STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H. R. THORNTON, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6358F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

ORDER OF DISMISSAL

Oral argument on Respondent's motion to dismiss was heard on February 13, 1995, at the time previously noted for final hearing.

At the commencement of the hearing, Respondent's motion to accept James Manning as qualified representative was granted without objection. Petitioner was represented by counsel of record.

After considering the thorough argument and pleadings, it is hereby, ORDERED:

Respondent's motion to dismiss is GRANTED.

Petitioner's petition for fees and costs pursuant to section 57.111, F.S. was filed on November 10, 1994. Respondent's motion to dismiss argues that the petition was filed after the 60-day deadline in sub-section 57.111(4)(b)2. which provides, "The application for an award of attorney's fees and costs must be made within 60 days after the date that the small business party becomes a prevailing small business party."

Petitioner prevailed in his license discipline case #90-2458 on February 1, 1994, when the agency entered its notice of dismissal and closing order stating that the case was closed and the department would take no further action in the matter. (Attachment A, Petition for Fees) The long procedural history of the case is summarized in that closing order.

Petitioner argues that he did not prevail until the agency's dismissal was presented to the probable cause panel of the Board of Professional Land Surveyors on September 12, 1994, since section 455.225(2), F.S. requires that the department provide its report to the probable cause panel prior to dismissal.

Notwithstanding the agency's failure to follow this precise procedural requirement, its decision to dismiss was made final with its February 1994, order. No action by the probable cause panel in September 1994 could have revived the department's prosecution of the Petitioner. At most, under the statutory scheme described in section 455.225, F.S., the probable cause panel

could have determined to proceed with the investigation and prosecution on its own. In that event, the board or probable cause panel, and not the department, would have been the "agency" for purposes of section 57.111, F.S.

Contrary to Petitioner's argument in his response to motion to dismiss, he was not ". . . still subject to prosecution by the same entity for the same alleged violations . . . " after the department's unambiguous notice of dismissal and closing order dated February 1, 1994. Petitioner's November 1994 application for fees from the department, more than 60 days later is untimely.

DONE and ORDERED this 13th day of March, 1995, in Tallahassee, Leon County, Florida.

MARY CLARK

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 13th day of March, 1995.

COPIES FURNISHED:

James E. Manning, Q.R.

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Northwood Centre - Suite #60 1940 North Monroe Street Tallahassee, Florida 32399-0792

G. Steven Pfeiffer

Apgar, Pelham, Pfeiffer & Theriaque 909 East Park Avenue

Tallahassee, Florida 32301

Docket for Case No: 94-006358F

Orders for Case No: 94-006358F