16-000344F Boca View Condominium Association, Inc. vs. Department Of Business And Professional Regulation, Division Of Florida Condominiums, Timeshares And Mobile Homes Status: Closed DOAH Final Order on Tuesday, June 14, 2016.

Summary: Although agency withdrew Administrative Complaint after filing, agency action was substantially justified at time of filing and no attorney fees were appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOCA VIEW CONDOMINIUM

ASSOCIATION, INC.,

Petitioner,

vs. Case No. 16 - 0344F

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF FLORIDA

CONDOMINIUMS, TIMESHARES AND

MOBILE HOMES,

Respondent.

__ _____________________________/

FINAL ORDER

On May 2, 2016, a duly - noticed hearing was held in

Tallahassee, Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings.

APPEARANC ES

For Petitioner: Robert I. Rubin, Esquire

Becker & Poliakoff, P.A.

Seventh Floor

625 North Flagler Drive

West Palm Beach, Florida 33401

For Respondent: Robin E. Smith, Esquire

Ryan N. Lumbreras, Esquire

Andrew Rubin Fier, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Flori da 32399

STATEMENT OF THE ISSUE S

Whether Petitioner is entitled to attorney ' s fees and costs

as a prevailing small business party pursuant to section 57.111,

Florida Statutes (2015), 1/ and , if so, in what amount.

PRELIMINARY STATEMENT

On December 17, 20 15, the Department of Business and

Professional Regulation, Division of Florida Condominiums,

Timeshares and Mobile Homes (Division or Respondent) , filed a

Motion to Dismiss the Petition and Cancel Hearing in DOAH Case

No. 15 - 6768 (the merits case). In th e merits case, the Division

had issued a Notice to Show Cause to Boca View Condominium

Association, Inc. (the Association or Petitioner), alleging that

the Association had failed to assess based upon proportionate

share or as stated in the declaration of c ondominium, by

improperly posting a $1,961.34 charge to complainant Alexander

Boburka ' s unit owner account ledger.

After the Division voluntarily sought dismissal of its

complaint, the Association filed a motion for attorney ' s fees on

January 15, 2016, cit ing to the Florida Equal Access to Justice

Act. The Association was recast as Petitioner and DOAH Case

No. 16 - 0344F was established.

At hearing, Petitioner offered the live testimony of

Ms. Diana Kuka, president of the Association , and Mr. Robert

Rubin, attorney for the Association . Over objection, excerpts

offered by Petitioner from the deposition testimony of Mr. Harry

Hague, Ms. Sirlei Silveira, Mr. Harold Hyman, and Ms. Constance

McCallum, all employees of Respondent, as well as excerpts from

the de position testimony of Mr. Alexander Boburka, unit owner and

complainant in the merits case, were admitted. Documentary

Exhibits P - 1 through P - 3 were also offered by Petitioner and

accepted into evidence without objection. Petitioner ' s Exhibit

P - 4, a comp osite exhibit containing e - mails from Petitioner ' s

counsel to Respondent and to Petitioner and copies of motions

filed in this case and in the merits case, was objected to by

Respondent on the ground that the exhibit had not been previously

identified, as was required by the O rder of Pre - h earing

Instructions. No prejudice to Respondent being found, Exhibit P - 4

was admitted.

Respondent offered the testimony of Mr. Hague, a lead

investigator at the Division, and Mr. Peter Dunbar, an attorney

accepted as an e xpert in reasonableness of attorney ' s fees and

condominium association law. Respondent also offered Exhibits R - 1

through R - 4, which were admitted without objection.

The Transcript was received on May 19, 2016. Both parties

timely submitted proposed final orders, which were considered in

the preparation of this Final Order.

FINDING S OF FACT

1. The Division is the entity of the State of Florida

empowered and required to ensure compliance with the Condominium

Act, chapter 718, Florida Statutes, and implemen ting

administrative rules.

2. The Boca View Condominium s complex comprises

72 residential condominiums in Boca Raton, Florida. The

Association operates Boca View Condominiums and is subject to the

Condominium Act. The Association is not under developer control,

but is controlled by the unit owners.

3. Hurricane Wilma hit Florida in October of 2005. At that

time, Mr. Alexander Boburka was a unit owner in Boca View

Condominiums.

