08-000319F Victor Harrison vs. Department Of Business And Professional Regulation, Division Of Real Estate Status: Closed DOAH Final Order on Wednesday, June 4, 2008.

Summary: Petitioner was not entitled to attorney`s fees and costs. He was not a "small business party."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR HARRISON, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF BUSINESS AND ) Case No. 08-0319F

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

)

FINAL ORDER

On January 16, 2008, Petitioner, Victor Harrison, made

application for attorney's fees and costs in Petitioner's Florida

Statutes 57.111 Motion for Attorney Fees/Costs, pursuant to

Section 57.111 (4), Florida Statutes (2003). This request was in

relation to the outcome in Florida Department of Business and

Professional Regulation, Division of Real Estate, Petitioner, v.

Victor Harrison, Respondent , DOAH Case No. 06-3387PL/DBPR, Case

No. 2001-80524. Petitioner in this case claims to be a

"prevailing small business party," as defined in Subsection

an award of attorney's fees and costs, absent substantial

justification for the present Respondent, Department of Business

and Professional Regulation, Division of Real Estate (DBPR), in

its actions against Victor Harrison (Harrison) in the prior case

or lacking special circumstances that would cause the award of

attorney's fees and costs to be unjust. § 57.111(4)(a), Fla.

Stat. (2003).

On April 7, 2008, a hearing was conducted by video-

teleconference between sites in Tallahassee, Florida, and

Pensacola, Florida, to allow evidence to be presented addressing

the application for attorney's fees and costs. § 57.111, Fla.

Stat. (2003). The hearing was held by Charles C. Adams,

Administrative Law Judge.

APPEARANCES

For Petitioner: Thomas M. Brady, Esquire

3250 Navy Boulevard, Suite 204

Post Office Box 12584

Pensacola, Florida 32591-2584

For Respondent: Robert Minarcin, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N 801

Orlando, Florida 32801-1772

PRELIMINARY STATEMENT

After the application for attorney's fees and costs had been

filed, DBPR filed a Motion to Dismiss on February 6, 2008. On

that same date Harrison responded to the motion. On February 11,

2008, Harrison filed a supplemental response to the motion.

The motion and responses were addressed at hearing, with the

understanding that the arguments offered by the respective

parties would be considered in preparing the Final Order.

On February 26, 2008, the Notice of Hearing to be held by

video teleconference was provided, setting April 7, 2008, as the

hearing date.

On March 25, 2008, Harrison filed a Motion in Limine asking

that Daniel Villazon, Esquire, be prohibited from testifying as

an expert witness for DBPR, on the subject of the reasonableness

of Harrison's request for attorney's fees and costs and

prohibiting introduction of any evidence by DBPR pertaining to

the probable cause proceedings associated with the disciplinary

case against Harrison. On March 31, 2008, Harrison filed an

amendment to that motion. Daniel Villazon was not called to

testify as an expert making the issue moot concerning any

prohibition against his testimony. The question of introduction

of evidence concerning probable cause proceedings was addressed

when DBPR moved to admit the August 4, 2003, transcript excerpts

of the Florida Real Estate Appraisal Board, Division of Real

Estate (probable cause) meeting considering the investigation of

Harrison, as Respondent's Exhibit numbered 1 in the present case.

That exhibit was admitted over Harrison's objection.

On March 31, 2008, DBPR filed a Notice of Official

Recognition pertaining to what became Respondent's Exhibit

numbered 1 and two other exhibits. On April 1, 2008, a Corrected

Notice of Official Recognition pertaining to those exhibits was

filed by DBPR.

On April 1, 2008, Harrison filed an objection to and Demand

for Opportunity to Examine and Contest a Matter Sought by

Respondent to be Officially Recognized. This objection addressed

the third item in the Notice of Official Recognition. Eventually

that third item became Respondent's Exhibit numbered 3 admitted

at hearing. (The second item requested for official recognition

to be made was not offered as an exhibit at hearing.) However,

for fact-finding purposes concerning the Final Order in DBPR Case

No. 2001-80524 and its reference to the Recommended Order in

association with DOAH Case No. 06-3378PL, DBPR's request for

official recognition in accordance with Section 120.569(2)(i),

Florida Statutes (2007), (Respondent's Exhibit numbered 2) is

granted.

