08-000143F
Michael Anthony Dipple vs.
Pinellas County Construction Licensing Board
Status: Closed
DOAH Final Order on Monday, April 14, 2008.
DOAH Final Order on Monday, April 14, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MICHAEL ANTHONY DIPPLE, )
12)
13Petitioner, )
15)
16vs. ) Case No. 08-0143F
21)
22PINELLAS COUNTY CONSTRUCTION )
26LICENSING BOARD, )
29)
30Respondent. )
32)
33FINAL ORDER
35A final hearing in this matter was held on March 5, 2008,
47in Largo, Florida, before Lawrence P. Stevenson, a duly-
56designated Administrative Law Judge of the Division of
64Administrative Hearings.
66APPEARANCES
67For Petitioner: Brett Wadsworth, Esquire
72Brett Wadsworth, LC
75Post Office Box 270118
79Tampa, Florida 33688
82For Respondent: Jason Ester, Esquire
87Pinellas County Attorney Office
91315 Court Street
94Clearwater, Florida 33756-5165
97STATEMENT OF THE ISSUE
101The issue is whether Petitioner, Michael Anthony Dipple, is
110entitled to an award of attorney's fees against Respondent,
119Pinellas County Construction Licensing Board, pursuant to
126Section 57.111, Florida Statutes (2007). 1
132PRELIMINARY STATEMENT
134On January 3, 2008, Petitioner, Michael Anthony Dipple,
142filed a Motion to Tax Attorney's Fees and Costs (the "Motion").
154Pursuant to the Initial Order, Respondent filed a Response to
164Petitioner's Motion to Tax Attorney's Fees and Costs and
173Memorandum of Law on January 24, 2008 (the "Response"). In its
185Response, Respondent admitted that Petitioner was the prevailing
193party 2 in the underlying action, DOAH Case No. 07-3664, and that
205Respondent was not a nominal party in the underlying action.
215Respondent disputes the requested reimbursement of attorney's
222fees and costs because its actions in bringing the underlying
232action were substantially justified. In its Response,
239Respondent requested an evidentiary hearing. Petitioner's
245Request for an Administrative Hearing was filed on February 6,
2552008.
256The parties filed a Pre-Hearing Stipulation on March 3,
2652008. The parties agreed that the issues remaining for hearing
275consisted of legal argument surrounding the question of whether
284Respondent's actions were substantially justified, and that no
292witnesses would be called at the hearing.
299FINDINGS OF FACT
3021. On January 3, 2008, Petitioner filed the Motion,
311seeking attorney's fees and costs as the prevailing party in
321DOAH Case No. 07-3664. On November 5, 2007, Respondent filed
331its Notice of Voluntary Dismissal of DOAH Case No. 07-3664, and
342the file of the Division of Administrative Hearings was closed
352by an Order entered on November 6, 2007.
3602. Respondent concedes that Petitioner is a prevailing
368small business party in the underlying proceeding, pursuant to
377Section 57.111, Florida Statutes.
3813. In the underlying proceeding, Respondent received a
389complaint from Joseph Lassen on January 26, 2007. Mr. Lassen
399stated that Mr. Dipple claimed to have run out of money and was
412therefore unable to complete the room addition he had contracted
422to perform on Mr. Lassen's house. Mr. Lassen stated that he
433feared Mr. Dipple was moving out of state and never had any
445intention of completing the work.
4504. With his complaint, Mr. Lassen included a copy of the
461contract, dated May 22, 2006, in which Mr. Dipple undertook to
472build the new room addition for the price of $76,350. The
484contract called for an initial deposit of $28,000, followed by
495three draws of $22,000, $17,000, and $10,000, to be paid as
509different phases of the work were undertaken. Mr. Lassen also
519included three canceled checks: one dated May 22, 2006, in the
530amount of $28,000; one dated August 8, 2006, in the amount of
543$22,000; and one dated September 25, 2006, in the amount of
555$18,000.
