text:
    SARASOTA CITIZENS FOR RESPONSIBLE GOVERNMENT, etc., et al., Appellants, v. CITY OF SARASOTA, Florida, etc., et al., Appellees.
    No. SC10-1647.
    Supreme Court of Florida.
    Oct. 28, 2010.

      Andrea Flynn Mogensen of the Law Office of Andrea Flynn Mogensen, Sarasota, FL: Gregg D. Thomas and Paul R. McA-doo of Thomas and Locicero, PL, Tampa, FL, for Appellants.
    Susan H. Churuti and Michael S. Davis of Bryant Miller Olive, P.A., Tampa, FL and Robert M. Fournier, City Attorney and Michael A. Connolly, Deputy City Attorney of Fournier and Connolly, P.A., Sarasota, FL, on behalf of The City of Sarasota; Stephen E. DeMarsh, County Attorney, Frederick J. Elbrecht, and Alan W. Roddy, Deputy County Attorneys, Sarasota, FL, and Ed Vogel, III and Michael Lawrence Wiener of Holland and Knight, Lakeland, FL, on behalf of Sarasota County, Board of County Commissioners of Sarasota County, Florida, Shannon Staub, Nora Patterson and Joe Barbetta, for Ap-pellees.
    Victor Lee Chapman of Barrett, Chapman and Ruta, P.A., Orlando, FL, on behalf of First Amendment Foundation, Inc., as Amicus Curiae.
   PER CURIAM.

Sarasota Citizens for Responsible Government, et al., (collectively referred to as “Citizens”) appeal a trial court’s judgment validating bonds proposed for issuance by the City of Sarasota and the County of Sarasota in furtherance of an agreement bringing the Baltimore Orioles to Sarasota for spring training. On appeal in this Court, Citizens only allege Sunshine Law violations by the County. They do not challenge any other aspect of the bond validation proceedings, and they do not appeal the trial court’s determination that the City did not violate the Sunshine Law. For the reasons explained below, we affirm the trial court.

I. BACKGROUND

As the trial court summarized,

[t]he Sarasota County Board of County Commissioners [Board] entered into a Memorandum of Understanding (MOU) with the Baltimore Orioles (Orioles) in July, 2009. The MOU obligated the Orioles, among other things, to relocate to Sarasota for spring training. Sarasota County is obligated to fund construction of facilities/facility improvements at the Ed Smith complex, the location within the City of Sarasota where the Orioles are obligated to conduct spring training activities, and other facilities located elsewhere in the County.
Negotiation of the MOU with the Orioles followed unsuccessful attempts to retain the Cincinnati Reds in Sarasota and to secure relocation of the Boston Red Sox to Sarasota. In November, 2008, the [Board] instructed the County Administrator, James Ley, to initiate negotiations with the Orioles. Mr. Ley delegated this task to Deputy County Administrator David Bullock (Bullock). Negotiations between the County and Orioles began immediately and continued until the terms of the MOU were finalized in July, 2009. The MOU was approved by the [Board] at a public meeting on July 22, 2009. At that public hearing, the [Board] adopted an
amended or modified Tourist Development Tax Ordinance, in part to provide part of the County’s funding obligation under the MOU; approved an Interlocal Agreement with the City which included an obligation of the City to convey the Ed Smith complex to the County, to transfer funds to the County to offset part of the cost of construction and to undertake responsibility for environmental remediation, if required, at the complex; and adopted a resolution authorizing issuance of bonds for the purpose of financing costs associated with the improvements required by the MOU. Simultaneously, the City also authorized issuance of bonds to fulfill its obligations pursuant to the [I]nterlocal [A]greement.

More specifically, the MOU between the County and the Orioles states that the County shall provide “28.7 million to the Project” and that it is estimated the City’s contribution will be approximately $7.5 million, for a total not to exceed “$31.2 million from all governmental sources.” The MOU details that the proceeds of the County’s bond issuance is “expected to be approximately $18.7 Million,” that the proceeds of “[c]ash collections of one-half (1/2) of one percent (1%) of the County’s Tourist Development Tax” is “estimated to be approximately $2 million,” and that the County’s “cash contributions from legally available non-ad valorem revenues” will not exceed $3 million. The County is also required to maintain and contribute annually to a capital repair and improvements fund with the Orioles also contributing to this fund. The MOU further explains that the City’s bond issue serviced by funds from the State of Florida Office of Tourism, Trade and Economic Development (OTTED) or a cash equivalent of non-ad valorem revenues will be “in an amount no less than $7.5 million.”

The MOU calls for the renovation of the Ed Smith Stadium complex, including a renovated clubhouse, batting cages, pitching mounds, practice fields, parking facilities, utilities, etc. Additionally, the MOU calls for renovations at the Orioles’ minor league spring training facilities located at County-owned Twin Lake Park, including practice fields, a renovated clubhouse, administrative offices, batting cages, utilities, weight rooms, pitching mounds, etc. The MOU provides that the Orioles’ lease of these facilities commences on November 1, 2009 and continues through October 31, 2039. The Orioles may not relocate its major league and minor league spring training operations from Sarasota during this lease term, and the Orioles’ rent for this lease term is $1.00. However, the Orioles are generally responsible for the operating, maintenance, and repairs expenses. The Orioles are to manage the ticketing and parking operations and are to receive the revenue from concessions. But the County maintains some ability to use both the major league and minor league sites for civic-oriented events and for natural disaster purposes. In the MOU, the County and the Orioles also “acknowledge that it is mutually beneficial to facilitate the establishment of a youth baseball academy” at the minor league site.

The Interlocal Agreement between the City and the County requires the City to transfer ownership of the Ed Smith Stadium complex to the County. It also requires the City to pay the environmental remediation costs associated with this facility. The City is further required to “use its best efforts to issue its bonds to be repaid by the OTTED funds ... in an amount estimated to be not less than $7.5 million.”

The terms of the MOU and Interlocal Agreement were the result of extensive negotiations. In furtherance of the Board’s directive to begin negotiations with the Orioles, Bullock retained two consultants for their baseball expertise and also consulted with County staff, including the County’s chief financial officer, the County’s attorney, the County’s parks and recreation director, and a County planning coordinator. Bullock’s communications and discussions with these individuals were not advertised or otherwise treated as public meetings.

