STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: ELI TOURGEMAN ) CASE NO. 94-4671FE

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SUMMARY FINAL ORDER

Petitioner, Eli Tourgeman, filed a Petition for Award of Costs and Attorney Fees against Respondent, Florida Commission on Ethics. Respondent filed a Motion to Dismiss or for Summary Final Order. The Division of Administrative Hearings by its duly designated Hearing Officer, Susan B. Kirkland, heard argument of counsel by telephonic conference on October 20, 1994.

APPEARANCES

For Petitioner: Philip C. Claypool, General Counsel

C. Christopher Anderson, III, Staff Attorney

State of Florida Commission on Ethics Post Office Drawer 15709

Tallahassee, Florida 32317-5709

For Respondent: Richard Waserstein, Esquire

913 Normandy Drive

Miami Beach, Florida 33141 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to attorney fees and costs pursuant to Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

An ethics complaint was filed against Petitioner, Eli Tourgeman (Tourgeman), alleging that Tourgeman, as Mayor of the Town of Surfside, violated Chapter 112, Florida Statutes. Respondent, the Florida Commission on Ethics (Commission) found probable cause to believe that Tourgeman had violated Section 112.313(6), Florida Statutes and forwarded the case to the Division of Administrative Hearings for assignment to a Hearing Officer to conduct the formal hearing. The undersigned Hearing Officer conducted a formal hearing and issued a Recommended Order that the Complaint be dismissed against Tourgeman.

The Commission issued a Final Order and Public Report on July 20, 1994, finding that Tourgeman did not violate Section 112.313(6), Florida Statutes, and dismissing the complaint filed against Tourgeman. On August 24, 1994, Tourgeman filed a Petition for Award of Costs and Attorney Fees against Respondent, State of Florida Commission on Ethics (Commission), relating to the ethics complaint. The Commission filed a Motion to Dismiss or for Summary Final Order. Oral argument on the motion was held by telephonic conference on October 20, 1994.

The parties were given leave to file memorandums of law relating to the issue of whether Tourgeman was a "small business party" as defined by Section 57.111(3)(d), Florida Statutes.

FINDINGS OF FACT

1. An ethics complaint was filed against Petitoner, Eli Tourgeman (Tourgeman) alleging that Tourgeman, as Mayor of the Town of Surfside, violated Chapter 112, Florida Statutes.

   
   

2. Respondent, the Florida Commission on Ethics (Commission), found probable cause to believe that Tourgeman did violate Section 112.313(6), Florida Statutes.

   
   

3. A formal hearing was held by the Division of Administrative Hearings. Tourgeman hired Richard Waserstein to represent him in the administrative proceedings.

   
   

4. The Commission issued a Final Order and Public Report on July 20, 1994, Complaint No. 91-73 and Final Order No. COE 94-28, finding that Tourgeman did not violate Section 112.313(6), Florida Statutes, and dismissing the complaint.

   
   

5. Tourgeman filed a Petition for Award of Costs and Attorneys Fees. In the petition, he alleged that he was on the Town of Surfside City Commission for six years and during the last four years he served as Vice Mayor and Mayor of the Town of Surfside. He also alleged that he is a banker employed by Glendale Federal as a Branch Manager and Vice President.

   
   

6. Mr. Waserstein spent 52.75 hours in representing Tourgeman in the case at a rate of $150 per hour. The total cost for legal services was $7,912.50.

   
   

7. The costs incurred by Tourgeman was $1,934, which included costs for depositions, transcripts, and travel to attend the Commission meeting in Tallahassee.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57 and 57.111, Florida Statutes.

   
   

9. Section 57.111 (4) (a), Florida Statutes provides:

   
   

   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.

10. Section 57.111(3)(d), Florida Statutes provides: The term 'small business party' means:

    1.a. A sole proprietor or unincorporated

    business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business has at the time the action is initiated by a

    state agency, not more than 25 full-time employees or a net worth of not more than

    $2 million, including both personal and business investments; or

    b. A partnership or corporation, including

    a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million;. . .

    
    

11. In Florida Real Estate Commission v. Shealy, 647 So.2d 151 (Fla. 1st DCA), the petitioner sought attorneys fees and costs against the Florida Real Estate Commission when the petitioner successfully challenged the Real Estate Commission's denial of a real estate license. Petitioner argued that he desired to obtain the license for use in his business which was wholly owned by him and his wife. The court concluded that the petitioner was not a small business as defined in Section 57.111(3)(d), "the corporation was not a party to any of the proceedings below, and the appellee appeared in his individual capacity." Id. at 152. Tourgeman is not a small business party as that term is defined by Section 57.111(3)(d). The action was against Tourgeman as a public official, not as a small business.

    
    

12. Tourgeman is not entitled to an award of attorneys fees and costs pursuant to Section 57.111, Florida Statutes.

WHEREFORE, it is ORDERED that the Petition for Award of Costs and Attorneys fees is hereby DISMISSED.

DONE AND ORDERED this 22nd day of March, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 22nd day of March, 1995.

COPIES FURNISHED:

C. Christopher Anderson, III, Esquire Phillip C. Claypool, Esquire

State of Florida Commission on Ethics Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Richard Waserstein, Esquire 913 Normandy Drive

Miami Beach, Florida 33141

Bonnie Williams Executive Director

Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, Esquire General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

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: 94-004671FE

Orders for Case No: 94-004671FE