STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. MULDROW, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6001F

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION and ) CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Respondents. )

)

SUMMARY FINAL ORDER

This matter came before the undersigned on March 29, 1995, on respondents' motion for final summary order under Rule 60Q-2.030(1), Florida Administrative Code. Attached to the motion are two exhibits. A response in opposition to the motion has been filed by petitioner, together with an affidavit and various documents attached thereto. All parties were represented by counsel.

At issue here is a petition for attorney's fees and costs filed on behalf of petitioner, a licensed general and roofing contractor. The petition has been filed under Section 57.111, Florida Statutes, on the theory that petitioner was a prevailing party in an administrative action improvidently brought against him by respondents.

The facts giving rise to this controversy are not in dispute. When the underlying disciplinary action was filed, petitioner was a licensed general contractor and roofing contractor under the regulatory jurisdiction of respondents. He was also the owner of, and qualifying agent for, a corporation named Blue-Chip Construction Company, which holds no licenses from the state.

As the qualifying agent for that corporation, petitioner was limited to performing contracting work only for that entity. On May 26, 1992, the Department of Professional Regulation filed an administrative complaint against respondent (but not the corporation) alleging that he had violated Chapter 489, Florida Statutes, in several respects while engaged in the contracting business with his corporation. The complaint was later forwarded to the Division of Administrative Hearings and assigned Case No. 92-3951. Petitioner then filed a motion to dismiss the complaint which was granted by the undersigned in a recommended order of dismissal dated July 22, 1992. Thereafter, the Construction Industry Licensing Board entered a final order rejecting the recommended order of dismissal and subjecting respondent to various sanctions. Petitioner appealed the final order and obtained a reversal of the Board's order and dismissal of the complaint in Muldrow v. Department of Business and Professional Regulation, 641 So.2d 508 (Fla. 1st DCA 1994). He then filed his petition for attorney's fees and costs.

To make out a prima facie case under Section 57.111, Florida Statutes, a party must show that it prevailed in the underlying administrative action, and

that it is a small business party within the meaning of the law. Unless these critical elements can be established, the claim must necessarily fail without regard to whether the agency was substantially justified in filing its complaint. The motion for summary final order is addressed to only one narrow but dispositive issue: whether petitioner is a small business party within the meaning of Subsection 57.111(3)(d)1., Florida Statutes. That provision defines a small business party as "a sole proprietor of an unincorporated business, including a professional practice."

The uncontroverted facts show that the underlying action was instituted against the contracting licenses of Muldrow individually, and not the corporation, which held no license from the state. At the same time, it is acknowledged by all parties that Muldrow is the owner of, and qualifying agent for, the corporation. Nothing in the documents attached to the motion and response disputes these essential facts.

The case of Florida Real Estate Commission v. Shealy, 647 So.2d 151 (Fla.

1st DCA 1994) is dispositive of this issue. In that case, Shealy had been denied a real estate license which he intended to use in a corporation owned by he and his wife. After eventually prevailing in an administrative action, Shealy sought to recover his fees and costs expended in obtaining his license. In denying his request, the court held as follows:

Section 57.111 authorizes an attorney's fee for a qualifying small business party, which must be a corporation, a partnership, or a sole proprietor of an unincorporated business

. . . This does not encompass individual employees. (Citations omitted) Although the appellee and the corporation were found to be "one and the same entity" based on the appellee's control of the business, the statute does not permit such disregard of the corporate form. (emphasis added)

Id. at 152.

Here, as in Shealy, Muldrow claims to be "one and the same entity" based on his 100 percent control of Blue-Chip Construction Company. But since the corporation was not a party to the disciplinary action, "the statute does not permit such disregard of the corporate form," and he cannot qualify as a small business party.

At hearing, Muldrow contended in the alternative that he was engaged in the contracting business as an individual and thus he qualifies as a sole proprietor or one having a professional practice. But under the terms of Section 489.119, Florida Statutes, once Muldrow filed documents as qualifying agent for Blue-Chip Construction Company, he was forbidden from contracting on his own behalf or on behalf of any other entity. Moreover, the administrative complaint in Case No. 92-3951 is grounded upon allegations that petitioner engaged in unlawful activities while performing work as supervising contractor and agent for Blue- Chip Construction Company.

Petitioner has also requested leave to file a post-hearing brief on the issue of whether the legislature intended to omit petitioner and other similarly situated individuals from the scope of the act. Because the statute is clear and unambiguous, however, resort to legislative intent is unnecessary.

Finally, petitioner has filed a motion to intervene on behalf of Blue-Chip Construction Company. The motion is denied since that entity was not a party to the underlying disciplinary action, it holds no license from the state, and thus it has no direct and immediate interest in this proceeding.

It is, therefore,

ORDERED that the motion for summary final order is GRANTED, and petitioner's request for attorney's fees and costs is DENIED.

DONE AND ORDERED this 3rd day of April, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 3rd day of April, 1995.

COPIES FURNISHED:

Robert Woolfork, Esquire

317 East Park Avenue Tallahassee, FL 32301

Stuart F. Wilson-Patton, Esquire Department of Legal Affairs

The Capitol, PL-01 Tallahassee, FL 32399-1050

Charles F. Tunnicliff, Esquire Dept. of Bus. and Prof. Regulation 1940 North Monroe St., Ste. 60

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: 94-006001F

Orders for Case No: 94-006001F