STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY G. JEWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0677F

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

)

Respondent. )

)

FINAL ORDER

This action arose after Petitioner, Terry G. Jewell, received a Final Order dismissing the Administrative Complaint filed against him by the Respondent, Department of Professional Regulation, Division of Real Estate (Division). That proceeding was styled Department of Professional Regulation, Division of Real Estate v. Terry G. Jewell, DOAH Case No. 87-2192 (Final Order December 1, 1987). The petition herein is filed pursuant to Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, which authorize a "small business party" to seek an award of attorney's fees and costs against the state agency which initiates an administrative action.

Petitioner filed an affidavit to initiate this action on February 5, 1988.

The Final Order in DOAH Case No. 87-2192 was entered on December 1, 1987, but was mailed to Petitioner on December 10, 1987. Hence the affidavit was filed within 60 days of the date when Petitioner was advised that he was the prevailing party by virtue of the Division's dismissal of its Administrative Complaint. On February 11, 1988, Jewell filed a Petition for Small Business Party's Attorney's Fees and Costs as required by Rule 22I-6.035(2). Jewell's Petition specifically waived an evidentiary hearing.

Rule 22I-6.035 specifically requires the state agency against which a petition for costs and fees is filed to file a response or counter affidavit within 20 days of the filing of the petition. Here, the Division has filed no response and the 20 days have elapsed. Accordingly, the Division has effectively waived its opportunity to oppose the Petition, to dispute the allegations in the Petition, and to request an evidentiary hearing. Therefore, pursuant to Rule 22I-6.035(7), the undersigned Hearing Officer "will decide for or against the award and the amount, if any, on the basis of the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings."

The pleadings and supporting documents that comprise the record herein are the Petition, the affidavits of William C. Andrews, the Final Order and Recommended Order in DOAH Case No. 87-2192, and the Administrative Complaint which formed the basis for DOAH Case No. 87-2192.

Based on the record herein, the following facts are determined:

FINDINGS OF FACT

1. Terry G. Jewell is the sole proprietor of an unincorporated business, wherein Jewell engages in business as a real estate broker-salesman. His net worth is less than $2,000,000.

   
   

2. In DOAH Case No. 87-2192, the Division filed an Administrative Complaint dated April 20, 1987, wherein the Division essentially alleged that Jewell was co-owner and agent for Sun Country Homes of North Florida, Inc., a corporation engaged in the business of constructing homes; that Jewell, as vice- president and agent for Sun Country Homes, entered into a contract with the Koblinskis to build their house; that Sun Country Homes received approximately

   $74,900.00 to build the home; that Sun Country Homes did not pay certain materialmen and contractors; and that Jewell did not pay the outstanding liens. The Division sought revocation and other penalties against Jewell's license as a real estate broker-salesman, alleging that Jewell was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction.

   
   

3. After hearing, a Recommended Order was entered by the undersigned on September 25, 1987, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that Jewell's contacts with the Koblinskis were solely as an officer, co-owner and agent for Sun Country Homes of North Florida, Inc.; that all sums paid by the Koblinskis were to Sun Country Homes and were deposited to its corporate account; that the president of Sun Country Homes mismanaged the corporate funds and did not pay some of the subcontractors on Koblinskis' home, that Jewell quit the corporation then he found out about this; that Jewell did all he could to assist the Koblinskis once he had resigned from the corporation; that the president of the corporation disappeared with the Koblinskis' money; and that Jewell did not benefit from the funds paid by the Koblinskis to Sun Country Homes of North Florida, Inc.

   
   

4. The recommendation was based on conclusions of law that the contract was between the Koblinskis and Sun Country Homes of North Florida, Inc.; that Jewell had no intent to deceive the Koblinskis; that it is well settled law that disciplinary action cannot be taken against a real estate broker's license for conduct not connected with the licensee's business as a broker; and that Jewell did not violate Section 475.25(1)(b), Florida Statutes, as alleged.

   
   

5. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation in the Recommended Order and dismissed the Administrative Complaint.

   
   

6. The affidavit which initiated this action was filed on February 5, 1988, and was later supplemented by the Petition for Small Business Party's Attorney's Fees and Costs. The affidavit, which was an application for an award of fees and costs, was timely, having been filed within 60 days after the date on which Jewell became a prevailing small business party. In this case, the 60 days is calculated from the date on the Certificate of Service showing mailing of the Final Order to the parties. See Section 57.111(4)(b)2, Florida Statutes.

   
   

7. According to the affidavit of William C. Andrews, and the statements of account attached thereto, Jewell incurred legal fees of $3,252.50 and costs of

   $957.21. These fees and costs are found to be reasonable since the Division has not filed a counter affidavit or response questioning their reasonableness.