5575. In a letter dated March 2, 2007, signed by investigator
568Connie Garriques-Sang and sent to Mr. Dipple's business address
577in Largo, Respondent informed Mr. Dipple of the complaint. The
587letter stated, in relevant part:
592The enclosed complaint has been filed
598against you. If you wish to resolve this
606matter before the Pinellas County
611Construction Licensing Board takes further
616action, you may do so. Upon resolution, you
624should notify our office so that we may
632update your file on this matter. Please use
640the attached form in response to the
647complaint and return it to my office within
655ten (10) working days. (Emphasis added.)
6616. Respondent's probable cause panel convened on March 22,
6702007. At that time, no response from Mr. Dipple had been
681received by Respondent. The probable cause panel considered
689Mr. Lassen's complaint and the attachments thereto. The panel
698also considered information obtained by Ms. Garriques-Sang from
706the City of Largo's building inspector indicating there were
715code violations regarding electrical work that were holding up
724the final inspection. Based on the information before it, the
734panel found probable cause to proceed with disciplinary action
743against Mr. Dipple.
7467. Mr. Dipple's response to Ms. Garriques-Sang's letter
754was received by Respondent on March 23, 2007, the day after the
766probable cause panel met and voted to proceed with an
776Administrative Complaint against Mr. Dipple. The delay in
784Mr. Dipple's response was due in part to the fact that he had
797moved to Oklahoma and the letter had to be forwarded to his new
810address. Nonetheless, he dated his response March 13, 2007,
819indicating that he must have received Ms. Garriques-Sang's
827letter on or before that date. However, the postmark on the
838envelope containing Mr. Dipple's response indicates that he
846waited an additional week, until March 20, 2007, to actually
856mail the response.
8598. Mr. Dipple's response included a letter from his
868attorney to Mr. Lassen and a copy of a phone message 3 that
881Mr. Lassen left at Mr. Dipple's place of business stating that
892Mr. Lassen wanted another company to finish the work.
901Mr. Dipple generally contended that Mr. Lassen thwarted his
910attempts to complete the job.
9159. Respondent issued an Administrative Complaint, dated
922March 30, 2007, alleging the following facts: Mr. Dipple
931contracted with Mr. Lassen on February 22, 2006, to build a room
943addition at Mr. Lassen's Largo home; that Mr. Dipple obtained a
954permit for the work on June 23, 2006; that the permit was
966active, but work was not complete and there were outstanding
976tags for code deficiencies; that Mr. Dipple had changed his
986business address and had not performed any work on Mr. Lassen's
997house for over 90 days; that Mr. Dipple had informed Mr. Lassen
1009that he did not have enough money to finish the job; and that
1022Mr. Lassen was forced to hire another contractor to finish the
1033job, at additional expense.
103710. The Administrative Complaint had three counts. Count
1045One alleged that Mr. Dipple abandoned the job in violation of
1056Subsection 489.129(1)(j), Florida Statutes, and Section
106224(2)(k), Chapter 75-489, Laws of Florida, as amended. Count
1071Two alleged that Mr. Dipple committed financial mismanagement or
1080misconduct in the practice of contracting that caused financial
1089harm to a customer in violation of Subsections 489.126(2) and
1099(4), Florida Statutes, Subsection 489.129(1)(g), Florida
1105Statutes, and Section 24(2)(h), Chapter 75-489, Laws of Florida,
1114as amended. Count Three alleged that Mr. Dipple committed fraud
1124or deceit or gross negligence, incompetency, or misconduct in
1133the practice of contracting in violation of Subsection
1141489.129(1)(m), Florida Statutes, and Section 24(2)(m), Chapter
114875-489, Laws of Florida, as amended.
115411. The case was referred to the Division of
1163Administrative Hearings on August 16, 2007, and assigned DOAH
1172Case No. 07-3664. With the Administrative Complaint, Respondent
1180forwarded Mr. Dipple's Motion to Dismiss and Statement of Facts,
1190originally served on Respondent on August 9, 2007. Mr. Dipple
1200denied the allegations of the Administrative Complaint, stating
1208that Mr. Lassen had interfered with the contract by refusing to
1219allow Mr. Dipple to work on scheduled days; that Mr. Lassen
1230wrongfully terminated the contract before the work was completed
1239and refused to allow Mr. Dipple to complete the work; that
1250Mr. Lassen owed money to Mr. Dipple; and that all portions of
1262the work performed by Mr. Dipple had passed all building
1272inspections. Mr. Dipple moved that the charges be dismissed on
1282the ground that the alleged facts did not support any of the
1294three counts stated in the Administrative Complaint.