4. Ms. Diana Kuka has lived in Boca View Condominiums since

1998 and was the president of the Association at the end of 2005.

She te stified that the Association is a non - profit business

incorporated by the State of Florida. This testimony was

supplemented by Department of State records showing the

Association as a not - f or - pro fit corporation whose principal place

of business is in Boca Raton. She testified the Association had

only two employees at the time of the Notice to Show Cause and a

net worth of less than two million dollars. Boca View

Condominium Association is a smal l business party.

5. Ms. Kuka testified that the first time she learned that

Mr. Boburka claimed that his unit had been damaged by H urricane

Wilma was on June 11, 2006, when Mr. Boburka sent an e - mail to

her, stating:

I am writing to ease my mind and ass ure

myself that the Association litigation

through the developer is responsible for the

faulty roof that allowed rain water from

Hurricane Wilma to enter my condo along pipes

(common areas/elements?) and caused damage to

both bathroom ceilings last year.

I do not have wind coverage and have not yet

repaired damage and do not plan to do so

until after this hurricane season ends.

Please confirm my understanding of the

situation as it occurred with other units

above and below me.

My condo insurance company said that my

standard policy does not cover the damage due

to the fact that the hurricane caused

damages.

Kindly respond at your convenience.

6. It is not clear if Ms. Kuka ever responded to

Mr. Boburka, but a few months later, he wrote two checks, eac h in

the amount of $1 , 000.00, to the order of Ricardo Salinas: one

dated September 12, 2006, and the other dated September 15, 2006.

The checks had the notation " repairs " written in the " For " space.

7. An e - mail from Mr. Boburka to Ms. Kuka dated August 2,

2007, referenced a conversation between them in Costco two weeks

previously and state d that Mr. Boburka was " in the process of

obtaining a breakdown of cost to repair damages in my unit

bathrooms and kitchen. " It stated that he had copies of checks

pa id to the contractor.

8. Ms. Kuka testified at hearing that the Association will

not issue a check to a unit owner without an invoice:

And we do not, we do not, absolutely not

issue a check unless we have a backup, unless

we have an invoice. Everybody ca n give us a

check. Everybody can say, I spent this or I

spent that. so I made it clear, because the

board wanted to have some backup, wanted to

have Î you know, if he can ' t provide proof of

damages but at least give us Î we wanted to,

you know, like give him the benefit of the

doubt, but at least give us some breakdown,

like an invoice that said, I repaired such

and such, and it cost such and such.

9. Notwithstanding Ms. Kuka ' s testimony that a check

would not be issued without an invoice, the Associati on did not

follow that policy with respect to Mr. Boburka in this case.

Mr. Boburka did not provide a breakdown to the Association. The

Association paid Mr. Boburka the amount of $1,961.34 by check

dated November 28, 2007.

10. Although the Association argued at hearing that the

payment to Mr. Boburka was " contingent " and subject to his later

providing proof regarding the amount and cause of his damages,

the evidence does not support this claim.

11. About five and one - half years later, a letter from t he

Association to Mr. Boburka , dated June 14, 2013, referenced an

attached copy of the reimbursement check given to him in 2007 and

requested him to " advise, as soon as possible, in detail, the

nature of this expense. " An almost identical letter, with the

addition of the words " Second Request, " and dated July 3, 2013 ,

was sent to Mr. Boburka . Mr. Boburka did not provide the

requested information.

12. An " expense adjustment " in the amount of $1,961.34 was

entered upon Mr. Boburka ' s account ledger from the Association,

dated May 2, 2014. A note indicated, " Charge back for monies

recd from association due to hurricane damages used for others

[sic] purposes. "

13. Mr. Boburka filed a complaint with the Division on

May 12, 2014. He alleged that the Associati on improperly applied

a charge of $1,961.34 to his account ledger. Case No. 2014020742

was opened and assigned to Ms. Sirlei Silveira, a financial

examiner in the Division ' s Bureau of Compliance.

14. In response to Division inquiries, counsel for the

As sociation e - mailed Ms. Silveira on Monday, July 28, 2014,

setting forth reasons that it was believed Mr. Boburka was not

entitled to the money that the Association gave him earlier,

alleging generally that the Association believed the original

claim by Mr. Boburka in 2006 was fraudulent.

