STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVE STALEY AUCTIONEERING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0292F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

AUCTIONEERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, final hearing in the above-styled case was held in Melbourne, Florida, on March 20, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph E. Miniclier

Stromire, Bistline & Miniclier Building I, Suite 10

1970 Michigan Avenue

Cocoa, Florida 32922

For Respondent: Lois B. Lepp, Staff Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60 Northwood Centre

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to its attorneys' fees, pursuant to Section 57.111, Florida Statutes, as a result of the dismissal by Respondent of an earlier disciplinary proceeding against Petitioner.

PRELIMINARY STATEMENT

The present proceeding was commenced by Petitioner filing a Motion for Attorney's Fees on January 14, 1991. The motion was filed in connection with DOAH Case No. 90-6107, but was assigned the above-stated case number.

By Administrative Complaint filed August 30, 1990, Respondent alleged that Petitioner had violated certain disciplinary provisions governing licensed auctioneers. Respondent dismissed the proceeding by serving a Notice of Voluntary Dismissal on December 31, 1990.

In it motion for fees, Petitioner alleges that he was a prevailing party under Section 57.111(3)(c), Florida Statutes; a small business party, under Section 57.111(3)(d)1.a., Florida Statutes; Respondent initiated the disciplinary proceeding; and Respondent's actions were substantially unjustified.

On March 18, 1991, the parties filed a Joint Prehearing Stipulation, which reduced the issues to whether the disciplinary proceeding had been substantially justified and, if not, the amount of fees to which Petitioner was entitled. At the hearing, Petitioner introduced affidavits as to the amount and value of fees. Respondent did not object to the amount and value, but did object to the claim for fees in connection with the prosecution of the above-styled case.

One witness testified at the hearing. Petitioner offered three exhibits, and Respondent offered two exhibits. All exhibits were admitted into evidence.No transcript was filed. Each party filed a proposed final order.

Treatment of the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. By Administrative Complaint filed August 30, 1990, and assigned DOAH Case No. 90-6107, Respondent alleged that Petitioner, as a licensed auction business, accepted the consignment of property from Ms. Erma Grant in April, 1988. The Administrative Complaint alleges that Petitioner failed to provide Ms. Grant a written agreement evidencing the consignment, as required by Section

   468.388 for consignments involving property whose estimated value is over $500. The Administrative Complaint alleges that Petitioner failed to pay Ms. Grant the auction proceeds within 30 days of the auction.

   
   

2. Based on the factual allegations set forth above, the Administrative Complaint charges that Petitioner violated Section 468.389(1)(j), which prohibits a violation of any statute, through the violation of Section 468.388 by failing to obtain a written consignment agreement; Section 468.389(1)(c), which prohibits the failure to account for or to pay, within a reasonable time not to exceed 30 days, money belonging to another which has come into the control of an auctioneer or auction business through an auction; and Section 468.389(1)(e), which prohibits conduct in connection with a sales transaction which demonstrates bad faith or dishonesty.

   
   

3. Based on the alleged violations set forth above,the Administrative Complaint requests the Board of Auctioneers to enter a final order revoking or suspending Petitioner's license, imposing an administrative fine, issuing a reprimand, placing Petitioner on probation, and awarding other appropriate relief.

   
   

4. Respondent predicated its allegations largely on a complaint that it received from Ms. Grant. By letter dated April 23, 1990, Ms. Grant recounted that she had advertised a moving sale in March or April, 1988. She reported that Petitioner contacted her and asked that she let him take everything to sell at an auction. Following the sale, she stated that she called Petitioner and consigned to him several items, including a davenport, china cabinet, a still- life picture, and two padded chairs.

   
   

5. Ms. Grant charged in her letter that she did not hear from Petitioner following the consignment. Residing in Vermont, she returned to Florida in November, 1988, and immediately contacted Petitioner. She charged that

   Petitioner explained that he did not have the money, but thought that he had sent her a check. He reportedly promised to examine his records.

   
   

6. Ms. Grant letter states that Ms. Grant returned to see Petitioner on March 6, 1989. The letter reads: "[Petitioner] had already told a cousin of mine that he had sent a check to me for $227. Some of my boys must have cashed it on me." It is unclear to whose "boys" the letter refers. Ms. Grant continued to pressure Petitioner for payment, according to the April 23 letter, but Petitioner refused to pay or show herrecords that he had already sent a check.

   
   

7. Ms. Grant alleged that on April 11, 1989, Petitioner offered her $100. About a week later, Petitioner told her that he would be sending her a check for

   $50 and allegedly admitted that he had no copy of any prior check. Ms. Grant, who was 75 years old at the time and had recently been in poor health, ended her letter with a request for assistance and provided Respondent with her address in Vermont, to which she was returning in the next few days.