On April 3, 2008, Harrison filed an objection to what became

Respondent's Exhibits numbered 1 and 3, that was overcome when

the decision was made to admit the exhibits at hearing.

On April 1, 2008, Harrison filed a request for official

recognition of certain materials referred to as an evidentiary

exhibit binder. That binder contained Harrison's exhibits which

became a series of exhibits admitted as Petitioner's Exhibits

numbered 1 through 31 at hearing. Within that group Petitioner's

Exhibits numbered 13-15 were admitted on a limited basis as

explained in the hearing transcript. In accordance with

Harrison's request, he was allowed to file supplements to

Petitioner's Exhibits numbered 1, 5 and 13 post-hearing. Those

supplemental exhibits were filed on April 7, 2008, becoming part

of Petitioner's earlier exhibits.

By agreement of the parties the matters in dispute needing

resolution were limited to the question of whether: (1) Harrison

is a "small business party" as defined in Subsection

57.111(3)(d), Florida Statutes (2003) and (2) whether DBPR was

"substantially justified" when it filed the Administrative

Complaint in the underlying case, Florida Department of Business

and Professional Regulation, Division of Real Estate, Petitioner

v. Victor Harrison, Respondent , DOAH Case No. 06-3387PL/DBPR

2001-80524. § 57.111(3)(e), Fla. Stat. (2003)

On April 25, 2008, the hearing transcript was filed with

DOAH. On May 5, 2008, the parties filed proposed orders which

have been considered in preparing the Final Order.

FINDINGS OF FACT

§ 57.111(3)(f) Fla. Stat. (2003)

"state agency"

1. DBPR meets the definition found within Section

120.52(1)(b)1, Florida Statutes (2003), as an "agency."

§ 57.111(3)(b)2. and 3., Fla. Stat. (2003)

"initiated by a state agency"

2. As reflected in the file related to DOAH Case No. 06-

3387PL, on August 6, 2003, the Florida Real Estate Appraisal

Board in Florida Department of Business and Professional

Regulation, Division of Real Estate, Petitioner vs. Victor

Harrison, Respondent , FDBPR Case No. 2001-80524, charged Victor

Harrison with violations of Chapter 475, Part II, Florida

Statutes (2005), in his capacity as a certified real estate

appraiser. This was action "initiated by a state agency." The

Administrative Complaint was directed to Victor Harrison who held

Certificate No. RH-119 issued by DBPR on November 18, 1996. On

December 10, 2003, Harrison responded to the Administrative

Complaint concerning his position on factual allegations alleging

violations found in Counts I through V to the Administrative

Complaint. This was treated as a request for formal hearing

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2005). On September 11, 2006, DOAH received the case from DBPR.

3. On March 20, 2007, a formal hearing was held to consider

the Administrative Complaint. On May 30, 2007, a Recommended

Order was entered recommending that the case be dismissed.

§ 57.111(3)(c)1., Fla. Stat. (2003)

"prevailing small business party"

4. On October 18, 2007, the Division of Real Estate on

behalf of the Real Estate Appraisal Board, in the case before

DBPR, Florida Department of Business and Professional Regulation,

Division of Real Estate, Petitioner, vs. Victor Harrison,

Respondent , DBPR Case No. 2001-80524, by Final Order dismissed

the Administrative Complaint.

§ 57.111(3)(d), Fla. Stat. (2003)

"small business party"

5. Harrison conducts his appraisal business as Gulf Coast

Appraisals, a sole proprietorship.

6. On August 6, 2003, when the Administrative Complaint was

signed accusing him, Harrison operated as Gulf Coast Appraisals.

At times relevant, he had no other employees and his net worth

did not exceed two (2) million dollars.