15. A data entry was made on Ms. Silveira ' s case

file at the Division dated May 11 , 2015. It indicated " Closing

Order " and reflected a Code of " 368. " About a month later, a

notation was made in the case indicating " Mem orandum

Prepare/Revise/Review " dated June 16 , 2015.

16. On July 28, 2015, Mr. Boburka, through counsel, filed

a complaint with the Division alleging that the Association

failed to include him on the ballot for election to Association

office, despite prope r notice of his intent to be a candidate.

Mr. Boburka alleged that the reason he was not permitted to be a

candidate was that he had not paid the improper charge that had

been posted to his account earlier.

17. The Division opened C ase No. 2015033369 and assigned it

to Mr. Harry Hague, the lead investigator for the Miami and Fort

Lauderdale sections for the Bureau of Compliance.

18. An entry dated July 29 , 2015 , was made on

Ms. Silveira ' s case indicating " Case File Review. " An entry

dated August 19 , 2 015 , indicating " Case File Review " was also

made.

19. At some point Mr. Hague was directed to merge

Ms. Silveira ' s case into his own, because, as Mr. Hague

testified, " it was part and parcel " to his own case. Mr. Hague

testified that " [w]e wouldn ' t maint ain two active investigations

with a single issue. " An entry on September 2 , 2015 , indicates

" Case Reassigned " and the note " case reassigned to Hague for

combining with investigation 2015033369 and preparation of aa. "

After a few more data entries indica ting further reviews, an

entry dated October 19 , 2015 , on the earlier case indicates " Case

Closed Duplicate. "

20. Ms. Silveira ' s case was not closed on May 11, 2015,

based upon a determination by the Division that there was no

violation. Had that been do ne, the file would have reflected a

" UF " disposition code, indicating that the charge was determined

to be unfounded. Had the case actually been closed, the parties

would have been notified of that fact.

21. Contrary to the argument of the Association,

Ms. Silveira ' s case was not closed because it was determined to

be unfounded and then reopened by the Division as an act of

retribution against the Association in response to other election

concerns that had been the subject of an earlier complaint. The

evidence did not show that the Division acted in bad faith.

22. Mr. Hague prepared an investigative report dated

September 1, 2015. The report concluded that the Association

improperly posted a $1,961.34 charge to complainant Mr. Boburka ' s

account ledger and improperly failed to include Mr. Boburka ' s

name as an eligible candidate for the election of the

Association ' s directors, in violation of provisions of

chapter 718.

23. On October 2, 2015, the Division filed a Notice to Show

Cause against the Associ ation regarding the $1,961.34 charge to

Mr. Boburka ' s account ledger. The Notice to Show Cause provided

the Association with a clear point of entry to request

administrative proceedings, as it was required to do by law.

24. The Association filed a " petit ion " requesting an

administrative hearing on November 13, 2015.

25. A little over one month later, on December 17, 2015,

the Division filed a Motion to Dismiss the Petition and Cancel

Hearing in DOAH Case N o. 15 - 6768. The m otion was granted.

26. The Ass ociation was the prevailing small business party

in DOAH Case N o. 15 - 6768.

27. The Association incurred attorney ' s fees and costs in

defending against the Notice to Show Cause filed by the Division.

28. The Association submitted an affidavit describin g the

nature and extent of attorney services and the costs incurred.

Expert testimony by the Association ' s attorney provided

additional detail and generally supported the reasonableness of

the fees, except as further discussed below. The hourly rate of

$ 375 .00 was not contested by the Division ' s expert, and is found

to be reasonable and customary.

29. The Division presented the testimony of Mr. Peter

Dunbar, accepted by the Association as an expert in reasonable

and customary attorney ' s fees and in condo minium association law.

Mr. Dunbar ' s testimony as to reasonable and customary attorney ' s

fees was credited on several matters of dispute.

