STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RODNEY G. GREEN and CHARTER ) REALTY, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 85-3501F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Respondent. )

)

FINAL ORDER

This action arose after petitioners, Rodney G. Green and Charter Realty, Inc., received a Final Order dismissing an administrative complaint filed against them by respondent, Department of Professional Regulations Division of Real Estate (Division). The petition herein is filed under Section 57.111, Florida Statutes (Supp. 1984), and Rule 22I-6.35, Florida Admin- istrative Code, which authorize a "small business party" to seek an award of attorney's fees and costs against the state agency which has initiated an administrative action. Neither party has requested an evidentiary hearing. The pleadings and documents that comprise the record herein are the petition, amended peti- tion, affidavit, and Recommended Order and Final Order entered in Case NO. 85-0735, and respondent's affidavit in opposition there-to. At issue is whether petitioners are entitled to an award of attorney's fees and costs for defending against an administrative complaint filed against them by respondent in Case NO. 85-0735.

Based upon the pleadings filed herein, the following well-pleaded facts are determined:

FINDINGS OF FACT

1. Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida.

   
   

2. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred.

   
   

3. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985.

   
   

4. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness.

   
   

5. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons:

   
   

   The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes.

   Respondent's affidavit responds in the following manner:

   
   

   The Petitioner acted within the scope of its judicatory responsibilities as prescribed

   in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes.

   
   

6. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 57.111, Florida Statutes (Supp. 1984).

   
   

2. Neither party has requested an evidentiary hearing. Therefore the undersigned will "decide for or against the award and the amount, if any, on the basis of

   the pleadings and supporting documents." Rule 22I-6.35(6), Florida Administrative Code.

   
   

3. Section 57.111, Florida Statutes (Supp. 1984), authorizes the award of attorney's fees and costs to a prevailing small business party in an administrative proceeding initiated by a state agency "unless the actions of the agency were substan-tially justified or special circumstances exist which would make the award unjust."

   
   

   According to Subsection 57.111(3)(e), "a proceeding is substantially justified if it had a reasonable basis in law or fact at the time it was initiated by a state agency."

   
   

4. Essentially, agency counsel claims the action was justified while petitioners' counsel maintains it was not. Neither counsel has provided any rationale or reasoning to sup-port their respective claims.

To determine whether an action is "substantially justi-fied," the statute establishes the test of whether

the complaint "had a reasonable basis in law or fact at the time it was initi-ated by (the)... agency." Although the administrative complaint was not made a part of the record by either party, the

Recommended Order indicates that the complaint was founded upon factual allegations of impropriety on the party of petitioners while handling a $20,000.00 cash deposit in a real estate transaction. If these factual allegations were true; the agency clearly had a reasonable basis in law or fact to issue an administrative complaint in February 1985. Indeed at that time, it was relying upon the representations of the principal purchaser who dealt with petitioners, and certain documentation relating to the transaction. Moreover petitioners have the burden of establishing entitlement to the fees and costs. Other than reciting that they were the prevailing party, they have failed to point to any aspect of the complaint or proceeding which would demonstrate that the agency action was an "unreasonable governmental action" or had no basis in law or fact. Therefore the amended petition should be denied.

In consideration of the foregoing it is

ORDERED that the amended petition for attorney's fees and costs be DENIED.

DONE and ORDERED this 5th day of December, 1985, in Tallahassee Florida.

Hearings

Hearings

DOANLD R. ALEXANDER

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 5th day of December, 1987.

ENDNOTES

1/ That proceeding was styled Department of Professional Regulation, Division of Real Estate v. Rodney G. Green & Charter Realty, Inc., DOAH Case NO. 85-0735, Final Order entered August 20, 1955.

2/ Subsection 57.111(4)(b)2., Florida Statutes (Supp. 1984), requires that such a petition be filed "within 60 days after the date that the small business party becomes a prevailing small business party."

3/ These findings of fact are taken from the Recommended Order since the administrative complaint was not incorporated into the pleadings by either party.

COPIES FURNISHED:

Margaret A. Wharton, Esquire Post Office Box 1172

Oviedo, Florida 32765

Arthur A. Shell, Jr., Esquire Post Office Box 1900

Orlando, Florida 32802

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 PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCE BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 85-003501F

Orders for Case No: 85-003501F