§ 57.111(4)(b), Fla. Stat. (2003)

"itemized affidavit"

7. An itemized affidavit was submitted, as amended, to DOAH

revealing the nature and extent of the services rendered by

Harrison's attorney. In all respects concerning the proceeding,

the parties agree that the total amount of attorney's fees and

costs was $31,919.23. DBPR accepts the amount as reasonable and

just, should Harrison prevail in his overall claims, that is

should Harrison be found to be a "prevailing small business

party," in a setting where it was decided that DBPR was not

"substantially justified" in its actions pursuant to the

Administrative Complaint in the underlying case.

§ 57.111(4)(b)2., Fla. Stat. (2003)

"filing of the application"

8. The application for attorney's fees and costs was filed

on January 16, 2008.

§ 57.111(4)(d)1., Fla. Stat. (2003)

"nominal party"

9. When DBPR undertook its prosecution directed to

Harrison, it was not acting as a nominal party.

§ 57.111(3)(e), Fla. Stat. (2003)

"substantially justified"

10. On January 9, 1997, Harrison rendered a Uniform

Residential Appraisal Report on property at 693 Broad Street,

Pensacola, Florida.

11. Daniel A. Ryland, another real estate appraiser doing

business in Pensacola, Florida, made a complaint against Harrison

in relation to the appraisal report prepared by Harrison. On

November 21, 2001, he was interviewed by Benjamin F. Clanton, an

investigator with DBPR concerning the nature of his complaint.

During the course of the interview, Ryland provided Clanton a

completed Uniform Complaint Form outlining the concerns expressed

by Ryland about the aforementioned appraisal at 693 Broad Street

in Pensacola, Florida, performed by Harrison. In his remarks,

Ryland, in great detail, explained why he thought the earlier

appraisal by Harrison was questionable.

12. In carrying out an investigation of the Ryland

complaint, Clanton interviewed Harrison, Fred R. Catchpole, and

Rhonda Guy, all persons involved with the January 9, 1997,

appraisal, and all persons performing various functions as

appraisers. Clanton interviewed others as well. He collected a

number of exhibits concerning specific information about the

appraisal and related data. All of this information was made

part of an investigative report completed by Clanton on

December 26, 2001, and approved by a supervisor, Sydney B.

Miller, two days later.

13. The predicate for the investigative report by Clanton

came from Ryland's complaint, in which there was some allusion to

a violation of Section 475.624(14), (15) and (17), Florida

Statutes, on Harrison's part. In summary, the complaint

addressed the contention that the January 9, 1997, appraisal on

property at 693 Broad Street, Pensacola, Florida, overvalued the

property in comparison with other properties thought to be

superior in their value.

14. As the table of contents associated with the Clanton

investigative report describes, Respondent's Exhibit numbered 3,

materials in association with the investigation numbered over 320

pages.

15. On August 4, 2003, the Florida Real Estate Appraisal

Probable Board meeting on probable cause was held. In the course

of that meeting, the matter of Victor Harrison, referred to as

item number 200180524 was considered by panel members, with

Cynthia A. Wright, sitting as the chairperson, Clay Ketcham, and

Mary Calloway, serving as the additional members. At the same

time the cases involving Rhonda E. Guy and Fred R. Catchpole were

under consideration.

16. In the panel discussion, it was noted that Catchpole

and Harrison were licensed real estate appraisers and Guy was a

registered trainee appraiser. Discussion was made of the

January 9, 1997, appraisal of the aforementioned residential

property. Information was imparted concerning the method or

approach in performing the appraisal and perceived failings in

the process.

17. In the discussion, generally stated, Respondent was

charged " . . . with failure to exercise reasonable diligence in

developing an appraisal, violating a standard for the development

or communication of an appraisal, breach of trust in any business

transaction."

18. There was additional discussion that Harrison " . . .

failed to produce or provide the data that he (Harrison) and Guy

both relied upon in communicating and developing the appraisal."

