STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. BRIGGS AND GREAT ) AMERICAN REALTY OF TAMPA BAY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-0583F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

FINAL ORDER

The Petitioner, Robert L. Briggs and Great American Realty of Tampa Bay, Inc., petitioned for the award of attorney's fees pursuant to Section 57.111, Florida Statutes in case number 85-1825 of the Division of Administrative Hearings. The Petitioners were the Respondents in case number 85-1825, and the Florida Real Estate Commission was Petitioner.

APPEARANCES

For Petitioner: Gerald Nelson, Esquire

4830 West Kennedy Boulevard Tampa, Florida 33609

For Respondent: Arthur R. Shell, Jr., Esquire

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

STATEMENT OF CASE

The Florida Real Estate Commission filed a motion to dismiss the petition for award of attorney's fees. An Order and Notice was entered on April 15, 1986 giving the parties 14 days to brief their respective positions. The parties did not brief their positions; therefore, the case was set for hearing on May 19, 1986. On the same date an order was entered reserving ruling on the motion to dismiss and giving Briggs until May 1, 1986 to file a response to the motion to dismiss. This order reflected that a failure to respond would be considered an admission of the correctness of the position taken by the Florida Real Estate Commission. The Order and Notice also limited the evidence in the case to the pleadings and affidavits filed up to that date. Based upon that limitation and the failure of the parties to provide any further legal argument, the hearing scheduled for May 19, 1986 is not required and the case may be decided on the facts now in the record on the Motion to Dismiss.

ISSUE

Whether the Petitioner qualifies for award of attorney's fees pursuant to Section 57.111, Florida Statutes.

FINDINGS OF FACT

1. The Department of Professional Regulation, Florida Real Estate Commission, charged the Respondents (Petitioners in this case) with four counts of violating Section 475.25(1)(b), Florida Statutes in an administrative complaint. The Respondents asked for a formal hearing in a timely fashion.

   
   

2. Case number 85-1825 went to formal hearing and a Recommended Order was entered on November 15, 1985.

   
   

3. The Recommended Order found that the Respondents were guilty of one count of violating Section 475.25(1)(b), Florida Statutes, by forging a contract. The Recommended Order recommended suspension of the Respondents' license for six months, but that the suspension be suspended upon payment of a civil penalty of $1,000.

   
   

4. The Board rejected the Respondents' (Petitioners in this case) exceptions and entered a Final Order on January 30, 1986 rejecting the Respondents' exceptions and adopting the Hearing Officer's findings, conclusions and penalty. No appeal was taken of the Final Order.

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioners based their request for attorney's fees on Section 57.111(3)(c)(1), Florida Statutes, which provides:

   
   

   "1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the

   time for seeking judicial review of the judgment or order has expired;"

   
   

6. Although the Petitioners (Respondents in case number 85-1825) were not found guilty of all counts by the Recommended Order as adopted in the Final Order, the Recommended Order did find the Respondent guilty of violating Section 475.25(1)(b), Florida Statutes, by forging a client's signature on a contract. The Recommended Order recommended the six months suspension be suspended upon payment of a civil penalty of $1,000 in light of the mitigating circumstances. The Board rejected the Respondents' below exceptions, adopted the Hearing Officer's findings, conclusions and recommended penalty, and no appeal was taken.

   
   

7. The conclusions of law in case number 85-1825 reflect that Respondents were charged with two acts and each act was alleged to violate two laws. The acts were (1) filing with Multiple Listing Service ("MLS") a status report which extended the original listing contract and (2) forging the sellers' names on a second exclusive listing contract which Respondents filed with MLS. Both acts are alleged to violate Section 475.25(1)(b), Florida Statutes, which prescribes fraud, misrepresentation, etc., and Section 475.25(1)(c), Florida Statutes which prescribes false advertising.

   
   

8. Based upon the facts, the Hearing Officer found that Respondents did not violate Section 475.25(1)(c) by false advertising because the Respondents'

   clients had intended to extend the contract and offer the house for sale. It was concluded that this was not "false advertising" prohibited by Section 475.25(1)(c), Florida Statutes.