30. It would be reasonable and customary to bill only

.6 hour for the telephone call from attorney Thomas Morton and

computer communication to the client -- the entry on the invoice

dated October 19 , 20 15. On the entry dated November 9 , 2015, to

prepare and serve the response to the Administrative Complaint,

3.0 hours would be reasonable and customary, in addition to

.4 hour to correct a mistake in the Petition. It is accepted

that it was prudent for the Association to prepare a Motion to

Dismiss as indicated on the invoice entry dated December 7 , 20 15,

even though it seemed likely that Petitioner was going to dismiss

wi thout it, and in fact did so. However, Mr. Dunbar ' s contention

that 3.9 hours to prepare the Motion to Dismiss was unreasonable

is accepted. As Mr. Dunbar testified, the document substantially

duplicated the content of the Petition Involving Disputed Iss ues

of Material Fact that had been prepared earlier; no additional

research was required. One hour is reasonable and customary. On

the three entries dated December 9 , 2015 , related to preparation

and service of subpoenas, this is a task customarily condu cted by

an assistant or paralegal; attorney time of .1 hour would be

reasonable and customary to oversee this work. On the entry

dated December 16 , 20 15 , for an e - mail exchange with attorney

Robin Smith, .1 hour would be reasonable and customary. On the

three entries dated December 17 , 20 15 , to prepare and serve

routine Notices of Cancellation, .1 hour would be reasonable and

customary. Finally, a reasonable and customary time to prepare a

motion for prevailing party fees and affidavit from existing

info rmation, reflected in the January 4 , 20 16 , entry, would be

1.5 hours.

31. The Association showed that attorney ' s fees in the

amount of $13,050.00 were reasonable and customary, based upon

the adjusted total of 34.8 hours.

32. With respect to costs, the claimed amount of $174.00

for " Electronic Records Fee " was vague and non - specific; it was

not shown to be reasonable. The remaining costs, in the amount

of $320.00, were proven by the Association.

33 . As the parties stipulated, no special circumstances

exist that would make an award of fees and costs unjust.

34 . The action of the Division in filing the Notice to Show

Cause was substantially justified on the facts and the law.

CONCLUSIONS OF LAW

35 . The Division of Administrative Hearings has jurisdicti on

over the subject matter and the parties to this case pursuant to

sections 57.111(4), 120.569, and 120.57(1), Florida Statutes.

36 . Section 57.111, denominated the Florida Equal Access to

Justice Act (FEAJA) , was designed to offset expenses incurred by a

small business successfully defending against " unreasonable

governmental action " in an administrative proceeding. Dep ' t of

HRS v. S . Beach Pharmacy , 635 So. 2d 117, 118 n.1 (Fla. 1st DCA

1994).

37 . At the time of the Notice to Show Cause,

s ection 57 .111(4)(a) provided:

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 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.

Petitioner ' s Burden

38 . Initially, it is Petitioner ' s burden under the statute

to show that it was a small business and was the prevaili ng party.

Helmy v. Dep ' t of Bus. & Prof ' l Reg. , 707 So. 2d 366, 368 (Fla.

1st DCA 1998); Dep ' t of Prof ' l Reg. v. Toledo Realty, Inc. , 549

So. 2d 715, 717 (Fla. 1st DCA 1989).

39 . Section 57.111(3)(d)1.b. defined a " small business

party " to include a corp oration which had its principal office in

Florida and at the time action was initiated by a state agency had

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

than $2 million. Petitioner proved that it was a small business

party.

40 . The pa rties have stipulated that Petitioner is a

prevailing party. Section 57.111(3)(c)3. provides, in relevant

part, that a small business party is a " prevailing small business

party " when the state agency has sought a voluntary dismissal of

its complaint.

41 . Petitioner complied with the requirements of section

57.111(4)(b)1. by submitting an affidavit setting forth costs and

the nature and extent of services rendered by the attorneys.

Section 57.111(4)(b)2. provides: " The application for an award of

attorn ey ' s fees must be made within 60 days after the date that

the small business party becomes a prevailing small business

party. " S . Beach Pharmacy , 635 So. 2d at 121. Petitioner became

the prevailing small business party on December 17, 2015, and

Responden t ' s Motion for Prevailing Party Attorney ' s Fees and

Evidentiary Hearing to Determine Reasonable Attorney ' s Fees was

timely filed on January 15, 2016.

42 . Petitioner established a prima facie case of entitlement

to attorney ' s fees and costs as a prevailin g small business party.