Further there was a discussion to the effect " . . . that

Respondent Guy completed an inspection of the property without

the assistance of Respondent Harrison. Respondent Harrison did

not inspect the comparables until after the report was

submitted." As a result, the discussion at the meeting went on

to say ". . . we charge Respondent Harrison with failure to

obtain records for at least five years, guilty of obstructing or

hindering the enforcement of [sic] license law."

19. Then the presenter stated, "We asked that you find

probable cause and issue the filing of an Administrative

Complaint in Case . . . 200180524, regarding Victor Harrison

. . . ".

20. Following the presentation concerning Harrison, the

August 4, 2003, excerpt of the meeting indicates:

CHAIRPERSON WRIGHT: Mr. Ketcham?

MR. KETCHAM: Do you want to take up the

first one, the Victor Harrison case first; is

that the one we want to deal with.

MS. WATKINS: Yes, sir, that's fine.

MR. KETCHAM: Okay. I did not really have

any questions and I wanted to make sure also

we're charging them with failure to maintain

records and that's because they didn't

deliver a copy of the requested report.

MR. SMITH: Yes. If that question is -- I'm

sorry for misspeaking. But if that question

is designed for me, yes, that's one of the

reasons.

MR. KETCHAM: Okay. Then I don't have any

other questions. And after a complete review

of the file, I would find probable cause and

recommend the opening of an administrative

complaint.

CHAIRPERSON WRIGHT: Thank you, Mr. Ketcham.

Ms. Calloway?

Ms. CALLOWAY: Calloway here. After a

complete review of the record I find probable

cause recommend the filing of an

administrative complaint on Victor Harrison.

CHAIRPERSON WRIGHT: And after a complete

review of the record I find probable cause

and recommend an administrative complaint be

filed on Mr. Harrison.

(Whereupon, this concludes this portion of

Florida Real Estate Appraisal Board Meeting,

In Re: Victor Harrison.)

21. The action by the probable cause panel led to the

Administrative Complaint in Case No. 200180524 in relation to the

January 9, 1997, appraisal report for the property at 693 Broad

Street, Pensacola, Florida, for alleged misconduct referred to in

the Administrative Complaint. Harrison was alleged to have

violated Sections 475.624(2), (4), (14), and (15), and

475.626(1)(f), Florida Statutes, as follows:

COUNT I

Based upon the foregoing, Respondent is

guilty of failure to retain records for at

least five years of any contracts engaging

the appraiser's services, appraisal reports,

and supporting data assembled and formulated

by the appraiser in preparing appraisal

reports in violation of Section 475.629,

Florida Statutes, and, therefore, in

violation of Section 475.624(4), Florida

Statutes.

COUNT II

Based upon the foregoing, Respondent is

guilty of having failed to exercise

reasonable diligence in developing an

appraisal report in violation of Section

475.624(15), Florida Statutes.

COUNT III

Based upon the foregoing, Respondent has

violated a standard for the development or

communication of a real estate appraisal or

other provision of the Uniform Standards of

Professional Appraisal Practice in violation

of Section 475.624(14), Florida Statutes.

COUNT IV

Based upon the foregoing, Respondent is

guilty of misrepresentation, culpable

negligence, or breach of trust in any

business transaction in violation of Section

475.624(2), Florida Statutes.

COUNT V

Based upon the foregoing, Respondent is

guilty of having obstructed or hindered in

any manner the enforcement of Chapter 475,

Florida Statutes or the performance of any

lawful duty by any person acting under the

authority of Chapter 475, Florida Statutes in

violation of Section 475.626(1)(f), Florida

Statutes.

§ 57.111(4)(a), Fla. Stat. (2003)

"special circumstances"

22. DBPR has made no argument and no evidence was presented

by DBPR in this case, to show that special circumstances exist

that would make the award of attorney's fees and costs unjust.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the subject matter and the

parties in this case in accordance with Section 57.111, Florida

Statutes (2003), and Sections 120.569 and 120.57(1), Florida

Statutes (2007).