The negotiations with the Orioles took place intermittently over a series of months through meetings, phone calls, and e-mailed documents involving different individuals, all coordinated by Bullock. Representatives of the Sarasota Chamber of Commerce became involved to advocate for an agreement with the Orioles, and the Chamber funded a study of the economic impact of spring training in Sarasota. The Orioles invoked the confidentiality provision of section 288.075, Florida Statutes (2009), to keep confidential its proprietary economic development information relating to the proposed transaction. These negotiations led to the July 22, 2009 presentation to the Board of the Interlocal Agreement and the MOU and several mechanisms to finance renovations to the stadium and other facilities.

The negotiations with the Orioles took place alongside a series of discussions by the Board at its public meetings. For example, on November 4, 2008, the Board approved a motion directing staff to open negotiations using one-half percent of tourist development tax revenue and potential City contributions. On November 18, 2008, Bullock provided a status report of the meetings and discussed the location of a proposed new facility and the components of the new facility. County staff also presented information regarding capital costs, potential funding sources, and the economic impact of the proposed new facility. On November 18, the Board also discussed specific components of the potential deal, including operations and maintenance payments and a proposed Cal Rip-ken youth baseball academy. Then, on December 9, 2008, the Board discussed a proposal by one of the commissioners that involved $31.6 million financed with one-half percent of tourist development tax money to renovate the existing Ed Smith Stadium. On December 17, 2008, Bullock requested guidance from the Board on acceptable parameters for a proposal to retain Major League Baseball. Both County staff and Orioles representatives made presentations. Also on December 17, the Board discussed and rejected an Orioles’ proposal for a $58 million spring training facility to be funded by an additional one-quarter percent of tourist development tax money, but then approved a counteroffer involving a lower dollar figure. At public meetings on January 27, 2009 and February 11, 2009, the Board again discussed the Orioles negotiations. On March 17, 2009, the Board directed the County Administrator to send correspondence signed by the Board Chair to the Orioles requesting a written counteroffer.

At various points after the start of negotiations with the Orioles in November 2008, e-mails from constituents or others to members of the Board regarding the Orioles were copied to other Board members and sometimes included the reactions from other Board members. In at least one e-mail correspondence, a comment was directly addressed from one Board member to another. The last e-mail among Board members produced at trial was sent on April 12, 2009.

Thereafter, at its properly noticed public meeting on April 14, 2009, the Board discussed the Baltimore Orioles negotiations, including construction costs and potential funding, and one of the commissioners presented a detailed, draft counter-proposal term sheet outlining funding, terms of the lease, advertising, the youth facility, and an agreement with the City, among other issues. The Board rejected that commissioner’s proposal as well as another commissioner’s alternative proposal. At an April 21, 2009 meeting, the Board discussed the Orioles’ proposal and directed the County Administrator to send correspondence to the City asking for formal confirmation of the City’s willingness to issue bonds. At a May 13, 2009 meeting, the Board discussed the City’s resolution, and Bullock advised the Board on discussions with the Orioles. The Board discussed stadium costs and financing and then directed the County Administrator to proceed with negotiations providing funding in the amount of $28.2 million contingent upon specific terms relating to operations and maintenance, advertising, construction management, stadium uses, property taxes, terms of occupancy, and the Cal Ripken youth facility. Then, on May 26, 2009, the Board discussed the Orioles’ response as well as funding sources for the renovation of the stadium. One commissioner noted that she “could handle” another $3 million in addition to the prior $28.2 million offer. And members of the public, including a representative of Citizens, spoke regarding the proposed facilities.

Ultimately, these negotiations and meetings resulted in Board action on July 22, 2009. On that date, the Board held a public hearing that lasted over four hours. The Board heard from approximately forty citizens, including several representatives of Citizens. Bullock and staff gave a presentation on the provisions of the proposed documents and answered questions posed by the Board.

Then, on February 19, 2010, after Citizens filed a suit alleging Sunshine Law violations against the City and the County, the Board held another public hearing for the reconsideration and ratification of the Interlocal Agreement, the MOU, and related actions. The Board also adopted a new resolution authorizing the sale of bonds to finance the County’s portion of the facility renovations.

Additionally, the County and the City filed separate complaints seeking validation of the bonds proposed for issuance in furtherance of the agreement with the Orioles. The County’s validation complaint related to County Resolution No. 2010-029, which was adopted on February 19, 2010 and which authorized three types of bonds: (1) Capital Improvement Revenue Bonds, Series 2010A (Federally Taxable-Build America Bonds-Direct Subsidy); (2) Capital Improvement Revenue Bonds, Series 2010B (Federally Taxable-Build America Bonds-Recovery Zone Economic Development Bonds-Direct Subsidy); and (3) Capital Improvement Revenue Bonds, Series 2010C. And the City’s validation complaint related to City Resolutions No. 10R-2185 and 10R-2139, which were adopted on November 2, 2009 and December 7, 2009 and which authorize Sales Tax Payments Revenue Bonds, Series 2010 (Federally Taxable-Build America Bonds-Recovery Zone Economic Development Bonds-Direct Subsidy). Citizens alleged Sunshine Law violations as objections to both of these bond validation actions.

The trial court consolidated the bond validation proceedings and Citizens’ Sunshine Law complaint. After a four-day bench trial, the trial court validated the County’s and the City’s proposed bonds and denied Citizens’ complaint. On appeal in this Court, Citizens allege that the trial court erred in ruling that (a) Bullock’s consultations were not required to be in the sunshine, (b) the one-on-one staff briefings of County Board members prior to the July 22, 2009 public meeting were not a violation of the Sunshine Law, and (c) any e-mail violations were cured by the Board’s public, meetings.

II. THE NEGOTIATIONS TEAM

Citizens contend that the trial court erred when ruling that Bullock and the individuals he consulted in negotiating with the Orioles (the so-called negotiations team) were not a board or commission subject to the Sunshine Law. However, we agree with the City and County and affirm the trial court.

