08-000143F Michael Anthony Dipple vs. Pinellas County Construction Licensing Board Status: Closed DOAH Final Order on Monday, April 14, 2008.

Summary: Petitioner established that he was a prevailing small business party, but Respondent also showed that its probable cause finding was substantially justified despite its subsequent dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL ANTHONY DIPPLE, )

)

Petitioner, )

)

vs. ) Case No. 08-0143F

)

PINELLAS COUNTY CONSTRUCTION )

LICENSING BOARD, )

)

Respondent. )

)

FINAL ORDER

A final hearing in this matter was held on March 5, 2008,

in Largo, Florida, before Lawrence P. Stevenson, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Brett Wadsworth, Esquire

Brett Wadsworth, LC

Post Office Box 270118

Tampa, Florida 33688

For Respondent: Jason Ester, Esquire

Pinellas County Attorney Office

315 Court Street

Clearwater, Florida 33756-5165

STATEMENT OF THE ISSUE

The issue is whether Petitioner, Michael Anthony Dipple, is

entitled to an award of attorney's fees against Respondent,

Pinellas County Construction Licensing Board, pursuant to

Section 57.111, Florida Statutes (2007). 1

PRELIMINARY STATEMENT

On January 3, 2008, Petitioner, Michael Anthony Dipple,

filed a Motion to Tax Attorney's Fees and Costs (the "Motion").

Pursuant to the Initial Order, Respondent filed a Response to

Petitioner's Motion to Tax Attorney's Fees and Costs and

Memorandum of Law on January 24, 2008 (the "Response"). In its

Response, Respondent admitted that Petitioner was the prevailing

party 2 in the underlying action, DOAH Case No. 07-3664, and that

Respondent was not a nominal party in the underlying action.

Respondent disputes the requested reimbursement of attorney's

fees and costs because its actions in bringing the underlying

action were substantially justified. In its Response,

Respondent requested an evidentiary hearing. Petitioner's

Request for an Administrative Hearing was filed on February 6,

2008.

The parties filed a Pre-Hearing Stipulation on March 3,

2008. The parties agreed that the issues remaining for hearing

consisted of legal argument surrounding the question of whether

Respondent's actions were substantially justified, and that no

witnesses would be called at the hearing.

FINDINGS OF FACT

1. On January 3, 2008, Petitioner filed the Motion,

seeking attorney's fees and costs as the prevailing party in

DOAH Case No. 07-3664. On November 5, 2007, Respondent filed

its Notice of Voluntary Dismissal of DOAH Case No. 07-3664, and

the file of the Division of Administrative Hearings was closed

by an Order entered on November 6, 2007.

2. Respondent concedes that Petitioner is a prevailing

small business party in the underlying proceeding, pursuant to

Section 57.111, Florida Statutes.

3. In the underlying proceeding, Respondent received a

complaint from Joseph Lassen on January 26, 2007. Mr. Lassen

stated that Mr. Dipple claimed to have run out of money and was

therefore unable to complete the room addition he had contracted

to perform on Mr. Lassen's house. Mr. Lassen stated that he

feared Mr. Dipple was moving out of state and never had any

intention of completing the work.

4. With his complaint, Mr. Lassen included a copy of the

contract, dated May 22, 2006, in which Mr. Dipple undertook to

build the new room addition for the price of $76,350. The

contract called for an initial deposit of $28,000, followed by

three draws of $22,000, $17,000, and $10,000, to be paid as

different phases of the work were undertaken. Mr. Lassen also

included three canceled checks: one dated May 22, 2006, in the

amount of $28,000; one dated August 8, 2006, in the amount of

$22,000; and one dated September 25, 2006, in the amount of

$18,000.