130112. With the Administrative Complaint, Respondent also
1308forwarded Mr. Dipple's notice to Respondent of his intent to
1318recover attorney's fees and costs, originally served on
1326Respondent on July 20, 2007.
133113. DOAH Case No. 07-3664 was scheduled for hearing on
1341September 24, 2007, in Largo, Florida. On Mr. Dipple's motion,
1351the hearing was continued and rescheduled for November 27, 2007.
136114. On November 5, 2007, Respondent filed its Notice of
1371Voluntary Dismissal of the Administrative Complaint. The
1378Division of Administrative Hearings' file in DOAH Case No. 07-
13883663 was closed by Order dated November 6, 2007.
139715. Mr. Dipple's contends that the probable cause panel
1406lacked other available information that could have and in fact
1416did subsequently exonerate him of the charges, 4 and that
1426Respondent violated its own rules, Chapters 455 and 489, Florida
1436Statutes, and fundamental principles of due process in
1444precipitously arriving at a probable cause determination before
1452Mr. Dipple had a fair opportunity to respond to the March 2,
14642007, letter from Ms. Garriques-Sang.
146916. It is found that the information before the probable
1479cause panel was sufficient to support the panel's decision to
1489pursue an Administrative Complaint against Mr. Dipple, in the
1498absence of any contrary information.
150317. The evidence submitted in Mr. Dipple's March 23, 2007,
1513response to Mr. Lassen's allegations provided an insufficient
1521basis for a finding that the response would have altered the
1532probable cause panel's decision. While it does appear that
1541Mr. Dipple submitted evidence that Mr. Lassen had instructed him
1551to stop work, such evidence did not necessarily refute
1560Mr. Lassen's allegations that Mr. Dipple's actions had forced
1569him to seek another contractor to complete the job.
157818. Mr. Lassen also alleged something approaching fraud
1586against Mr. Dipple, stating that he feared Mr. Dipple was
1596planning to move away from Largo and never intended to complete
1607the work. Mr. Dipple's response did not directly address this
1617allegation. Further, even if the probable cause panel had
1626timely received Mr. Dipple's response, the fact that the
1635response was mailed from Mr. Dipple's new residence in Oklahoma
1645would, if anything, have provided circumstantial support to
1653Mr. Lassen's allegations.
1656CONCLUSIONS OF LAW
165919. The Division of Administrative Hearings has
1666jurisdiction over the parties to and the subject matter of this
1677proceeding pursuant to Sections 120.569, and Subsections
1684120.57(1), and 57.111(4), Florida Statutes.
168920. Section 57.111, Florida Statutes, the Florida Equal
1697Access to Justice Act, provides, in pertinent part, as follows:
1707(4)(a) Unless otherwise provided by law, an
1714award of attorney's fees and costs shall be
1722made to a prevailing small business party in
1730any adjudicatory proceeding or
1734administrative proceeding pursuant to
1738chapter 120 initiated by a state agency,
1745unless the actions of the agency were
1752substantially justified or special
1756circumstances exist which would make the
1762award unjust.
176421. In proceedings to establish entitlement to an award of
1774attorney's fees and costs pursuant to Section 57.111, Florida
1783Statutes, the initial burden of proof is on the party requesting
1794the award to establish by a preponderance of the evidence that
1805it prevailed in the underlying disciplinary action and that it
1815was a small business party at the time the disciplinary action
1826was initiated. Once the party requesting the award has met this
1837burden, the burden of proof shifts to the agency to establish
1848that it was substantially justified in initiating the
1856disciplinary action. See Helmy v. Department of Business and
1865Professional Regulation , 707 So. 2d 366, 368 (Fla. 1st DCA
18751998); Department of Professional Regulation, Division of Real
1883Estate v. Toledo Realty, Inc. and Ramiro Alfert , 549 So. 2d 715,
1895717 (Fla. 1st DCA 1989).