24. DBPR initiated action following an investigation in

DBPR Case No. 2001-80524, when the probable cause panel decided

to proceed against Harrison based upon material provided through

the investigation. On August 4, 2003, this decision was reached.

On August 6, 2003 the Administrative Complaint was signed and was

issued and notice provided arising from the determination of

probable cause to Harrison concerning his right to dispute

matters in the Administrative Complaint. Section 57.111, Florida

Statutes (2003), was in effect on those dates.

25. On January 16, 2008, Harrison applied for an award of

attorney's fees and costs. Section 57.111, Florida Statutes

(2007), was the law in place at that time. It differed from

Section 57.111, Florida Statutes (2003), in that Section 57.111,

Florida Statutes (2007), recognized an additional class of "small

business party," wherein at Section 57.111(3)(d)(1).c., Florida

An individual whose net worth did not exceed

$2 million at the time the action is

initiated by a sate agency when the action is

brought against that individual's license to

engage in the practice or operation of a

business, profession, or trade.

26. Before preceding with the legal analysis it must be

determined whether Section 57.111, Florida Statutes (2003), or

Section 57.111, Florida Statutes (2007), pertains. Section

57.111, Florida Statutes (2003), controls the case.

27. The right to attorney's fees granted by statute are

substantive in nature rather than procedural. Moser v. Barron

Chase Sec. Inc. , 783 So. 2d 231 (Fla. 2001) Recognizing the

substantive nature of Section 57.111, Florida Statutes, dealing

with attorney's fees and costs, changes to this statute are to be

applied prospectively, not retroactively, unless the Legislature

has specifically stated that the amendment to this statute should

be applied retroactively. Timmons v. Combs , 608 So. 2d 1 (Fla.

1992); Hampton v. Cale of Ft. Myers, Inc. , 964 So. 2d 822 (Fla.

4th DCA 2007). Section 57.111, Florida Statutes (2007), does not

contain a provision establishing retroactive application. Walker

v. Cash Register Auto Insurance of Leon County, Inc. , 946 So. 2d

66 (Fla. 1st DCA 2006) and Environmental Confederation of

Southwest Florida, Inc., v. Department of Environmental

Protection , 886 So. 2d 1013 (Fla. 1st DCA 2004).

28. The change to Section 57.111, Florida Statutes, that

created a new class of "small business party" entitled to receive

an award of attorney's fees and costs was an expansion of the

law. That expansion was substantive in nature. FDBPR's actions

that formed the basis for proceeding, the determination of

probable cause, followed by the administrative complaint, fall

within the purview of Section 57.111, Florida Statutes (2003).

Only those persons entitled to pursue an application for an

attorney's fees and costs under that statute can be heard. The

amendment to Section 57.111, Florida Statutes, in place in

as a means to recover attorney's fees and costs. Mullins v. John

Kennelly and Patricia Kennelly , 847 So. 2d 1151 (Fla. 5th DCA

2003).

29. Therefore, this case arises under the "Florida Equal

Access to Justice Act," Section 57.111(1), Florida Statutes

(2003). By the action, Harrison seeks to recover "attorney's

fees and costs" as defined in Section 57.111(3)(a), Florida

Statutes (2003), which states:

(3) As used in this section:

(a) The term "attorney's fees and costs"

means the reasonable and necessary attorney's

fees and costs incurred for all preparations,

motions, hearings, trials, and appeals in a

proceeding.

30. To begin this case Harrison had to comply with the

procedural expectations in Section 57.111(4)(b)1. and 2., Florida

Statutes (2003), where it states:

1. To apply for an award under this section,

the attorney for the prevailing small

business party must submit an itemized

affidavit to the court which first conducted

the adversarial proceeding in the underlying

action, or to the Division of Administrative

Hearings which shall assign an administrative

law judge, in the case of a proceeding

pursuant to chapter 120, which affidavit

shall reveal the nature and extent of the

services rendered by the attorney as well as

the costs incurred in preparations, motions,

hearings, and appeals in the proceeding.