Respondent ' s Burden

43 . Respondent may avoid an award of fees and costs if it

proves that special circumstances exist which would make an award

unjust or that its actions were " substantially justified " as that

term is defined in s e ction 57.111(3)(e). " It is the agency which

must affirmatively raise and prove the exception. " Helmy , supra .

As noted above, the parties stipulated that no special

circumstances existed here that would make an award of fees and

costs unjust.

44 . In o rder to prevail because its action was

" substantially justified, " Respondent must prove that it had " a

solid though not necessarily correct basis in fact and law for the

position that it took " in the action. Casa Febe Ret. Home, Inc.

v. A g. for H ealth C ar e A dmin. , 892 So. 2d 1103, 1106 (Fla. 2d DCA

2004); Fish v. Dep ' t of Health, Bd . of Dentistry , 825 So. 2d 421

(Fla. 4th DCA 2002).

45 . An agency ' s action is not " substantially justified "

simply because it is not frivolous; it must have a stronger

foundati on. Dep ' t of HRS v. S.G. , 613 So. 2d 1380, 1386 (Fla. 1st

DCA 1993). In Department of Insurance v. Florida Bankers '

Association , 764 So. 2d 660 (Fla. 1st DCA 2000), it was stated,

" [I]n terms of Florida law, the ' substantially justified ' standard

falls s omewhere between the no justiciable issue standard of

section 57.105, Florida Statutes (1991), and an automatic award of

fees to a prevailing party. "

46 . In determining whether there was substantial

justification for filing the Notice to Show Cause, the focus is

upon the information available to Respondent at the time the

complaint was filed. Fish , 825 So. 2d at 423; Toledo Realty ,

Inc. , 549 So. 2d at 716; Kibler v. Dep ' t of Prof ' l Reg. , 418 So.

2d 1081 (Fla. 4th DCA 1982).

47 . Respondent argues that at the time the action was filed,

it had an adequate basis for its action in both fact and law. As

for a basis in fact, Mr. Hague ' s report stated that the sum of

$1,961.34 had been charged to Mr . Boburka ' s unit owner account

ledger as a " charge back. " The Association had been contacted by

Mr. Hague and did not dispute this. No other unit owners were

similarly assessed. The Association asserted that it had

provided this amount to Mr. Boburka earlier as compensation for

claimed damage to common elements res ulting from Hurricane Wilma

several years before. Petitioner maintained that it had reason

to believe the original claim was fraudulent. Under those

circumstances, Petitioner argued that it was legally permitted to

post the " charge back. " Mr. Hague disc ussed Petitioner ' s

position in his report, without investigating the issue of

whether Mr. Boburka ' s original claim was in fact fraudulent,

concluding that , in the absence of a civil judgment, the " charge

back " was an illegal assessment prohibited under the provisions

of chapter 718. There are thus few material facts in dispute;

the controversy in the merits case was almost completely a

question of law.

Basis in Law

48 . It is unnecessary to determine the underlying issue in

the merits case as to wheth er a " charge back " by the Association

is in fact authorized under chapter 718 several years after a

claim was originally paid. 2/ The issue is instead whether the

Division had a reasonable basis in law under section 57.111 to

issue the Notice to Show Cause based upon the information that

was before it.

4 9 . FEAJA is modeled after the Equal Access to Justice Act

(EAJA) , 5 U.S.C. § 504. S.G. , supra (persuasive federal authority

in defining the scope of the statutory definition of

" substantially justified " in Federal EAJA should be followed).

50 . Federal courts have held that government action is

substantially justified when it is premised upon a plausible

interpretation of a statute on a question that has not previously

been decided. See, e.g. , Abramson v. U . S . , 45 Fed. Cl. 149, 152

(1999)( " Several circuits have adopted a presumptive rule that the

Government is substantially justified within the meaning of the

EAJA when a question is being addressed for the first time . " );

Marcus v. Shalala , 17 F.3d 1033, 103 7 (7th Cir. 1994)

( " uncertainty in the law arising from conflicting authority or the

novelty of the question weighs in the government ' s favor when

analyzing the reasonableness of the government ' s litigation

position " ); TKB Int ' l v. U.S. , 995 F.2d 1460, 146 8 (9th Cir.

