The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to the provisions of Section 57.111, Florida Statutes (2004), and, if so, in what amount.
Findings Of Fact In May 2003, Respondent filed an Amended Administrative Complaint against Petitioner. The Amended Administrative Complaint was brought before the Florida Real Estate Commission Probable Cause Panel (Probable Cause Panel) for a determination of probable cause. The Probable Cause Panel reviewed the entire record and found probable cause to file an Amended Administrative Complaint against Petitioner alleging various violations of Section 475.25, Florida Statutes (2004). On or about July 2, 2003, Petitioner served Respondent, through counsel, with Petitioner's response to the Amended Administrative Complaint. Petitioner did not dispute the essential allegations of material fact in the Amended Administrative Complaint, but raised affirmative defenses to the allegations. On or about November 19, 2003, at the Florida Real Estate Commission (FREC) meeting, Petitioner's counsel stated that they did not dispute the essential facts as alleged in the Amended Administrative Complaint and requested a formal hearing based on additional facts alleged by Petitioner, but not Respondent. Following a formal hearing, a Recommended Order was entered by the undersigned Administrative Law Judge on August 11, 2004, in the case of Department of Business and Professional Regulation, Division of Real Estate v. Nicholas Anthony Musashe and the Jander Group, Inc. (Petitioner herein). The case arose from allegations that Mr. Musashe and Petitioner violated various provisions of the Real Estate Practice Act, Chapter 475, Florida Statutes (2004), with respect to the handling of certain deposits. Petitioner is a Florida corporation owned by Mr. Musashe. Petitioner is licensed as a real estate broker under the provisions of Chapter 475, Florida Statutes (2004). Petitioner's sole business is managing rental properties. The gravamen of the complaint against Petitioner was that it failed to handle certain deposits as directed by provisions of Chapter 475, Florida Statutes (2004). Petitioner's defense was that it handled those deposits in accordance with the Residential Landlord and Tenant Act, Chapter 83, Part II, Florida Statutes (2004), specifically Section 83.40, Florida Statutes (2004). That provision provides that compliance therewith specifically exempts real estate licensees from having to comply with the provisions of Chapter 475, Florida Statutes (2004), concerning rental deposits. Furthermore, Petitioner's method of handling these types of deposits under the Residential Landlord and Tenant Act, rather than under Chapter 475, Florida Statutes (2004), had been earlier specifically approved of by Respondent. Prior to filing the underlying case and without notice to real estate brokers, Respondent reversed its position. It now required real estate licensees to comply with the provisions of Chapter 475, Florida Statutes (2004), instead of Chapter 83, Florida Statutes (2004), on how these types of deposits should be handled. Petitioner relied, to his detriment, upon the previously-held position of Respondent in handling the subject deposits. The Recommended Order found in Petitioner's favor and recommended dismissal of the charges. A final order essentially adopting the Recommended Order and dismissing the charges was filed by the FREC on January 7, 2005. However, the Final Order rejected the first sentence of the Conclusions of Law, paragraph 24, and the first two sentences of the Conclusions of Law, paragraph 29, in the Recommended Order and asserted that it has substantive jurisdiction over the provisions of Section 83.49, Florida Statutes (2004). Respondent holds that the alternative procedure for handling deposits set out in Section 83.49, Florida Statutes (2004), does not apply to deposits that are made by a person who is not entitled to occupy a property as part of an application that is not a rental agreement. Petitioner was the "prevailing party" in the underlying action, as that term is defined in Section 57.111, Florida Statutes (2004). At the time of commencement of the action, Petitioner was a "small business party" as that term is defined in Section 57.111, Florida Statutes (2004). A Petition for Costs and Attorney's Fees pursuant to Section 57.111, Florida Statutes (2004), was filed by Petitioner with Respondent agency on February 7, 2005. Respondent took no action on said Petition. The Petition was late-filed with DOAH on April 18, 2005. The attorney's fees of $49,610.00 and costs of $1,137.98 sought by Petitioner are reasonable for the defense of this action. The actions of the agency in bringing the initial proceeding were substantially justified. There are no circumstances which would make an award of costs and attorney's fees unjust.