2. The application for an award of

attorney's fees must be made within 60 days

after the date that the small business party

becomes a prevailing small business party.

31. The right to recover "attorney's fees and costs" is

premised upon the outcome of a case "initiated by a state

agency," according to Section 57.111(3)(b), Florida Statutes,

which states:

(3) As used in this section:

* * *

(b) The term "initiated by a state agency"

means that the state agency:

1. Filed the first pleading in any state or

federal court in this state;

2. Filed a request for an administrative

hearing pursuant to chapter 120; or

3. Was required by law or rule to advise a

small business party of a clear point of

entry after some recognizable event in the

investigatory or other free-form proceeding

of the agency;

32. The term "state agency" in Section 57.111(3)(f),

Florida Statutes (2003), relies on the definitional statement in

Section 120.52(1), Florida Statutes (2003), for the term

"agency." The term "agency" found at Section 120.52(1)(b)1. and

2., Florida Statutes (2003), states:

(1) Agency "means:"

(b) Each:

1. . . . state department and each

departmental unit described in s. 20.04.

* * *

3. Board.

33. A "prevailing small business party" is the only entity

that would be entitled to collect "attorney's fees and costs,"

under the Florida Equal Access to Justice Act. A small business

party prevails, according to Section 57.111(3)(c), Florida

Statutes (2003):

(c) . . . when:

1. A final judgment or order has been

entered in favor of the small business party

and such judgment or order has not been

reversed on appeal or the time for seeking

judicial review of the judgment or order has

expired;

2. A settlement has been obtained by the

small business party which is favorable to

the small business party on the majority of

issues which such party raised during the

course of the proceeding; or

3. The state agency has sought a voluntary

dismissal of its complaint.

34. As stated in Section 57.111(3)(d), Florida Statutes

(2003):

(d) The term "small business party" means:

1.a. A sole proprietor of an unincorporated

business, including a professional practice,

whose principal office is in this state, who

is domiciled in this state, and whose

business or professional practice has, at the

time the action is initiated by a state

agency, nor 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;

or . . .

35. The "attorney's fees and costs" incurred by Harrison

were reasonable and necessary. The form in which Harrison sought

the attorney's fees and costs was in order. The application was

timely. Any recovery is in relation to action "initiated by a

state agency," DBPR. A Final Order was entered in Harrison's

favor but Harrison is not a "small business party."

§ 57.111(3)(d), Fla. Stat. (2003).

36. To prove his entitlement to attorney's fees and costs

Harrison through a preponderance of the evidence must prove that

he prevailed, which he has done and that he is a "small business

party," which he has not proven. Dept. of Professional

Regulation, Division of Real Estate v. Toledo Realty, Inc. , et

al. , 549 So. 2d 715 (Fla. 1st DCA 1989).

37. The action that formed the basis for Harrison's claims

addressed him in his capacity as a licensed real estate

appraiser, in his individual capacity. It did not address him as

a sole proprietor of Gulf Coast Appraisals. As a licensed

individual he could not proceed under Section 57.111(3)(d),

Florida Statutes (2003). Daniels v. Florida Department of

Health , 898 So. 2d 61 (Fla. 2005); Daniels v. State Department of

Health , 868 So. 2d 551 (Fla. 4th DCA 2004) and Florida Real

Estate Commission v. Shealy , 647 So. 2d 151 (Fla. 1st DCA 1994).

38. Should it have been concluded that Harrison was a

"prevailing small business party," which conclusion has not been

reached, the burden would shift to DBPR to prove that it was

"substantially justified" in its determination to proceed against

Harrison's real estate appraiser's license. Toledo , supra . It

would be necessary for DBPR to prove that it had " . . . a

reasonable basis in law and fact at the time it (the action) was

initiated . . ." § 57.111(3)(e), Fla. Stat. (2003).