At the outset, we note the following:

[A] trial court must make three determinations during a bond validation proceeding: (1) whether the public body has the authority to issue the subject bonds; (2) whether the purpose of the obligation is legal; and (3) whether the authorization of the obligation complies with the requirements of law. City of Gainesville v. State, 863 So.2d 138, 143 (Fla.2003). On appeal, this Court reviews the “trial court’s findings of fact for substantial competent evidence and its conclusions of law de novo.” Id. (citing City of Boca Raton v. State, 595 So.2d 25, 31 (Fla.1992); Panama City Beach Cmty. Redev. Agency v. State, 831 So.2d 662, 665 (Fla.2002)).

Bay County v. Town of Cedar Grove, 992 So.2d 164, 167 (Fla.2008). This appeal regarding alleged Sunshine Law violations only concerns the third item above, whether the authorization complies with the requirements of law.

Article I, section 24(b) of the Florida Constitution provides:

All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.

And section 286.011, Florida Statutes (2009), commonly known as the Government in the Sunshine Law, provides in part:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

Because section 286.011 “was enacted in the public interest to protect the public from ‘closed door’ politics ... the law must be broadly construed to effect its remedial and protective purpose.” Wood v. Marston, 442 So.2d 934, 938 (Fla.1983). As this Court has explained,

[t]he statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.

Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.1974). “Mere showing that the government in the sunshine law has been violated constitutes an irreparable public injury....” Id. Therefore, where officials have violated section 286.011, the official action is void ab initio. Id.

All governmental authorities in Florida are subject to the requirements of the Sunshine Law unless specifically exempted. See art. I, § 24(c), Fla. Const. The requirements may also apply to committees subordinate to or selected by traditional governmental authorities. This Court in Wood explained that the disposi-tive question is whether “decision-making authority” has been delegated to the committee. 442 So.2d at 939. Where the committee has been delegated decision-making authority, the committee’s meetings must be open to public scrutiny, regardless of the review procedures eventually used by the traditional governmental body. See id. at 939-40 (“Where a body merely reviews decisions delegated to another entity, the potential for rubber-stamping always exists. To allow a review procedure to insulate the decision itself from public scrutiny invites circumvention of the Sunshine Law.”). In contrast, a committee is not subject to the Sunshine Law if the committee has only been delegated information-gathering or fact-finding authority and only conducts such activities. See id. at 940-41; see also Lyon v. Lake County, 765 So.2d 785, 789 (Fla. 5th DCA 2000) (“When a committee has been established for and conducts only information gathering and reporting, the activities of that committee are not subject to section 286.011, Florida Statutes.”). Whether, in fact, the delegation is a delegation of decision-making authority or fact-finding authority is evaluated according to the “nature of the act performed, not on the make-up of the committee or the proximity of the act to the final decision.” Wood, 442 So.2d at 939 (emphasis omitted).

In this case, the trial court’s order included factual findings regarding the roles of the individuals Bullock consulted when negotiating with the Orioles. Specifically, the trial court found that “the people and entities Bullock met with ... operated in the roles of advisor, consultant and facilitator to assist him in the performance of his duty to negotiate with the Orioles.” The trial court found that these individuals “did not deliberate with, or without, him.” “Bullock retained and exercised the ultimate authority to negotiate the terms of the MOU that would be submitted to the [Board] for consideration.”

These factual findings are supported by competent substantial evidence in the record. See Lyon, 765 So.2d at 790 (reviewing trial court’s factual finding that a meeting was informational for competent substantial evidence in the record). For example, Bullock testified that there was never a committee formed to negotiate any aspects of the MOU. Bullock also testified that he only consulted with the County’s chief financial planning officer for information regarding potential funding and financing mechanisms and that the County’s parks and recreation director “would provide information because this is essentially a recreational facility.” Additionally, the County’s project coordinator testified that she provided staff support by making copies, typing letters, and scheduling meeting rooms. There was also testimony from the County Administrator that the baseball experts’ responsibilities were “to advise staff as to the makeup of what should be [in] an MOU, the issues to be aware of[, and] to provide some comparative analysis of other such deals around the country.” And individual members of the so-called negotiating team testified that they were not delegated any authority to negotiate with the Orioles and that everything was under the direction of Bullock. Therefore, there is competent substantial evidence in the record to support the trial court’s findings that the individuals consulted by Bullock performed an informational and fact-finding role in assisting Bullock.

Because the individuals consulted by Bullock served an informational role, the so-called negotiations team did not constitute an advisory committee subject to the requirements of the Sunshine Law. As explained above, only advisory committees acting pursuant to a delegation of decision-making authority by the governmental entity are subject to the open meetings requirement of section 286.011. Advisory committees functioning as fact-finders or information gatherers are not subject to section 286.011. See Lyon, 765 So.2d at 789; Cape Publ’ns, Inc. v. City of Palm Bay, 473 So.2d 222 (Fla. 5th DCA 1985); Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976). This is not a situation where Bullock and the individuals he consulted made joint decisions. Cf. Dascott v. Palm Beach County, 877 So.2d 8 (Fla. 4th DCA 2004). Instead, these individuals were simply providing advice and information, which does not make the negotiations team a board or commission subject to the Sunshine Law. See, e.g., McDougall v. Culver, 3 So.3d 391, 393 (Fla. 2d DCA 2009) (“[T]he senior officials provided only a recommendation to the Sheriff but they did not deliberate with him nor did they have decision-making authority. Therefore, we conclude that the use of the memoranda did not violate the Sunshine Law.”); Jordan v. Jenne, 938 So.2d 526, 530 (Fla. 4th DCA 2006) (“Because the [group] provided only a mere recommendation to the inspector general and did not deliberate with the inspector general, the ultimate authority on termination, we conclude that the [group] does not exercise decision-making authority so as to constitute a ‘board’ or ‘commission’ within the meaning of section 286.011, and as a result, its meetings are not subject to the Sunshine Act.”).

