STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA SMITHWICK VALZ, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3757F

)

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

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

1. Patricia Smithwick Valz has petitioned the Division of Administrative Hearings for an award of attorney's fees in accordance with Section 57.111, Florida Statutes. The petition arises from an earlier case within the Division, Department of Professional Regulation, Division of Real Estate v. Patricia Smithwick Valz and Edison Properties, Inc., DOAH Case No. 88-4667. In that action, the Florida Real Estate Commission accepted the Hearing Officer's Recommended Order that found Edison Properties, Inc. to be in violation of Count II of the Administrative Complaint and recommended dismissal of all counts against Patricia Smithwick Valz, the licensed broker.

   
   

2. After the Petition for Award of Attorney's Fees was filed in this case on June 19, 1990, the Hearing Officer entered an Order to Show Cause to determine why this case should not be dismissed, based upon the proven misconduct of another officer in the corporation. This was important because a petition for attorney's fees can only be made by a prevailing small business party, as defined in Section 57.111, Florida Statutes. The parties were given until July 27, 1990, to file memorandums to determine if the Hearing Officer has jurisdiction to award fees in this case. The Department of Professional Regulation, Division of Real Estate timely submitted its memorandum. A response was not received from the Petitioner.

   
   

   STATEMENT OF THE ISSUES

   
   

3. Whether the Petitioner, Patricia Smithwick Valz, is entitled to an award of attorney's fees as a "prevailing small business party" in the underlying administrative proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction to review whether jurisdiction over the subject matter exists in this case. Sections 120.57(1) and 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.

5. Section 57.111(4)(a), Florida Statutes, 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.

   
   

6. In the underlying case, the Petitioner was shown to be the active broker and vice-president of Edison Properties, Inc. Based upon the actions of its president, the corporation was found guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes. However, it was recommended that the charges set forth in the Administrative Complaint against the Petitioner should be dismissed. This occurred because the evidence presented at hearing demonstrated that the president actively concealed his misconduct from the Petitioner.

   
   

7. Due to the Petitioner's status as the active broker for Edison Properties, Inc. and the fact that she conducted her professional practice through this corporation, Patricia Smithwick Valz does not qualify as a "prevailing small business party" under Section 57.111(3)(d), Florida Statutes, as a matter of law.

   
   

8. The party asserting that it is a small business party has the burden of proof to demonstrate that this status exists. Department of Professional Regulation, Board of Landscape Architecture v. Webster, 11 FALR 3016 (1988). In this case, the threshold requirement of being a small business party cannot be met. All of the proof regarding the relationship between the Petitioner and Edison Properties, Inc. presented in the earlier case is to the contrary. Another evidentiary hearing on this matter would be superfluous.

   
   

9. On the other hand, Edison Properties, Inc., does meet the definition of a small business party under Section 57.111(3)(d), Florida Statutes. However, this entity was not a prevailing party under Section 57.111(3)(c), Florida Statutes. Pluto v. Department of Profession Regulation, Division of Real Estate, 11 FALR 3019 (1989).

   
   

10. Whether the agency had substantial justification for filing charges against Patricia Smithwick Valz was not addressed in this order because the rulings have been made specifically on the issue of jurisdiction. The Order to Show Cause related only to this issue and the Petitioner was not ordered to address other matters by the July 27, 1990 deadline.

Based upon the foregoing, it is ORDERED:

That the Petition for the Award Attorney's Fees is denied as the Hearing Officer is without authority to award attorney's fees to private litigants.

Jurisdiction over the subject matter does not exist because the Petitioner was unable to qualify as a "prevailing small business party" under Section 57.111(3)(d), Florida Statutes, as a matter of law.

DONE and ORDERED this 7th of August, 1990, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990.

COPIES FURNISHED:

Howard Hadley, Esquire 2352 Carolton Road

Maitland, Florida 32751

Steven W. Johnson, Esquire DPR - Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Darlene F. Keller Division Director Division of Real Estate

400 W. Robinson St.

P.O. Box 1900

Orlando, Florida 32801

Lawrence A. Gonzalez, Secretary Department of Professional Regulation 1940 N. Monroe St.

Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 N. Monroe St.

Tallahassee, Florida 32399-0792

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 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: 90-003757F

Orders for Case No: 90-003757F