5. In a letter dated March 2, 2007, signed by investigator

Connie Garriques-Sang and sent to Mr. Dipple's business address

in Largo, Respondent informed Mr. Dipple of the complaint. The

letter stated, in relevant part:

The enclosed complaint has been filed

against you. If you wish to resolve this

matter before the Pinellas County

Construction Licensing Board takes further

action, you may do so. Upon resolution, you

should notify our office so that we may

update your file on this matter. Please use

the attached form in response to the

complaint and return it to my office within

ten (10) working days. (Emphasis added.)

6. Respondent's probable cause panel convened on March 22,

2007. At that time, no response from Mr. Dipple had been

received by Respondent. The probable cause panel considered

Mr. Lassen's complaint and the attachments thereto. The panel

also considered information obtained by Ms. Garriques-Sang from

the City of Largo's building inspector indicating there were

code violations regarding electrical work that were holding up

the final inspection. Based on the information before it, the

panel found probable cause to proceed with disciplinary action

against Mr. Dipple.

7. Mr. Dipple's response to Ms. Garriques-Sang's letter

was received by Respondent on March 23, 2007, the day after the

probable cause panel met and voted to proceed with an

Administrative Complaint against Mr. Dipple. The delay in

Mr. Dipple's response was due in part to the fact that he had

moved to Oklahoma and the letter had to be forwarded to his new

address. Nonetheless, he dated his response March 13, 2007,

indicating that he must have received Ms. Garriques-Sang's

letter on or before that date. However, the postmark on the

envelope containing Mr. Dipple's response indicates that he

waited an additional week, until March 20, 2007, to actually

mail the response.

8. Mr. Dipple's response included a letter from his

attorney to Mr. Lassen and a copy of a phone message 3 that

Mr. Lassen left at Mr. Dipple's place of business stating that

Mr. Lassen wanted another company to finish the work.

Mr. Dipple generally contended that Mr. Lassen thwarted his

attempts to complete the job.

9. Respondent issued an Administrative Complaint, dated

March 30, 2007, alleging the following facts: Mr. Dipple

contracted with Mr. Lassen on February 22, 2006, to build a room

addition at Mr. Lassen's Largo home; that Mr. Dipple obtained a

permit for the work on June 23, 2006; that the permit was

active, but work was not complete and there were outstanding

tags for code deficiencies; that Mr. Dipple had changed his

business address and had not performed any work on Mr. Lassen's

house for over 90 days; that Mr. Dipple had informed Mr. Lassen

that he did not have enough money to finish the job; and that

Mr. Lassen was forced to hire another contractor to finish the

job, at additional expense.

10. The Administrative Complaint had three counts. Count

One alleged that Mr. Dipple abandoned the job in violation of

Subsection 489.129(1)(j), Florida Statutes, and Section

24(2)(k), Chapter 75-489, Laws of Florida, as amended. Count

Two alleged that Mr. Dipple committed financial mismanagement or

misconduct in the practice of contracting that caused financial

harm to a customer in violation of Subsections 489.126(2) and

(4), Florida Statutes, Subsection 489.129(1)(g), Florida

Statutes, and Section 24(2)(h), Chapter 75-489, Laws of Florida,

as amended. Count Three alleged that Mr. Dipple committed fraud

or deceit or gross negligence, incompetency, or misconduct in

the practice of contracting in violation of Subsection

489.129(1)(m), Florida Statutes, and Section 24(2)(m), Chapter

75-489, Laws of Florida, as amended.

11. The case was referred to the Division of

Administrative Hearings on August 16, 2007, and assigned DOAH

Case No. 07-3664. With the Administrative Complaint, Respondent

forwarded Mr. Dipple's Motion to Dismiss and Statement of Facts,

originally served on Respondent on August 9, 2007. Mr. Dipple

denied the allegations of the Administrative Complaint, stating

that Mr. Lassen had interfered with the contract by refusing to

allow Mr. Dipple to work on scheduled days; that Mr. Lassen

wrongfully terminated the contract before the work was completed

and refused to allow Mr. Dipple to complete the work; that

Mr. Lassen owed money to Mr. Dipple; and that all portions of

the work performed by Mr. Dipple had passed all building

inspections. Mr. Dipple moved that the charges be dismissed on

the ground that the alleged facts did not support any of the

three counts stated in the Administrative Complaint.