Citizens argue that the statutes regarding economic development agencies should alter this analysis. Citizens specifically point to section 288.075(2)(a), Florida Statutes (2009), which provides:

Upon written request from a private corporation, partnership, or person, information held by an economic development agency concerning plans, intentions, or interests of such private corporation, partnership, or person to locate, relocate, or expand any of its business activities in this state is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution for 12 months after the date an economic development agency receives a' request for confidentiality or until the information is otherwise disclosed, whichever occurs first.

The County acknowledges that Bullock was acting as an economic development agency and that the Orioles’ proprietary information was not released pursuant to section 119.07(1), Florida Statutes (2009), of the Public Records Act after the Orioles invoked the exemption outlined in section 288.075(2)(a). However, this does not mean Bullock and the individuals he consulted were a board or commission within the meaning of section 286.011 of the Sunshine Law. If an individual is not already a member of a board or commission governed by the Sunshine Law, nothing about working on economic development projects or receiving proprietary information converts him or her into one.

Accordingly, this Court affirms the trial court’s ruling regarding Bullock and the individuals he consulted while negotiating with the Orioles.

III. ONE-ON-ONE BRIEFINGS

Citizens next argue that the trial court erred in determining that the private staff briefings of individual board members in preparation for the July 22, 2009 public hearing did not violate the Sunshine Law. We agree with the contrary arguments of the City and County and affirm the trial court.

This Court has explained that meetings within the meaning of the Sunshine Law include any gathering, formal or informal, of two or more members of the same board or commission “where the members deal with some matter on which foreseeable action will be taken by the Board.” Tolar v. School Bd. of Liberty County, 398 So.2d 427, 428 (Fla.1981); see also Bd. of Pub. Instruction v. Doran, 224 So.2d 693, 698 (Fla.1969). However, public officials may call upon staff members for factual information and advice without being subject to the Sunshine Law’s requirements. See Occidental Chem. Co. v. Mayo, 351 So.2d 336, 342 (Fla.1977); Wood, 442 So.2d at 940 (“The Second District found no violation, holding, inter alia, that the meetings were not decision-making in nature, but were ‘for the purpose of “fact-finding” to assist him in the execution of [his] duties,’ [Bennett,] 333 So.2d at 99, and we approve the holding that such fact-finding staff consultations are not subject to the Sunshine Law.”).

Here, Bullock, individually and assisted by other County staff, held one-on-one meetings in the two- or three-day period immediately preceding the Board’s public meeting on July 22, 2009. These meetings were informational briefings regarding the contents of the MOU, where Bullock would also ask if the individual members had any questions about the MOU. There is no evidence that Bullock or other County staff communicated what any commissioner said to any other commissioner.

These informational briefings for individual members of the Board were not violations of the Sunshine Law. As this Court has explained,

members of a collegial administrative body are not obliged to avoid their staff during the evaluation and consideration stages of their deliberations. Were this so, the value of staff expertise would be lost and the intelligent use of employees would be crippled.

Occidental, 351 So.2d at 342 n. 10. Therefore, we affirm the trial court’s ruling regarding these one-on-one meetings.

IV. E-MAILS

Lastly, Citizens contend that the trial court erred by ruling that any violations committed in e-mail discussions between board members were cured by the Board’s public meetings that were held up to and including July 22, 2009. Agreeing with the contrary arguments of the City and County, we affirm the trial court.

In Tolar, 398 So.2d at 429, this Court held that Sunshine Law violations can be cured by “independent, final action in the sunshine,” which this Court distinguished from mere ceremonial acceptance or perfunctory ratification of secret actions and decisions. See also Zorc v. City of Vero Beach, 722 So.2d 891, 903 (Fla. 4th DCA 1998) (“[OJnly a full, open hearing will cure a defect arising from a Sunshine Law violation. Such violation will not be cured by a perfunctory ratification of the action taken outside of the sunshine.”); Monroe County v. Pigeon Key Historical Park, Inc., 647 So.2d 857, 861 (Fla. 3d DCA 1994) (“Governmental actions will not be voided whenever governmental bodies have met in secret where sufficiently corrective final action has been taken.”).

In Tolar, a school superintendent-elect met privately with school board members and discussed, among other things, the removal of Tolar as director of administration and abolition of his position. 398 So.2d at 427. At a subsequent public meeting in which Tolar was present and “given full opportunity to express his views,” the school board members voted to transfer Tolar to another position and abolish his position. Id. Tolar sued for injunctive relief, alleging a violation of section 286.011. Id. As this Court noted, “By the express terms of section 286.011, any resolution, rule, regulation, or formal action taken at these secret meetings would not be binding.” Id. at 428. Yet this Court declined to invalidate the action taken by the school board. Id. Instead, this Court distinguished Tolar from its previous holding in Gradison, 296 So.2d 473, where this Court held void formal action that “was merely the crystallization of secret decisions.” Tolar, 398 So.2d at 428.

As explained in Tolar, the Gradison holding invalidating what was merely a summary approval of secret decisions

does not mean, however, that public final action of the Board will always be void and incurable merely because the topic of the final public action was previously discussed at a private meeting....
... [H]ere[,] the Board took independent, final action in the sunshine in voting to abolish the position. The Board’s action was not merely a ceremonial acceptance of secret actions and was not merely a perfunctory ratification of secret decisions at a later meeting open to the public.

398 So.2d at 428-429.

In this case, e-mails from constituents to members of the Board were copied to other members and sometimes led to comments between Board members regarding the topic of bringing the Orioles to Sarasota for spring training. The last such email exchange, which possibly violated the Sunshine Law, occurred on April 12, 2009. However, the Board conducted multiple public meetings subsequent to that April 12 exchange where the topic of Orioles spring training was discussed and considered. For example, on April 14, 2009, the Board publicly rejected a commissioner’s detailed proposal for an agreement with the Orioles as well as another commissioner’s alternative proposal. Then, on May 13, 2009, the Board publicly discussed stadium costs and financing and directed the County Administrator to proceed with negotiations providing funding in the amount of $28.2 million contingent upon specific terms relating to operations and maintenance, advertising, construction management, stadium uses, property taxes, terms of occupancy, and the Cal Ripken youth facility. Then, on May 26, 2009, the Board considered the Orioles’ response as well as funding sources for the renovation of the stadium. One commissioner noted that she “could handle” another $3 million in addition to the prior $28.2 million offer. Ultimately, on July 22, 2009, the Board held a properly noticed public hearing and approved the MOU and the Interlocal Agreement after a multi-hour discussion. In fact, representatives of Citizens spoke at that July 22 hearing as well as the prior meeting on May 26.