   
   

8. Respondent opened a formal investigation shortly after receiving Ms. Grant's complaint. On June 4, 1990, Respondent's investigator contacted Ms. Grant, who stated that she had still not received anything from Petitioner. The following day, the investigator contacted Petitioner, who said that he could not remember accepting any property from Ms. Grant on consignment. They set up an appointment for June 6.

   
   

9. On June 6, Ms. Grant telephoned the investigator and informed him that a friend of hers in Cocoa, Mr. Alcide Quesnel, had received a call from Petitioner, who offered him the sum of $200 to send to Ms. Grant. The investigator contacted Mr. Quesnel on the same day, and he confirmed that he had received from Petitioner the sum of $200 the prior evening to send to Ms. Grant. Mr. Quesnel explained that he had introduced Ms. Grant to Petitioner.

   
   

10. Mr. Quesnel later tried to change his story by telling the investigator that Petitioner did not give him themoney. Instead, someone unknown to him put the money in his pocket and he assumed that it was for Ms. Grant because he had known that she and Petitioner had been having some problems.

    
    

11. By letter dated June 9, 1990, Ms. Grant provided Respondent's investigator with a copy of the $200 check that she had received from Mr. Quesnel. She added that Mr. Quesnel had telephoned her on the evening of June 5 and informed her that Petitioner had given him the $200, she was to call the investigator and tell him that she had received the money, and Petitioner did not want a receipt.

    
    

12. In addition to the interviews of Ms. Grant, Petitioner, and Mr. Quesnel, the investigator received an affidavit from Ms. Grant's sister, who swore that she witnessed Petitioner pick up the furniture from Ms. Grant's house in April, 1988.

    
    

13. By internal memorandum dated December 31, 1990, a law clerk of Respondent advised the attorney handling DOAH Case No. 90-6107 that she did not believe that Respondent could prove by clear and convincing evidence that Petitioner was guilty of any violations of Chapter 468. Respondent served the Notice of Voluntary Dismissal the same day.

14. Pursuant to the parties' stipulation, Respondent is a state agency and initiated the underlying case giving rise to the present claim for attorneys' fees; Petitioner is a prevailing small business party; and the attorneys's fees and costs are reasonable as to those expended in connection with theunderlying case. The fees in connection with DOAH Case No. 90-6107 are

    $1920. There is no indication that Petitioner incurred any costs in connection with DOAH Case No. 90-6107.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 57.111(4)(d), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

16. As a result of the stipulation, the sole issue to resolve in this case is whether the actions of Respondent were "substantially justified." Section 57.111(4)(a). A proceeding is "substantially justified" if "it had a reasonable basis in law and fact at the time it was initiated by a state agency." Section 57.111(3)(e).

    
    

17. Respondent had a reasonable basis in law and fact to commence DOAH Case No. 90-6107. Ms. Grant's charges were internally consistent and her credibility, even in the absence of documentation of the consignment, might have supplied clear and convincing evidence of the alleged violations. There is considerable evidence that Petitioner attempted, immediately after being contact by the investigator, to pay Ms. Grant $200. Although Petitioner's sudden attempt to satisfy Ms. Grant is not especially suspicious when viewed in isolation, his credibility was ill-served by the implausible tale of Mr. Quesnel, who mysteriously found $200 in his pocket and instantly deduced that it belonged to a 75-year old woman living in Vermont.

ORDER

Based on the foregoing, it is hereby ordered that the Motion for Attorney's Fees is dismissed.

DONE and ORDERED this 4th day of April, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

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 4th day of April, 1991.

APPENDIX TO FINAL ORDER, CASE NO. 91-0292F

Treatment Accorded Petitioner's Proposed Findings 1-6: adopted.

7: rejected as unsupported by the greater weight of the evidence. 8: rejected as unnecessary.

9: rejected as speculation and unsupported by the greater weight of the evidence.

Treatment Accorded Respondent's Proposed Findings 1-3 and 5: rejected as subordinate.

4: rejected as not finding of fact. 6: adopted in substance.

7-9: rejected as irrelevant. DOAH Case No. 90-6106, which was filed against Mr. Staley's individual license, duplicated DOAH Case No. 90-6107, which was filed against Mr. Staley's business license. The request for fees was based on the dismissal in December, 1990, of the latter case. The dismissal of 90- 6106, on grounds of duplication, is irrelevant to the present case and the request for fees.

10: adopted in substance.

11-14: rejected as subordinate.

COPIES FURNISHED:

George Stuart, Secretary

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

LouElla Cook, Executive Director Board of Auctioneers

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Joseph E. Miniclier

Stromire, Bistline & Miniclier Building I, Suite 10

1970 Michigan Avenue

Cocoa, FL 32922

Lois B. Lepp, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Northwood Centre

Tallahassee, FL 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: 91-000292F

Orders for Case No: 91-000292F