12. With the Administrative Complaint, Respondent also

forwarded Mr. Dipple's notice to Respondent of his intent to

recover attorney's fees and costs, originally served on

Respondent on July 20, 2007.

13. DOAH Case No. 07-3664 was scheduled for hearing on

September 24, 2007, in Largo, Florida. On Mr. Dipple's motion,

the hearing was continued and rescheduled for November 27, 2007.

14. On November 5, 2007, Respondent filed its Notice of

Voluntary Dismissal of the Administrative Complaint. The

Division of Administrative Hearings' file in DOAH Case No. 07-

3663 was closed by Order dated November 6, 2007.

15. Mr. Dipple's contends that the probable cause panel

lacked other available information that could have and in fact

did subsequently exonerate him of the charges, 4 and that

Respondent violated its own rules, Chapters 455 and 489, Florida

Statutes, and fundamental principles of due process in

precipitously arriving at a probable cause determination before

Mr. Dipple had a fair opportunity to respond to the March 2,

2007, letter from Ms. Garriques-Sang.

16. It is found that the information before the probable

cause panel was sufficient to support the panel's decision to

pursue an Administrative Complaint against Mr. Dipple, in the

absence of any contrary information.

17. The evidence submitted in Mr. Dipple's March 23, 2007,

response to Mr. Lassen's allegations provided an insufficient

basis for a finding that the response would have altered the

probable cause panel's decision. While it does appear that

Mr. Dipple submitted evidence that Mr. Lassen had instructed him

to stop work, such evidence did not necessarily refute

Mr. Lassen's allegations that Mr. Dipple's actions had forced

him to seek another contractor to complete the job.

18. Mr. Lassen also alleged something approaching fraud

against Mr. Dipple, stating that he feared Mr. Dipple was

planning to move away from Largo and never intended to complete

the work. Mr. Dipple's response did not directly address this

allegation. Further, even if the probable cause panel had

timely received Mr. Dipple's response, the fact that the

response was mailed from Mr. Dipple's new residence in Oklahoma

would, if anything, have provided circumstantial support to

Mr. Lassen's allegations.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.569, and Subsections

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

20. Section 57.111, Florida Statutes, the Florida Equal

Access to Justice Act, provides, in pertinent part, as follows:

(4)(a) 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 proceeding 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.

21. In proceedings to establish entitlement to an award of

attorney's fees and costs pursuant to Section 57.111, Florida

Statutes, the initial burden of proof is on the party requesting

the award to establish by a preponderance of the evidence that

it prevailed in the underlying disciplinary action and that it

was a small business party at the time the disciplinary action

was initiated. Once the party requesting the award has met this

burden, the burden of proof shifts to the agency to establish

that it was substantially justified in initiating the

disciplinary action. See Helmy v. Department of Business and

Professional Regulation , 707 So. 2d 366, 368 (Fla. 1st DCA

1998); Department of Professional Regulation, Division of Real

Estate v. Toledo Realty, Inc. and Ramiro Alfert , 549 So. 2d 715,

717 (Fla. 1st DCA 1989).

22. Petitioner, Michael Anthony Dipple, prevailed in the

underlying proceeding. § 57.111(3)(c)3., Fla. Stat.

23. Mr. Dipple is a "small business party" as contemplated

by Subsection 57.111(3)(d), Florida Statutes.

24. The sole issue in this proceeding is whether

Respondent's actions were "substantially justified." Subsection

57.111(3)(e), Florida Statutes, provides that a proceeding is

"substantially justified" if it had a "reasonable basis in law

and fact at the time it was initiated by a state agency ."

(Emphasis added.) The "substantially justified" standard falls

somewhere between the "no justiciable issue" standard of Section

57.105, Florida Statutes, and an automatic award of fees to a

prevailing party. Helmy , 707 So. 2d at 368.