   
   

8. According to the Petition, the disciplinary action in DOAH Case No. 87- 2192 was substantially unjustified at the time it was initiated:

   
   

   because the Administrative Complaint was an attempted disciplinary action taken against Petitioner's real estate broker-salesman's license for conduct not connected with the licensee's business as a broker-salesman, and there was a complete absence of evidence to show any wrong doing on the part of the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of this proceeding. Section 57.111, Florida Statutes (1987).

   
   

10. Section 57.111(4)(a) essentially 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 substantially justified or special circumstances exist which would make the award unjust."

    
    

11. According to the definitions in Section 57.111(3), the matter at issue here was initiated by the state agency. Section 57.111(3)(d)1.a. defines a small business party to include:

    
    

    A sole proprietor of an unincorporated business, including a professional practice, whose `principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employee's or a net worth of not more than $2 million, including both personal and business investments; ...

    
    

    The uncontroverted facts support a conclusion that Jewell, as sole proprietor of his professional practice business as a real estate broker-salesman, is a small business party as defined.

    
    

12. Section 57.111(3)(c)1 specifies that a small business party is a "prevailing small business party" when:

    
    

    A final judgement or order has been

    entered in favor of the small business party and such judgement or order has not been reversed on appeal or the time for seeking judicial review of the judgement or order has expired; ...

    Again, in this case it is uncontroverted that a Final Order was entered dismissing the Administrative Complaint. Hence, Jewell is a prevailing small business party.

13. Section 57.111(3)(e) specifies that: A proceeding is "substantially justi-

    fied" if it had a reasonable basis in law and

    in fact at the time it was initiated by a state agency.

    
    

    In reviewing the Administrative Complaint, it must be concluded that the Respondent had no basis in law and in fact to initiate the action. Even the facts alleged in the Administrative Complaint indicate that Jewell was acting as an officer, agent and co-owner of Sun Country Homes of North Florida, Inc., and not in an individual capacity pursuant to his real estate broker-salesman's license. As a matter of law, which was adopted by the Division in its Final Order, a disciplinary action cannot be taken against a real estate broker's license for conduct not connected with the licensee's business as a broker.

    Further, as a matter of fact, there was no showing of any wrongdoing on the part of Jewell. The Administrative Complaint does not set forth facts to support the allegation that Jewell was guilty of fraud, misrepresentation, dishonest dealing, culpable negligence or breach of trust.

    
    

14. Apparently the president of Sun Country Homes of North Florida, Inc., mismanaged the funds paid to the corporation by the Koblinskis and then disappeared without accounting for those funds. Jewell had no responsibility for these misdeeds. In its zeal to bring to justice the individual responsible for Sun Country Homes' misdeeds and to satisfy the complaints of the Koblinskis and the subcontractors, the Division "cast its net far and wide, ensnaring the innocent, as well as the guilty." See Fieber v. Dept. of Banking and Finance, DOAH Case No. 86-4963F (Final Order August 31, 1987). It is exactly this type of over-reaching and unreasonable governmental action that the "Florida Equal Access to Justice Act" was intended to remedy. Section 57.111(2)

    
    

15. The attorney's fees and costs incurred by Jewell were reasonable and necessary to defend against this Administrative Complaint.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Department of Professional Regulation, Division of Real

Estate, pay attorney's fees of $3,252.50 and costs of $957.21, for a total of

$4,209.71, to Petitioner, Terry G. Jewell.

DONE and ORDERED this 8th day of March, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1988.

COPIES FURNISHED:

William C. Andrews, Esquire Post Office Drawer C Gainesville, FL 32602

Arthur Shell, Jr., Esquire Harold Huff, Executive Director Division of Real Estate Division of Real Estate

400 West Robinson Street 400 West Robinson Street Post Office Box 1900 Post Office Box 1900

Orlando, FL 32802 Orlando, FL 32802

William O'Neil, Esquire Tom Gallagher, Secretary General Counsel Department of Professional Department of Professional Regulation

Regulation 130 North Monroe Street

130 North Monroe Street Tallahassee, FL 32399-0750 Tallahassee, FL 32399-0750

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 COMMENCED 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 BYE 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.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, DEPARTMENT NOT FINAL UNTIL TIME EXPIRES TO OF PROFESSIONAL REGULATION FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 88-1023

vs. DOAH CASE NO. 88-0677F

TERRY G. JEWELL,

Appellee.

/ Opinion filed February 8, 1989.

An Appeal from an order of the Division of Administrative Hearings.

Arthur R. Shell, Jr., Senior Attorney, Department of Professional Regulations, Division of Real Estate, Orlando, for Appellant.

William C. Andrews, of Scruggs & Carmichael, P.A., Gainesville, for Appellee.

PER CURIAM.

AFFIRMED.

SHIVERS, ZEHMER, and BARFIELD, JJ., CONCUR.

Docket for Case No: 88-000677F

Orders for Case No: 88-000677F