190022. Petitioner, Michael Anthony Dipple, prevailed in the
1908underlying proceeding. § 57.111(3)(c)3., Fla. Stat.
191423. Mr. Dipple is a "small business party" as contemplated
1924by Subsection 57.111(3)(d), Florida Statutes.
192924. The sole issue in this proceeding is whether
1938Respondent's actions were "substantially justified." Subsection
194457.111(3)(e), Florida Statutes, provides that a proceeding is
"1952substantially justified" if it had a "reasonable basis in law
1962and fact at the time it was initiated by a state agency ."
1975(Emphasis added.) The "substantially justified" standard falls
1982somewhere between the "no justiciable issue" standard of Section
199157.105, Florida Statutes, and an automatic award of fees to a
2002prevailing party. Helmy , 707 So. 2d at 368.
201025. In Department of Health v. Cralle , 852 So. 2d 930, 932
2022(Fla. 1st DCA 2003), the court set forth the following temporal
2033limitation on the required analysis, quoting from Fish v.
2042Department of Health , 825 So. 2d 421, 423 (Fla. 4th DCA 2002):
2054In resolving whether there was substantial
2060justification or a reasonable basis in law
2067and fact for filing an administrative
2073complaint, "one need only examine the
2079information before the probable cause panel
2085at the time it found probable cause and
2093directed the filing of an administrative
2099complaint."
2100See also Agency for Health Care Administration v. Gonzalez , 657
2110So. 2d 56 (Fla. 1st DCA 1995)(proper inquiry is whether evidence
2121before probable cause panel was sufficient for institution of
2130disciplinary action).
213226. In Fish , the Department of Health commenced an
2141investigation against Dr. Fish pursuant to a complaint filed by
2151a fellow dentist. After the investigation was completed, the
2160Department forwarded the investigative file to the probable
2168cause panel. Dr. Fish had disputed the allegations and filed a
2179timely written response, but the Department chose not to forward
2189his response to the probable cause panel. 825 So. 2d at 422.
2201The panel found probable cause and forwarded the matter to the
2212Division of Administrative Hearings. The Department
2218subsequently dismissed the case, and Dr. Fish petitioned for
2227attorney's fees pursuant to Section 57.111, Florida Statutes.
223527. One of the grounds asserted by Dr. Fish was that the
2247Department denied him due process by failing to forward his
2257response to the probable cause panel. In affirming the
2266Administrative Law Judge's conclusion that the Department was
2274substantially justified in proceeding against Dr. Fish, the
2282court reasoned as follows:
2286Notwithstanding the existence of a
2291procedural due process error due to the
2298Probable Cause Panel's failure to review
2304appellant's timely response, we nevertheless
2309conclude that there existed competent
2314substantial evidence to support the ALJ's
2320finding of substantial justification.
2324Although the charges brought against
2329appellant were subsequently withdrawn and
2334the DOAH action dismissed, a review of the
2342record and investigative file reveals that
2348the Department was substantially justified
2353at the time it initiated its disciplinary
2360action. The DOAH action against appellant
2366was dismissed, not because of any procedural
2373irregularity, as espoused by appellant, but
2379because two of the Department's key
2385witnesses died and one witness had a
2392disciplinary history with the Florida Bar.
2398Thus, the Department strategically decided
2403to forego any further prosecution against
2409appellant.
2410The record supports the conclusion that the
2417Probable Cause Panel had the complete
2423investigative file before it prior to its
2430consideration of appellant's case. And,
2435while the Probable Cause Panel should have
2442considered appellant's response prior to its
2448determination to proceed with an
2453administrative complaint, there is no
2458evidence to conclude that the Probable Cause
2465Panel would have reached a different result
2472had it considered his response. Appellant's
2478response to the investigative file disputed
2484the allegations against him, but did not
2491disprove or conclusively rebut those
2496allegations. In fact, appellant's response
2501highlighted the fact that there were
2507disputed issues of fact as to the charges
2515against him.
2517Id. at 423.