Based upon the fact that, subsequent to the last possibly violative e-mail, multiple proposals were discussed and rejected before one was finally approved, it is clear the Board took independent, final action in the sunshine regarding Orioles spring training in Sarasota. This simply is not the case of a “ceremonial acceptance of secret actions [or] merely a perfunctory ratification of secret decisions at a later meeting open to the public.” Tolar, 398 So.2d at 429. Therefore, any possible email violations were cured.

CONCLUSION

We affirm the trial court’s judgment validating bonds proposed for issuance by the City of Sarasota and the County of Sarasota in furtherance of the agreement bringing the Baltimore Orioles to Sarasota for spring training. Because Bullock’s so-called negotiations team only served an informational role, it was not subject to the requirements of the Sunshine Law. The County also did not violate the Sunshine Law when Bullock, assisted by other County staff, briefed individual Board members prior to the July 22, 2009 public meeting. Finally, any possible violations that occurred when Board members circulated e-mails among each other were cured by subsequent public meetings regarding the negotiations and agreement with Orioles.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(2), Fla. Const.; see also Rowe v. Pinellas Sports Auth., 461 So.2d 72, 74 (Fla.1984).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Philip David IRISH, Respondent.
    Nos. SC08-1375, SC08-1552, SC08-1891, SC08-2398.
    Supreme Court of Florida.
    Nov. 4, 2010.

      John F. Harkness, Executive Director, Kenneth Lawrence Marvin, Staff Counsel, and Randi Klayman Lazarus, Bar Counsel, The Florida Bar, Tallahassee, Florida, for Complainant.
    Richard B. Marx of the Law Offices of Richard B. Marx, Miami, Florida, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Philip David Irish be found guilty of professional misconduct and disbarred effective, nunc pro tunc, October 8, 2008. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact, recommendations of guilt, and recommended sanction.

BACKGROUND

The Florida Bar filed a Notice of Determination or Judgment of Guilt demonstrating that Respondent was guilty of six felony charges. On October 8, 2008, the Court issued an order suspending Respondent, pursuant to Rule Regulating the Florida Bar 3-7.2 (Procedures Upon Criminal or Professional Misconduct).

Thereafter, a referee was appointed to consider Respondent’s disciplinary conduct. Before the referee, the parties submitted a joint stipulation agreeing to the facts and several rule violations in the four consolidated disciplinary cases. After holding a hearing, the referee submitted a report for the Court’s review, in which the referee made the following findings and recommendations for the four consolidated cases.

Case No. SC08-1891. In July 2008, in State v. Irish, No. 05019059CF10A (Fla. 17th Cir.Ct. July 15, 2008), Respondent was adjudicated guilty of six felony charges, which included (1) trafficking in gamma butyrolactone (GHB); (2) two counts of possession of a controlled substance without a prescription; (8) possession of cocaine; (4) possession, sale, or delivery of methenolone; and (5) possession, sale, or delivery of mesterolone. He was sentenced to thirty months’ incarceration in a Florida State prison -with a credit of 120 days time served. Based upon Respondent’s misconduct and the six felonies, the referee recommended that Respondent be found guilty of violating Rule Regulating the Florida Bar 4 — 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer).

Case No. SC08-2398

Count I. Mr. Rodriguez had retained Respondent to represent him in five lawsuits. In June 2007, Mr. Rodriguez discovered that Respondent had abandoned his cases after vacating his office. Respondent had missed scheduled court dates, hearings, and a deposition. Mr. Rodriguez’s efforts to communicate with Respondent were unsuccessful. In addition, Respondent failed to return case files.

Based on this conduct, the parties stipulated that Respondent is guilty of violating Rules Regulating the Florida Bar 8-4.2 (violation of the Rules of Professional Conduct is a cause for discipline); 3-4.3 (the commission by a lawyer of an act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline); 4-1.1 (a lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation); 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a) (a lawyer shall (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law); 4-1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); 4-1.5(a)(l) (an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost); 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II. Mr. Mallor retained Respondent for a civil matter. Mr. Mallor’s efforts to contact Respondent and determine the progress of the case were unsuccessful. Respondent failed to file appropriate pleadings and neglected the case. For this count, the parties stipulated that Respondent is guilty of violating the same rules as set forth in Count I.

Count III. In June 2007, Mr. Ermovick retained and paid Respondent $1000 to represent him as plaintiff in a civil matter. Although Respondent alleged that he sent a demand letter, the defendant never received the letter.

In October 2007, Respondent advised Mr. Ermovick that a lawsuit would be filed. However, Respondent took no action to litigate the matter and failed to represent Mr. Ermovick.

For this count, the parties stipulated that Respondent is guilty of violating the same rules as set forth in Count I.

Case No. SC08-1375

Count I. Mr. Smith hired and paid Respondent $1000 to handle a judgment that had been entered against him. Respondent advised Mr. Smith that he had one year to reverse the judgment before any garnishment action could be taken. After returning from a trip that lasted several months, Mr. Smith discovered that his bank account had been garnished without his knowledge. Mr. Smith’s attempts to contact Respondent were unsuccessful.

Mr. Smith filed a complaint against Respondent with The Florida Bar. The Bar sent letters to Respondent, dated February 21, 2008, and March 12, 2008 (the latter sent by certified mail), requiring an explanation. Respondent failed to reply to these letters.

The parties stipulated that Respondent is guilty of violating rules 3-4.2 (violation of the Rules of Professional Conduct is a cause for discipline); 3^4.3 (the commission by a lawyer of an act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the State of Florida and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline); 4-1.1 (a lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation); 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a) (a lawyer shall (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law); 4-1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); 4-1.5(a)(1) (an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost); 4-8.1 (b) (an applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by rule 4-1.6); and 4-8.4(g) (a lawyer shall not fail to respond in writing within established time periods to any official inquiry by bar counsel or a disciplinary agency when bar counsel or the agency is conducting an investigation into the lawyer’s conduct).