   
   

9. The fact that Respondents forged their clients' names to an exclusive listing contract was admitted. The legal issue was whether the Respondents intended to defraud anyone by signing their clients' names. The facts reveal they did not desire to defraud the clients; however, the Respondents sought to induce MLS to list the property contrary to the rules of MLS. This is fraud, and the Respondents were found guilty of violating Section 475.25(1)(b), Florida Statutes.

   
   

10. The Conclusions of Law in case #85-1825 state in pertinent part concerning the Respondents' acts:

    
    

    "Mitigation: Any forgery of a document by a broker or salesman is a very serious matter. Forgery is by its very nature fraud and misrepresentation. The introduction of false documents in a real estate transaction expands the opportunity for misunderstandings and costly litigation. However, the facts show that the Respondents had only one narrow purpose, i.e., to keep the listing in MLS. Their actions were consistent with their understanding with the Averys that the Respondents continue to broker the property.

    The Respondents never sought to enforce this forged contract although it may have been to the benefit of the Averys and the Respondents to do so. The respondents' acts must be looked at in this context. It seems clear that Respondents signed the Averys' names

    as an act of expediency, not in a wilful intent to harm anyone, including MLS."

    
    

11. The Hearing Officer recommended suspending the Respondents for six months but suspended the suspension upon payment of a civil penalty of $1,000. This was adopted by the Florida Real Estate Commission.

    
    

12. Section 57.111(1)(c), Florida Statutes, provides as follows:

    
    

    1. A small business party is a "prevailing small business party" when

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

       2. A settlement has been obtained by the small business party which is favorable to the small business party on the majority of the issues which such party raised during the course of the proceeding; or

       3. The state agency has sought a voluntary dismissal of its complaint.

13. The Florida Real Estate Commission did not voluntarily dismiss this case. A settlement was not obtained in the case which was contested from beginning to end according to counsel's affidavit. If Petitioners, Respondents below, are to prevail in this case it must be solely on the theory that a final order was entered in favor of the small business party. (No appeal was taken and the time for judicial review has run.) Therefore, the only issue is whether the final order was "in favor of" Respondents.

    
    

14. Statutory interpretation requires giving words their plain meaning. Webster's New Collegiate Dictionary (1975 Ed.) defines "favor" as "to be favorable." The same source defines "favorable" as "disposed to favor, expressing approval, giving a result that is in one's favor."

    
    

15. The Recommended Order and Final Order found that Respondents acted as they were alleged to have acted (and admitted they had acted) and concluded that one of two acts admitted constitutes a fraudulent act in violation of Section 475.25(1)(b), Florida Statutes. The Recommended Order recommended a six months suspension or $1,000 civil penalty. The Final Order adopting the recommended penalty is not a final order "expressing approval" and "giving a result that is in one's favor."

    
    

16. Apparently, Petitioners conclude that if one is not found guilty of 3 of 4 alleged statutory violations, the order is "favorable." While this may be a moral victory for a respondent and substantial mitigation may result in a reduced penalty being assessed (forgery of a contract with the intent to defraud a client is certainly a major offense), neither the Recommended Order or Final Order reflects any "approval" of Respondents' conduct as reflected by the penalty assessed.

    
    

17. Having fully considered the facts and the law, the Motion to Dismiss is GRANTED in this Final Order, the case file of the Division of Administrative Hearings is CLOSED, and the parties notified thereof by copy of the Final Order.

DONE AND ORDERED this 9th day of May 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May 1986.

COPIES FURNISHED:

Mr. Harold Huff Executive Director

Department of Professional Regulation Division of Real Estate

P. O. Box 1900 Orlando, Florida 32802

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate

P. O. Box 1900 Orlando, Florida 32802

Gerald Nelson, Esquire

4830 West Kennedy Boulevard Tampa, Florida 33609

Docket for Case No: 86-000583F

Orders for Case No: 86-000583F