252028. In Fish as in the instant case, the information before
2531the probable cause panel substantially justified the panel's
2539determination, and the question was whether the panel's decision
2548was skewed because it did not have all of the relevant
2559information before it. The Fish court found that the agency's
2569failure to place the petitioner's response to the allegations
2578before the probable cause panel constituted a procedural due
2587process error. However, the court went on to hold that such a
2599procedural error was insufficient to overturn the finding that
2608the agency's actions were substantially justified, unless that
2616procedural error compromised the accuracy and integrity of the
2625probable cause process.
262829. In the instant case, it is questionable whether there
2638was a due process error at all. The due process error in Fish
2651consisted of the Department's conscious decision to withhold
2659Dr. Fish's response from the probable cause panel. In the
2669instant case, Respondent did not yet have Mr. Dipple's response
2679at the time the matter was submitted to the probable cause
2690panel. In any event, the record evidence was insufficient to
2700establish that Mr. Dipple's response would have changed the
2709result reached by the probable cause panel. The record evidence
2719also failed to establish any necessary connection between
2727Mr. Dipple's late-filed response and the agency's ultimate
2735decision to dismiss the Administrative Complaint. Thus, any
2743procedural error committed by Respondent in failing to provide
2752Mr. Dipple with adequate time to respond to Ms. Garriques-Sang's
2762initial letter was insufficient to change the finding that the
2772probable cause panel's decision to move forward with an
2781Administrative Complaint was substantially justified at the time
2789it was made.
279230. Mr. Dipple pointed to no Pinellas County Construction
2801Licensing Board rule requiring that a licensee be allowed to
2811respond to a complaint before probable cause may be found to
2822proceed with an Administrative Complaint against that licensee.
283031. Mr. Dipple contends that because he is a state
2840licensed contractor, and because some of the counts of the
2850Administrative Complaint alleged violations of Chapter 489,
2857Florida Statutes, the procedural provisions of Chapters 455 and
2866489, Florida Statutes, are applicable to Respondent's probable
2874cause process.
287632. Mr. Dipple points to Subsection 455.225(1)(b), Florida
2884Statutes, which provides:
2887When an investigation of any subject is
2894undertaken, the [Department of Business and
2900Professional Regulation] shall promptly
2904furnish to the subject or the subject's
2911attorney a copy of the complaint or document
2919that resulted in the initiation of the
2926investigation. The subject may submit a
2932written response to the information
2937contained in such complaint or document
2943within 20 days after service to the subject
2951of the complaint or document. The subject's
2958written response shall be considered by the
2965probable cause panel. The right to respond
2972does not prohibit the issuance of a summary
2980emergency order if necessary to protect the
2987public. However, if the secretary, or the
2994secretary's designee, and the chair of the
3001respective board or the chair of its
3008probable cause panel agree in writing that
3015such notification would be detrimental to
3021the investigation, the department may
3026withhold notification. The department may
3031conduct an investigation without
3035notification to any subject if the act under
3043investigation is a criminal offense.
3048(Emphasis added.)
305033. Mr. Dipple contends that the underscored language
3058required Respondent to give him 20 days, not "10 working days,"
3069in which to respond to Mr. Lassen's complaint. He also contends
3080that the underscored language required the probable cause panel
3089to consider his response.
309334. However, Mr. Dipple neglects to note that Section
3102455.017, Florida Statutes, provides: "The provisions of this
3110chapter apply only to the regulation by the department of
3120professions." Section 455.225, Florida Statutes, is therefore
3127inapplicable to Respondent, a local government entity
3134responsible for disciplinary enforcement of construction
3140licensing requirements in Pinellas County, Florida. Ch. 75-489,
3148III, div. 2, Pinellas County Code.
315435. In summary, Mr. Dipple was the prevailing small
3163business party in the underlying proceeding. However,
3170Respondent established that its actions were substantially
3177justified, in that it had a reasonable basis in law and fact at
3190the time probable cause was found.
3196ORDER
3197Based on the foregoing Findings of Fact and Conclusions of
3207Law, it is
3210ORDERED that Michael Anthony Dipple's Motion to Tax for
3219Attorney's Fees and Costs is denied.
