florida Statutes.

While the Commission made it clear that they did not enforce the requirements of the Florida Ethics Code, their decision was in harmony with the previous finding of the Florida Commission on Ethics. [*4] Commission failed to consider the factual accuracy or the legal plausibility of the allegations in the complaint. Instead, the Commission found that because Planas was an election attorney, he should have known that the law did not require Gongora to file a gift disclosure. Further, the Commission found that Planas had a duty to disclose that the Florida Ethics Commission had already dismissed the complaint under consideration by the County Commission.³ On July 10, 2024, the Commission held a hearing regarding the amount of fees and costs to be awarded. Prior to the hearing, Mr. Gongora attached a list of attorney's fees associated with litigating entitlement to fees totaling $4,760 (which was over four times the amount charged for responding to the Ethics Complaint). These N3 In their order dismissing the complaint filed by Planas, the Florida Ethics Commission interpreted Section 112.3148(8), Florida Statutes. That section reads:

Each reporting individual or procurement employee shall file a statement with the Commission on Ethics not later than the last day of each calendar quarter, for the previous calendar quarter, containing a list of gifts which he or she believes to be in excess of $100 in value, if any, accepted by him or her, for which compensation was not provided by the donee to the donor within 90 days of receipt of the gift to reduce the value to $100 or less.

In considering whether the term "reporting individual" applied to Gongora, the Florida Ethics Commission applied the definition contained in Section 112.3148(2)(d):

"Reporting individual" means any individual, including a candidate upon qualifying, who is required by law, pursuant to s. 8, Art. II of the State Constitution or s. 112.3145, to file full or limited public disclosure of his or her financial interests or any individual who has been elected to, but has yet to officially assume the responsibilities of, public office. [*5] claimed attorney's fees were not accompanied by an affidavit or any signed document provided by Mr. Gongora's attorney, nor was there sufficient evidence supporting the accuracy or reasonableness of the fees.

The Commission ultimately found that Mr. Gongora was entitled to an award of fees that included the litigation regarding the entitlement of fees and voted to award $5,675.00 to Mr. Gongora. This amount consisted of the $915.00 for fees charged to respond to the Ethics Complaint and $4,760.00 for additional fees charged to litigate the issue of entitlement to attorney's fees. However, the Commission made no findings of fact on the accuracy and reasonableness of the requested fees.

Analysis

The Commission is granted authority to deem a complaint frivolous pursuant to Section 2-1074(t) of the Miami-Dade County Code, titled "Frivolous or groundless complaints," which states in pertinent part:

Sec. 2-1074. - Procedure on complaint of violation or request for advisory opinion within Ethics Commission's jurisdiction. [*6] (t) Frivolous or groundless complaints. In any case in which the Ethics Commission determines that the complaining party filed a frivolous or groundless complaint as defined in Section 57.105, Florida Statutes, the Ethics Commission shall order the complaining party to pay any costs and attorney's fees incurred by the Ethics Commission and/or the alleged violator. The determination by the Ethics Commission regarding whether a complaint is frivolous or groundless shall be deemed conclusive. The County Commission or any city commission may pay any attorney's fees and costs incurred by a respondent when the Ethics Commission finds either no probable cause to believe that a violation has been committed or that no violation has been committed.

Id.

Section 57.105 of the Florida Statutes, states as follows, in pertinent part:

57.105. Attorney's fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then existing law to those material facts.

*** [*7] (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.

(6) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

Id.