Count II. In December 2006, Mr. Forbes hired Respondent to represent him in immigration matters. Mr. Forbes paid Respondent $1000. After February 2007, Mr. Forbes was unable to contact Respondent despite several attempts.

Mr. Forbes filed a complaint against Respondent with The Florida Bar. By letters dated November 5, 2007, and November 26, 2007 (the latter was sent by certified mail), the Bar required an explanation from Respondent. He failed to reply to the letters.

Based on this conduct, the parties stipulated that Respondent is guilty of violating the same rule violations as those set forth under Count I of this case.

Case No. SC08-1552. Count I. In March 2007, Mr. Mogulyan retained Respondent and paid him $900 to handle a landlord-tenant security deposit matter and to file an answer. A former tenant had filed the suit against Mr. Mogulyan seeking the return of a security deposit. Respondent failed to research the legal issues properly and he waited over a month to file his appearance. Also, Respondent did not file an answer to the lawsuit, file any affirmative defenses or counterclaim, and did not appear at a hearing on plaintiffs motion for summary judgment. As a result, Mr. Mogulyan had a final judgment entered against him for damages.

The parties stipulated that Respondent is guilty of violating rules 3 — 4.2 (violation of the Rules of Professional Conduct is a cause for discipline); 3-4.3 (the commission by a lawyer of an act that is unlawful or contrary to honesty and justice may constitute a cause for discipline); 4-1.1 (a lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation); 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a) (a lawyer shall (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law); 4-1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); 4-1.5(a)(1) (an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost); and 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client).

Count II. Around March 31, 2008, Mr. Mogulyan filed a complaint with The Florida Bar. By letter dated April 8, 2008, the Bar requested an explanation from Respondent. He failed to reply to that letter. Again, by letter dated May 5, 2008, the Bar requested a response to Mr. Mogu-lyan’s complaint. Respondent did not respond.

The parties stipulated that Respondent is guilty of violating rule 4-8.4(g) (a lawyer shall not fail to respond, in writing, within established time periods, to any official inquiry by bar counsel or a disciplinary agency, when bar counsel or the agency is conducting an investigation into the lawyer’s conduct).

Disciplinary Recommendation. Respondent used illegal substances for approximately six years, committed numerous felonies, injured multiple clients, and engaged in professional misconduct that extended over a three-year period. After considering the facts of the four cases, the referee recommended the sanction of disbarment, effective, nunc pro tunc, October 8, 2008, the date Respondent was suspended due to his felony convictions. Also, as a condition precedent to readmission to The Florida Bar, the referee recommended that Respondent be required to pay restitution in the following amounts: Mr. Er-movick, $1000; Mr. Smith, $1000; Mr. Forbes, $1000; and Mr. Mogulyan, $900. Further, the referee awarded costs to the Bar of $1,751.92.

In considering the disciplinary recommendation, the referee noted that Respondent is thirty years of age, was admitted to The Florida Bar in 2003, and does not have any prior disciplinary history. Next, the referee found that the Florida Standards for Imposing Lawyer Sanctions indicate that disbarment is appropriate. See Fla. Stds. Imposing Law. Sanes. 4.1 (failure to preserve the client’s property); 4.41(a) (lack of diligence); 5.11 (failure to maintain personal integrity); and 7.1 (duties owed as a professional).

With regard to aggravating factors, the referee found that Respondent (1) had a dishonest or selfish motive when he accepted payment for legal services never performed (Standard 9.22(b)); (2) engaged in a pattern of misconduct (Standard 9.22(c)); (3) committed multiple offenses (Standard 9.22(d)); and (4) engaged in bad-faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency when he failed to respond to Bar counsel’s letters requiring a response under rule 4-8.4(g) (Standard 9.22(e)).

As for mitigating factors, the referee found (1) absence of a prior disciplinary record (Standard 9.32(a)); (2) inexperience in the practice of law (Standard 9.32(f)); (3) physical or mental disability or impairment (Standard 9.32(h)); (4) imposition of other penalties or sanctions (Standard 9.32(k)); and (5) remorse (Standard 9.32(Z)).

Respondent argued that his misconduct was directly related to drug addiction. The referee found that Respondent presented mitigating evidence that he is addicted to gamma butyrolactone (GHB) and cocaine. However, Respondent failed to present any evidence of addiction to the other two controlled substances that he also pled guilty to possessing, selling, and delivering: the steroids methenolone and mesterolone. As a result, Respondent “did not overcome the presumption of disbarment for his felony conviction for the charges of possession, sale, and delivery of methenolone and mesterolone.” Disbarment is the presumed sanction for a single felony conviction. See Fla. Stds. Imposing Law. Sanes. 5.11(a). Although case law demonstrates that respondents can overcome the presumption, Respondent did not meet this burden.

Next, Respondent failed in his efforts to demonstrate interim rehabilitation, which is a mitigating factor under Standard 9.32(j). The referee considered the opinions of Respondent’s psychiatric and addiction expert, Dr. Seely, but found that Dr. Seely’s opinions regarding Respondent’s recovery were based upon only three hours of telephonic conversations that took place ten days prior to the final hearing. Dr. Seely did not discuss Respondent’s recovery with the professionals who were treating him in prison. Dr. Seely did not even obtain copies of Respondent’s treatment files from prison. Thus, Respondent failed to show current and reliable evidence of his rehabilitation program, addiction treatment, and progress. Further, the referee expressed concern about Respondent’s propensity to abuse substances in the future. Respondent began abusing GHB, steroids, and cocaine when he was fully aware of the illegality of those substances. In fact, most of his use of those substances occurred after he was enrolled in law school or admitted to The Florida Bar. In addition, after his arrest in 2005 for the six felony charges of which he was eventually convicted, he continued to use GHB, steroids, and cocaine. Thus, Respondent failed to show interim rehabilitation.