39. In determining whether DBPR was justified in finding

probable cause and bringing the Administrative Complaint, the

investigative file that has been described contained competent

and relevant evidence to be considered by the probable cause

panel in it deliberation. Toledo , supra . It is the information

before the probable cause panel at the time that it found

probable cause and directed the filing of the Administrative

Complaint that is meaningful in deciding whether DBPR was

"substantially justified" in proceeding. Department of Health,

Board of Physical Therapy Practice v. Cralle , 852 So. 2d 930

(Fla. 1st DCA 2003). The investigator's opinions concerning the

underlying complaint, and other supporting information can be

used to justify the prosecution if deemed credible. Gentele v.

Department of Professional Regulation, Board of Optometry , 513

So. 2d 672 (Fla. 1st DCA 1987).

40. It is the quality of the information available at the

time that the action was initiated that determines whether there

was a reasonable basis in law and fact to proceed. Department of

Health and Rehabilitative Services v. S.G. , 613 So. 2d 1380 (Fla.

1st DCA 1993).

41. As explained in Fish v. Department of Health, Board of

Dentistry , 825 So. 2d 421, 423 (Fla. 4th DCA 2002), DBPR "must

have a solid though not necessarily correct basis in fact and law

for the position it took in the action," citing from McDonald v.

Schweiker , 726 F.3d 311, 316 (7th Cir. 1983). There must be a

sufficient foundation in relation to information available before

DBPR would be substantially justified in proceeding with its

action. Casa Febe Retirement Home v. State , 892 So. 2d 1103

(Fla. 2nd DCA 2004).

42. The information presented to the probable cause panel

and considered created a solid foundation for making a decision

as to matters of fact and law, as further discussed by the legal

advisor during the meeting. The process engaged in indicated

that the panel had "a working knowledge of the applicable

statutes under which it [was] proceeding" Helmy v. Department of

Business and Professional Regulation , 707 So. 2d 366, 370 (Fla.

1st DCA 1998). DBPR was "substantially justified" in law and

fact when it chose to pursue the Administrative Complaint in DBPR

Case No. 2001-80524 directed to Harrison. Therefore, Harrison is

not entitled to an award of attorney's fees and costs, even if he

were found to be a "prevailing small business party."

43. In reaching the conclusions concerning Harrison's

rights to an award of attorney's fees and costs, precise

attention has not been given to the procedural expectations set

out in Section 455.225, Florida Statutes (2003), by which DBPR

was bound in the underlying proceeding. That quality of review

is not contemplated in determining the outcome in the Section

57.111, Florida Statutes (2003), case on the subject of

attorney's fees and costs, nor are the difficulties experienced

by Harrison in preparing to defend the action in DOAH Case No.

06-3387PL/DBPR Case No. 200180524, in an effort at accomplishing

discovery in accordance with Section 120.57(1)(f), Florida

Statutes (2006), a proper subject for resolution in the present

case. The experiences in the prior case concerning the conduct

of discovery do not limit DBPR here in its opportunity to present

its evidence concerning the supporting materials upon which

probable cause was determined, even in the instance where it

could be shown that those materials were not made available in

the underlying case.

44. Harrison's attempt to recover attorney's fees and costs

in relation to consultation with Joseph L. Hammons, Esquire, to

establish his opinion concerning the reasonableness of Harrison's

attorney's fees and costs incurred by his counsel is not allowed,

recognizing that Harrison has not prevailed in this action.

Based upon the facts found and the Conclusions of Law

reached, it is

ORDERED: The application for attorney's fees and costs in

association with DBPR Case No. 200180524 is denied.

DONE AND ORDERED this 4th day of June, 2008, in Tallahassee,

Leon County, Florida.

S

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 2008

COPIES FURNISHED :

Thomas M. Brady, Esquire

3250 Navy Boulevard, Suite 204

Post Office Box 12584

Pensacola, Florida 32591-2584

Robert Minarcin, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N 801

Orlando, Florida 32801-1772

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N 802

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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 the original

Notice of Appeal with the agency Clerk of the Division of

Administrative Hearings and a 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.