"Section 57.105 must be applied with restraint to ensure that it serves its intended purpose of discouraging baseless claims without casting 'a chilling effect on use of the courts.'" MacAlister v. Bevis Const., Inc., 164 So. 3d 773 (Fla. 2d DCA 2015) (quoting Swan Landing Dev., LLC v. First Tenn. Bank Nat'l Ass'n, 97 So. 3d 326, 328 (Fla. 2d DCA 2012)); see also Minto PBLH, LLC v. 1000 Friends of Fla. Inc., 228 So. 3d 147, 149 (Fla. 4th DCA 2017) (explaining that although the plaintiffs raised "tenuous" claims, when "there is an arguable basis in law and fact for a party's claim, a trial court may not sanction that party under section 57.105"). [*8] "To award fees under the statute, the trial court must find that the action was 'frivolous' or so devoid of merit both on the facts and the law as to be completely untenable." Chue v. Lehman, 21 So. 3d 890, 891-92 (Fla. 4th DCA 2009) (quoting Murphy v. WISU Props., Ltd., 895 So. 2d 1088, 1093-94 (Fla. 3d DCA 2004)). “Moreover, that finding 'must be based upon substantial competent evidence presented to the court at the hearing on attorney's fees or otherwise before the court and in the trial court record." Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 618 (Fla. 4th DCA 2006) (quoting Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138, 1141 (Fla. 4th DCA 2001)). "Where the party reasonably believes the factual basis for its claim exists, it is entitled to proceed with its claims and seek to prove those facts. If attempts to prove those facts are fruitless, that is still not cause for sanctions where the party's initial belief was well-founded." Tr. Mortg., LLC v. Ferlanti, 193 So. 3d 997 (Fla. 4th DCA 2016).

Based upon our review of the law, hearing transcripts, and the record in this case, this Court finds that the Commission failed to observe the essential requirements of the law and that the Commission's ruling was not supported by competent, substantial [*9] evidence. We find nothing in the record to support a conclusion that the Complaint at issue was frivolous or made in bad faith within the ambit of Section 2-1074(t) of the Miami-Dade County Code, which incorporates Section 57.105 of the Florida Statutes and interpretative case law. Even though the Commission may have disagreed with the interpretation of the provision made by Planas in the complaint, that did not render the argument frivolous.⁴ Planas did what attorneys do every day - argue interpretations of applicable law. His arguments were not outside the realm of reasonableness.⁵ Furthermore, neither the fact that Planas is an elections attorney nor that the Florida Ethics Commission dismissed the complaint, N4 The Miami-Dade Commission on Ethics Rules of Procedure states: "This rule is not intended to deter or otherwise discourage the rights of persons to file complaints with the Ethics Commission." Arguably, that is exactly the impact of the finding of frivolousness made by the Commission here. While the discretion given the Commission by this procedural rule is broad, like Section 2-1074(t) of the Miami-Dade Code, this procedural rule incorporates the definition of Section 57.105 of the Florida Statutes.

N5 Indeed, in our review of Section 112.3148(2)(d), Florida Statutes, the provision relied upon by the Florida Ethics Commission, a plausible argument can be made that the term "Reporting individual," i.e., those individuals required to report gifts, can be read more expansively than the interpretation rendered by that commission. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132-33 (2012) (Presumption of Nonexclusive "Include" Canon: "The verb 'to include' introduces examples, not an exhaustive list."). Despite the County Commission's seeming reliance only on the County Ethics Code provision, it gave great weight to the State Ethics Committee decision in making its determination here. For example, the Commission's general counsel referenced the interpretation given by the State Commission in her memo about who was required to report a gift (see the discussion above in Footnote 2). Further, the State Commission's decision was the topic of much discussion during the attorney's fee hearing before the Commission. Quite tellingly, Planas' failure to disclose the State Commission decision was one of the primary bases for the County Commission's finding of frivolousness. If the State Commission's decision and interpretation of State law had nothing to do with the County Commission's decision, why would the failure to disclose matter? [*10] changes our conclusion. While we agree that it would have been appropriate for Planas to disclose the Florida Ethics Commission's decision to the Appellee, such a failure to disclose does not indicate that the arguments made in the complaint were frivolous or made in bad faith.

Finally, the amount of the attorney's fees award was not supported by competent, substantial evidence. No affidavits or testimony are present in the record to support the award of the supplemental fees claimed by Gongora.

Accordingly, the decision below is hereby QUASHED. This matter is REMANDED to the Commission for further proceedings consistent with this opinion.

DE LA O, and ARECES, R., JJ., concur. COPIES FURNISHED TO COUNSEL OF RECORD

AND TO ANY PARTY NOT REPRESENTED BY COUNSEL