3225DONE AND ORDERED this 14th day of April, 2008, in
3235Tallahassee, Leon County, Florida.
3239S
3240LAWRENCE P. STEVENSON
3243Administrative Law Judge
3246Division of Administrative Hearings
3250The DeSoto Building
32531230 Apalachee Parkway
3256Tallahassee, Florida 32399-3060
3259(850) 488-9675 SUNCOM 278-9675
3263Fax Filing (850) 921-6847
3267www.doah.state.fl.us
3268Filed with the Clerk of the
3274Division of Administrative Hearings
3278this 14th day of April, 2008.
3284ENDNOTES
32851/ All references are to Florida Statutes (2007), unless
3294otherwise noted.
32962/ Respondent initially disputed that Petitioner was a small
3305business party, but later stipulated that Respondent is a
3314prevailing small business party.
33183/ The record in the instant case includes Mr. Dipple's response
3329but not the attachments thereto. It unclear from the text of
3340Mr. Dipple's response whether Mr. Dipple provided Respondent
3348with a copy of his answering machine tape or with a written
3360transcription of Mr. Lassen's call.
33654/ It must be noted that Respondent took no express position on
3377its reasons for dismissing the prosecution. The Notice of
3386Voluntary Dismissal stated simply that Respondent was
3393voluntarily dismissing the matter, "without prejudice."
3399COPIES FURNISHED :
3402Jason Ester, Esquire
3405Pinellas County Attorney Office
3409315 Court Street
3412Clearwater, Florida 33756-5165
3415Brett Wadsworth, Esquire
3418Brett Wadsworth, LC
3421Post Office Box 270118
3425Tampa, Florida 33688
3428Rodney S. Fischer, Executive Director
3433Pinellas County Construction Licensing Board
343811701 Belcher Road, Suite 102
3443Largo, Florida 33773-5116
3446NOTICE OF RIGHT TO JUDICIAL REVIEW
3452A party who is adversely affected by this Final Order is
3463entitled to judicial review pursuant to Section 120.68, Florida
3472Statutes. Review proceedings are governed by the Florida Rules
3481of Appellate Procedure. Such proceedings are commenced by
3489filing the original notice of appeal with the Clerk of the
3500Division of Administrative Hearings and a copy, accompanied by
3509filing fees prescribed by law, with the District Court of
3519Appeal, First District, or with the District Court of Appeal in
3530the Appellate District where the party resides. The notice of
3540appeal must be filed within 30 days of rendition of the order to
3553be reviewed.
- Date
- Proceedings
- PDF:
- Date: 03/05/2008
- Proceedings: Michael Anthony Dipple`s Memorandum in Support of Motion to Tax Attorney`s Fees and Costs filed.
- Date: 03/05/2008
- Proceedings: CASE STATUS: Hearing Held.
- Date: 03/04/2008
- Proceedings: Exhibit A of Pre-hearing Stipulation (exhibit not available for viewing) filed.
- PDF:
- Date: 02/26/2008
- Proceedings: Notice of Hearing (hearing set for March 5, 2008; 10:00 a.m.; Largo, FL).
- PDF:
- Date: 02/25/2008
- Proceedings: Letter to R. Williams from J. Ester enclosing available dates and location for hearing filed.
- PDF:
- Date: 02/07/2008
- Proceedings: Michael Anthony Dipple`s and Michael`s Complete Remodeling, Inc.`s Request for an Administrative Hearing and Motion to Supplement the Fees Incurred by Mr. Dipple in this Matter filed.
- PDF:
- Date: 01/24/2008
- Proceedings: Respondent`s Response to Petitioner`s Motion to Tax Attorney`s Fees and Costs filed.
Case Information
- Judge:
- LAWRENCE P. STEVENSON
- Date Filed:
- 01/03/2008
- Date Assignment:
- 01/07/2008
- Last Docket Entry:
- 04/14/2008
- Location:
- Largo, Florida
- District:
- Middle
- Agency:
- Self-contained Agencies
- Suffix:
- F
Counsels
-
Jason Ester, Esquire
Address of Record -
Brett Wadsworth, Esquire
Address of Record