On Review. Respondent petitions the Court for review, arguing that (1) the referee erred by concluding that addiction could not be considered as a mitigating factor for Respondent’s steroid abuse; (2) the referee erred by not finding two additional mitigating factors; and (3) the referee’s recommended sanction of disbarment is not supported.

ANALYSIS

First, Respondent asserts that the referee erred by concluding that addiction could not be considered as a mitigating factor for Respondent’s abuse of the two steroids. The Court has stated that a “referee’s finding as to the existence [or non-existence] of a particular mitigator is considered a factual determination and is ‘presumed correct and will be upheld unless clearly erroneous or lacking in eviden-tiary support.’ ” Fla. Bar v. Tauler, 775 So.2d 944, 946 (Fla.2000) (quoting Fla. Bar v. Hecker, 475 So.2d 1240, 1242 (Fla.1985)). It is not enough for a party to point to contradictory evidence in the record; if the record contains competent, substantial evidence to support the referee’s finding, the finding should not be disturbed. Fla. Bar v. Broome, 932 So.2d 1036 (Fla.2006). Thus, the burden is on Respondent to prove that the referee erred. Respondent has failed to meet that burden.

The record supports the referee’s finding, which is that Respondent did not present clear and convincing evidence of his addiction to the two steroids. Before the referee, Respondent concentrated on proving that he was addicted to GHB and cocaine. Even when asked about his abuse of the two steroids, Respondent testified that he used them because he believed they made him stronger and enhanced his self-image. Neither Respondent nor Dr. Seely testified that Respondent was addicted to the two steroids. In fact, when Bar Counsel specifically questioned Dr. Seely about the steroids, he did not testify that Respondent was addicted. Thus, the record supports the referee’s finding that Respondent was not addicted to the two steroids. See Tauler, 775 So.2d at 946. This finding, in turn, supports the referee’s determination that the mitigating factor of addiction did not apply to Respondent’s abuse of the steroids.

Second, Respondent claims that the referee erred by not finding two mitigating factors (“interim rehabilitation” and “full and free disclosure to disciplinary board or cooperative attitude toward proceedings”). The burden is on Respondent to prove that the referee erred. See Tauler, 775 So.2d at 946.

With regard to interim rehabilitation, Respondent’s father testified that his son was now behaving as he previously did, before he engaged in drug abuse. There was no medical documentation to support the father’s views. Further, those views were based on Respondent’s behavior while he was in prison, an environment that limited his access to illegal drugs.

Respondent argues that Dr. Seely’s testimony demonstrated that he has achieved interim rehabilitation. We disagree. Dr. Seely discussed Respondent’s condition with Respondent over the phone in two conversations that totaled three hours. There was no evidence of random drug testing or other monitoring techniques. Other than a brief meeting in November 2007, Respondent has not had a face-to-face meeting with Dr. Seely. In fact, Dr. Seely did not even examine any of Respondent’s current medical records, such as those recorded during his recent incarceration. Instead, Dr. Seely reviewed records from 2006, when Respondent was in the Oasis Treatment Center. Shortly after leaving Oasis, Respondent resumed his drug abuse. Thus, the record supports the referee’s finding that the mitigating factor of interim rehabilitation does not apply in the instant case.

Respondent also claims that the referee should have found the mitigating factor of “full and free disclosure to disciplinary board or cooperative attitude toward proceedings.” In direct contrast to Respondents assertion, the referee found the aggravating factor of “bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency when he failed to respond to Bar counsels’ letters requiring a response under Rule 4-8.4(g).” In the record, Respondent even admitted that he failed to respond to the Bar’s inquiries. In addition, there is no evidence that Respondent displayed the high level of cooperation necessary to apply this mitigating factor. See Fla. Bar v. Wolf, 930 So.2d 574 (Fla.2006) (upholding finding of cooperative attitude toward proceedings where respondent waived probable cause hearing, admitted placing trust funds into operating account, and admitted failing to comply with trust account requirements). As Respondent was nonre-sponsive for portions of the proceedings and failed to demonstrate an extraordinary level of cooperation, the record supports the referee’s decision not to apply this mitigating factor.

Third, Respondent challenges the referee’s recommended sanction of disbarment. Respondent claims that the mitigating factors in his case rebut the presumption of disbarment, so the appropriate sanction is a lengthy suspension. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Disbarment is the presumed sanction when an attorney has been convicted of a felony. See Fla. Bar v. Cohen, 908 So.2d 405 (Fla.2005) (respondent disbarred for felony conviction); Fla. Bar v. Cueto, 834 So.2d 152 (Fla.2002) (same); Fla. Bar v. Barley, 831 So.2d 163 (Fla.2002) (same); Fla. Stds. Imposing Law. Sanes. 5.11(a) (absent aggravating or mitigating circumstances, disbarment is appropriate when a lawyer is convicted of a felony). Pursuant to Standard 5.11(a), a single felony conviction can result in disbarment. Respondent is guilty of six felonies. Further, as Respondent’s misconduct involves the trafficking, sale, and delivery of illegal drugs, Standard 5.11(c) applies. Pursuant to that Standard, disbarment is appropriate when a lawyer engages in the sale, distribution, or importation of a controlled substance.

Next, Standard 4.1, “Failure to Preserve the Client’s Property,” states that “[disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury.” Here, Respondent misused the funds of several clients to support his illegal drug habits, without providing proper legal services to those clients. In addition, Standard 4.41(a), “Lack of Diligence,” states that “[djisbarment is appropriate when ... a lawyer abandons the practice and causes serious or potentially serious injury to a client.” Respondent clearly abandoned his practice and seriously injured his clients. He lied to a client about the status of a case, and thereafter the client’s bank account was garnished. He failed to file appropriate pleadings and neglected cases. He missed scheduled court dates, hearings, and a deposition. Clients’ efforts to communicate with Respondent were unsuccessful. Respondent failed to return case files. He even vacated his office without informing his clients. Thus, four standards, individually, indicate that disbarment is the appropriate sanction in this case.

