Should Appellee Have Been Awarded Attorney's Fee Under FEAJA When He Was Not a Small Business Party ?

In Florida Real Estate Commission v. Shealy, 647 So. 2d 151 (Fla. 1st DCA 1994), the First District Court of Appeal reversed an attorney's fees award made under the Florida Equal Access to Justice Act (FEAJA), finding that Shealy was not a small business party as required by the statute. 647 So. 2d at 151. The Florida Real Estate Commission denied Shealy's application for a real estate license, which he needed in order to work for a corporation wholly owned by him and his wife. Shealy prevailed in an administrative proceeding, obtained the license, and sought attorney's fees from the Commission under FEAJA. In reversing the attorney's fees award, the First District said: 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. See 57.111(3)(d)1.a and b, Fla.Stat. This does not encompass individual employees. Department of Professional Regulation v. Toledo Realty, 549 So. 2d 715 (Fla. 1st DCA 1989); Thompson v. Department of Health and Rehabilitative Services, 533 So. 2d 840 (Fla. 1st DCA 1988). 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. The appellee was not a small business party as defined by the statute, and he thus should not have been awarded a section 57.111 attorney's fee. Id. at 152.