STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS C. PLUTO and )

KATHLEEN M. PLUTO, )

)

Petitioners, )

)

vs. ) CASE NO. 89-2132F

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

)

Respondent. )

)

FINAL ORDER

This matter came before the undersigned on Respondent, Department of Professional Regulation's, (Department), Motion to Strike Petitioner's Motion for Award of Attorney's Fees. The issue for consideration is whether Petitioners are "Prevailing Parties" under the provisions of Section 57.111(3)(c), Florida Statutes.

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Infantino & Berman Post Office Drawer 30

Winter Park, Florida 32790

For Respondent: John R. Alexander, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

BACKGROUND INFORMATION

On April 25, 1989, Petitioners herein, Thomas C. and Kathleen M. Pluto, filed a Motion For Award Of Attorney's Fees in this case with the Division of Administrative Hearings. On April 26, 1989, counsel for the Department filed a Motion to Strike the Petitioners' motion. No response to the Respondent's Motion to Strike has been received even though service of the motion was effected on counsel for Petitioners by mail on April 26, 1989.

No evidentiary hearing on Petitioner's Motion was held nor was a hearing requested on Respondent's Motion to Strike.

FINDINGS OF FACT

1. On December 22, 1987, the undersigned held a formal hearing in the underlying case, (DOAH Case No. 87-3084), and on February 4, 1988, issued a Recommended Order to the Florida Real Estate Commission in which it was concluded that the Petitioners had violated various provisions of the Florida Statutes and that disciplinary action was appropriate. Specific disciplinary action was recommended as to each Petitioner.

   
   

2. In its Final Order, predicated upon the above mentioned Recommended Order, the Commission adopted the undersigned's Findings of Fact and Conclusions of Law but found the recommendation for punishment as to both Petitioners was inadequate. The Commission increased each period of suspension, rejected the recommendation for stay and automatic remission as to the suspensions, and imposed an administrative fine on each Petitioner.

   
   

3. Thereafter, Petitioners appealed the Final Order to the Second District Court of Appeal which, in an opinion filed February 17, 1989 affirmed the Commission's findings of guilt but reversed the penalties imposed by the Commission and remanded with instructions to approve the Hearing Officer's recommended penalties. It is on the basis of this appellate action that Petitioners, claiming to be prevailing small business parties, initiated the instant action.

   
   

4. Petitioners are requesting attorney's fees in the amount of $5,261.28 for the appellate action which resulted in the District Court of Appeals reducing the penalty imposed by the Commission to that recommended by the Hearing Officer. This fee and cost figure is the cumulative of charges incurred and represented on 11 monthly billing statements starting 06-01-88 and extending through 04-01-89. Only the last eight, starting with the 09-01-88 billing, state the hours spent providing service.

   
   

5. The Florida Legislature has defined a "prevailing small business party" at Section 57.111(3)(c), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

7. Under the provisions of Section 57.111(4)(a), Florida Statutes, certain individuals against whom a state agency has initiated action may claim attorney's fees and costs. That statute states:

   
   

   Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

8. The applicant bears the burden of proving both that it is a small business party and that it prevailed in the original action, Gentele v. Department of Professional Regulation, Board of Optometry, 9 FALR 310, 327 (DOAH June 20, 1986).

   
   

9. The Department has moved to strike Petitioners' Motion For Award of Attorney's Fees on the basis that they are not "prevailing small business parties" since the determination that some punishment was appropriate due to their misconduct was upheld by the appellate court.

   
   

10. A small business party is a "prevailing small business party" when, according to Section 57.111(3)(c):

    
    

    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

    
    

11. Here, there is no dispute as to the categorization of Petitioners as "small business parties." The documentation submitted by Petitioners, however, clearly indicates they are not "prevailing" small business parties. The original action herein was based on an allegation that Petitioners had violated certain provisions of the statute. At the evidentiary hearing on the merits of that allegation, evidence was presented which demonstrated their culpability and a recommendation was made for disciplinary action. When the Commission rejected the Hearing Officer's recommendation as to the quantum of punishment, that action was appealed. The court affirmed the Commission's findings of guilt but reversed the penalties imposed.

    
    

12. In light of the fact that the ultimate issue of the Petitioners' guilt of the allegations was resolved against them and their sole success was in having restored the original penalties recommended by the Hearing officer, it cannot be said they were prevailing small business parties. Attorney's fees for appellate action are not provided for either in the enabling statute or in the Division's rule. Consequently, it is, therefore:

ORDERED THAT:

1. The Department's Notion to Strike Petitioners' Motion For Award Of Attorney's Fees is hereby granted.

   
   

2. The Division of Administrative Hearings file in this matter is hereby closed.

DONE and ORDERED in Tallahassee, Florida this 15th day of May, 1989.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1989.

COPIES FURNISHED:

John R. Alexander, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth M. Meer, Esquire Infantino & Berman

Post Office Drawer 30 Winter Park, Florida 32790

Darlene F. Keller Division Director Division of Real Estate

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

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth A. Easley, Esquire DPR

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 89-002132F

Orders for Case No: 89-002132F