1993)(government ' s interpretation of tax law supportable where

close question of law involved); Trahan v. Brady , 907 F.2d 1215,

1219 (D.C. Cir. 1990)(position substantially justified where

government applied plausible interpretation of statute in absence

of judicial interpretation). Even if Respondent ' s interpretation

of the statute should not ultimately be ratified by the courts,

this would not necessarily mean that its action was not

substantially justified. Pierce v. Underwood , 487 U.S. 552 , 569

(U.S. 1988)(government could take a position that is substantially

justified, yet lose in subsequent litigation).

51 . Petitioner offered testimony that " the question involved

is difficult. This is not an easy issue, and that ' s why we ' re

probably at trial, because it ' s not an easy issue to resolve. " 3/

52 . Either party ' s argument as to the authority of an

association seems plausible. Importantly, neither Petitioner nor

Respondent cite to any Florida cases or Division orders on the

issue of whether such a late " charge back " to a unit owner ' s

account is authorized under the statute, under circumstances

where the original claim was fraudulent or otherwise. The

question is unsettled.

53 . In his report, Mr. Hague concluded that chapter 718

prohibited the Association ' s " charge back " of $1,961.34 to

Mr. Boburka ' s unit owner account ledger. That report may be

considered in determining substantial justification. Cf . Toledo

Realty, Inc. , 549 So. 2d at 719 (section 455.225 , Florida

Statutes, procedures sug gest an investigative report may be the

most substantial and relevant evidence necessary in deciding

probable cause). Respondent was entitled to evaluate Mr. Hague ' s

position and proceed to proposed agency action based upon his

expertise and credibility. Gentele v. Dep ' t of Prof ' l Reg . , Bd.

of Optometry , 513 So. 2d 672, 673 (Fla. 1st DCA 1987).

54 . Under all of the circumstances, the Division was

justified in accepting the facts and conclusions set forth in

Mr. Hague ' s report and concluding that use of t he " charge back "

procedure violated the provisions of chapter 718 .

55 . The Division had before it adequate information to

provide a reasonable basis in both law and fact for the

allegations in the Notice to Show Cause. Fish , 825 So. 2d

at 423 (some evide nce considered must reasonably indicate

violation, but need not be so compelling as the evidence required

at hearing).

56 . While Respondent ultimately decided to dismiss its

action, the basis of that decision is not relevant here. It is

well settled that in determining whether an agency ' s action was

substantially justified, only the information available at the

time the action was initiated should be considered. Ag. f or

Health Care Admin. v. MVP Health, Inc. , 74 So. 3d 1141, 1144 (Fla.

1st DCA 2011).

57 . Respondent proved that its actions in filing the Notice

to Show Cause were substantially justified.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

The petition for attorney ' s fees filed pursuant to

s ection 57.1 11, Florida Statutes, is DISMISSED.

DONE AND ORDERED this 14th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of June , 2016 .

ENDNOTE S

1/ All references to statutes and r ules are to the versions in

effect in 2015, at the time that the Notice to Show Cause was

filed, except as otherwise indicated.

2/ The United States Supreme Court has noted the danger in

addressing previously undecided substantive legal questions

arisin g from the merits case in an attorney ' s fees award case

where the law remains unsettled at the time of the EAJA appeal.

" [A] ruling that the Government was not substantially justified in

believing it to be thus - and - so would (unless there is some reason

to think it has changed since) effectively establish the circuit

law in a most peculiar, secondhanded fashion. " Pierce v.

Underwood , 108 S. Ct. 2541, 2548 (U.S. 1988).

3/ Petitioner properly offered testimony as to the " novelty and

difficulty " of the case as a factor that should be considered in

determining a reasonable fee amount, but the novelty and

difficulty of a case is also relevant to the determination of

whether the Division was substantially justified, as discussed.

COPIES FURNISHED:

Robert I. Rubin, Esquire

Becker & Poliakoff, P.A.

Seventh Floor

625 North Flagler Drive

West Palm Beach, Florida 33401

(eServed)

Robin E. Smith, Esquire

Ryan N. Lumbreras, Esquire

Andrew Rubin Fier, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32309

(eServed)

Kevin Stanfield, D irector

Division of Florida Condominiums,

Timeshares and Mobile Homes

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affec ted 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 administrati ve appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal i n the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.