Respondent asserts that he did not intend to engage in the illegal acts and disciplinary misconduct. He claims that his actions were due to his addictions to GHB and cocaine, so he should not be disbarred. In contrast to Respondent’s argument, the Court has held “while a substance abuse problem may explain misconduct, it does not excuse it.” Fla. Bar v. Wolfe, 759 So.2d 689, 644 (Fla.2000). Further, in Florida Bar v. Valentine-Miller, 974 So.2d 388, 338 (Fla.2008) (respondent disbarred), the Court stated: “While we ... understand the problems associated with substance abuse and what it can do to a person’s life, we cannot condone respondent’s behavior. We have a responsibility to the citizens of this state. There is never a valid reason for taking client funds held in trust or for completely abandoning clients.” (Emphasis added.)

Next, Respondent claims that the mitigation and his addictions should rebut the presumption of disbarment. He argues that his case is similar to Florida Bar v. Rosen, 495 So.2d 180 (Fla.1986), in which the Court held that serious drug addiction can mitigate misconduct. Rosen was convicted on federal felony charges of knowingly and intentionally possessing cocaine with intent to distribute. He received a three-year disciplinary suspension rather than disbarment. Relying heavily on Ro-sen, Respondent asserts that cases which involve addiction should result in lengthy suspensions rather than disbarments. However, Respondent fails to acknowledge that Rosen voluntarily ceased practicing law when he recognized the depth of his addiction. “To his credit, [Rosen] quietly wound up his law practice towards the end of 1981, when he no longer felt able to adequately protect the best interests of his clients.” Id. at 181. Rosen was arrested and convicted in 1983, after he had voluntarily wound down his law practice in 1981. Id. Further, Rosen overcame his addiction and no longer engaged in drug use. In comparison to Rosen, Respondent did not voluntarily cease practicing law. In fact, Respondent engaged in illegal drug use for approximately six years, including several years while he had clients. His egregious misconduct resulted in over fifty rule violations and directly harmed the public.

Respondent’s misdeeds injured six clients. In the case of Mr. Rodriguez, Respondent missed court dates, hearings, and a deposition and failed to return the case files to the client. With regard to Mr. Mallor’s case, Respondent failed to file pleadings. In Mr. Ermovick’s case, Respondent received $1000 as legal fees but failed to file a lawsuit. For Mr. Smith’s case, Respondent received $1000 as legal fees but failed to oppose a judgment that caused the client’s pay to be garnished. With regard to Mr. Forbes’ immigration case, Respondent received $1000 in legal fees without performing any work. Mr. Mogulyan paid Respondent $900 in legal fees, but due to Respondent’s misconduct a summary judgment was entered against his client. Thus, Respondent’s case is clearly distinguishable from Rosen.

Respondent also i’elies on Florida Bar v. Hochman, 815 So.2d 624 (Fla.2002), in asserting that a suspension is appropriate. That case is also distinguishable. In Hochman, the respondent admitted himself into a treatment facility for drug and alcohol addiction and voluntarily informed The Florida Bar and clients that he misappropriated funds. Hochman voluntarily took responsibility and meaningful action regarding his misconduct. Such actions on the part of an attorney are favorably considered by the Court in determining the appropriate discipline. Thus, Hochman received a three-year suspension instead of disbarment. In the instant case, Respondent did not voluntarily report his drug abuse to the Bar. He did not voluntarily report his misdeeds of client neglect, incompetent representation, misuse of client funds, and conduct involving dishonesty, fraud, deceit, or misrepresentation. He did not take steps to protect his clients. Even after Respondent was arrested for the drug-related felony charges in 2005, he continued to engage in illegal drug use. Further, in contrast to Hochman, who voluntarily reported his misconduct, Respondent engaged in bad-faith obstruction of the disciplinary proceeding.

Although Respondent proved that he was addicted to GHB and cocaine, he has failed to demonstrate the significant amounts of mitigation that were present in Rosen and Hochman. In fact, a comparison of Respondent’s case with Rosen and Hochman shows that Respondent’s mitigation is insufficient to overcome the presumption of disbarment.

Based on the standards, case law, and Respondent’s egregious misconduct, the referee’s recommendation of disbarment is supported.

CONCLUSION

Accordingly, Philip David Irish is hereby disbarred effective, nunc pro tunc, October 8, 2008. As Respondent is currently suspended, it is unnecessary to provide him with thirty days to close out his practice to protect the interests of existing clients. Philip David Irish shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Respondent shall accept no new business from the date this opinion is filed until he is readmitted to the practice of law in Florida.

Respondent shall pay restitution to his former clients Mr. Ermovick, in the amount of $1000; Mr. Smith, in the amount of $1000; Mr. Forbes, in the amount of $1000; and Mr. Mogulyan, in the amount of $900. Payment of all restitution is a condition precedent to applying for readmission to The Florida Bar.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 82399-2300, for recovery of costs from Philip David Irish in the amount of $1,751.92, for which sum let execution issue.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . At the final hearing, Respondent admitted that he was directly importing the GHB. He ordered it from Slovenia and had it mailed via UPS.

      . The Court has noted that "[ijllegal drug activities are a major blight on our society ... [and] [m]embers of the Bar should be on notice that participation in such activities beyond professional obligations will be dealt with severely.” Fla. Bar v. Sheppard, 518 So.2d 250, 250 (Fla.1987) (quoting Fla. Bar v. Flecker, 475 So.2d at 1243) (disbarring attorney charged with possession of 298 grams of cannabis, who admitted that he had been selling it for profit).


text:
    Michael BRADSHEER, et al., Petitioners, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, et al., Respondents.
    No. SC09-2255.
    Supreme Court of Florida.
    Nov. 4, 2010.
    M. Stephen Turner, David K. Miller, and Kelly Overstreet Johnson of Broad and Cassel, Tallahassee, FL, for Petitioners.
    Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, FL, for Respondents.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the First District Court of Appeal in Bradsheer v. Florida Department of Highway Safety & Motor Vehicles, 20 So.3d 915 (Fla. 1st DCA 2009), based on express and direct conflict with the decision of the Fourth District Court of Appeal in Doyon v. Department of Highway Safety & Motor Vehicles, 902 So.2d 842 (Fla. 4th DCA 2005). After further consideration of the issues involved, we have determined that we should exercise our discretion to deny review. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.