25. In Department of Health v. Cralle , 852 So. 2d 930, 932

(Fla. 1st DCA 2003), the court set forth the following temporal

limitation on the required analysis, quoting from Fish v.

Department of Health , 825 So. 2d 421, 423 (Fla. 4th DCA 2002):

In resolving whether there was substantial

justification or a reasonable basis in law

and fact for filing an administrative

complaint, "one need only examine the

information before the probable cause panel

at the time it found probable cause and

directed the filing of an administrative

complaint."

See also Agency for Health Care Administration v. Gonzalez , 657

So. 2d 56 (Fla. 1st DCA 1995)(proper inquiry is whether evidence

before probable cause panel was sufficient for institution of

disciplinary action).

26. In Fish , the Department of Health commenced an

investigation against Dr. Fish pursuant to a complaint filed by

a fellow dentist. After the investigation was completed, the

Department forwarded the investigative file to the probable

cause panel. Dr. Fish had disputed the allegations and filed a

timely written response, but the Department chose not to forward

his response to the probable cause panel. 825 So. 2d at 422.

The panel found probable cause and forwarded the matter to the

Division of Administrative Hearings. The Department

subsequently dismissed the case, and Dr. Fish petitioned for

attorney's fees pursuant to Section 57.111, Florida Statutes.

27. One of the grounds asserted by Dr. Fish was that the

Department denied him due process by failing to forward his

response to the probable cause panel. In affirming the

Administrative Law Judge's conclusion that the Department was

substantially justified in proceeding against Dr. Fish, the

court reasoned as follows:

Notwithstanding the existence of a

procedural due process error due to the

Probable Cause Panel's failure to review

appellant's timely response, we nevertheless

conclude that there existed competent

substantial evidence to support the ALJ's

finding of substantial justification.

Although the charges brought against

appellant were subsequently withdrawn and

the DOAH action dismissed, a review of the

record and investigative file reveals that

the Department was substantially justified

at the time it initiated its disciplinary

action. The DOAH action against appellant

was dismissed, not because of any procedural

irregularity, as espoused by appellant, but

because two of the Department's key

witnesses died and one witness had a

disciplinary history with the Florida Bar.

Thus, the Department strategically decided

to forego any further prosecution against

appellant.

The record supports the conclusion that the

Probable Cause Panel had the complete

investigative file before it prior to its

consideration of appellant's case. And,

while the Probable Cause Panel should have

considered appellant's response prior to its

determination to proceed with an

administrative complaint, there is no

evidence to conclude that the Probable Cause

Panel would have reached a different result

had it considered his response. Appellant's

response to the investigative file disputed

the allegations against him, but did not

disprove or conclusively rebut those

allegations. In fact, appellant's response

highlighted the fact that there were

disputed issues of fact as to the charges

against him.

Id. at 423.

28. In Fish as in the instant case, the information before

the probable cause panel substantially justified the panel's

determination, and the question was whether the panel's decision

was skewed because it did not have all of the relevant

information before it. The Fish court found that the agency's

failure to place the petitioner's response to the allegations

before the probable cause panel constituted a procedural due

process error. However, the court went on to hold that such a

procedural error was insufficient to overturn the finding that

the agency's actions were substantially justified, unless that

procedural error compromised the accuracy and integrity of the

probable cause process.

29. In the instant case, it is questionable whether there

was a due process error at all. The due process error in Fish

consisted of the Department's conscious decision to withhold

Dr. Fish's response from the probable cause panel. In the

instant case, Respondent did not yet have Mr. Dipple's response

at the time the matter was submitted to the probable cause

panel. In any event, the record evidence was insufficient to

establish that Mr. Dipple's response would have changed the

result reached by the probable cause panel. The record evidence

also failed to establish any necessary connection between

Mr. Dipple's late-filed response and the agency's ultimate

decision to dismiss the Administrative Complaint. Thus, any

procedural error committed by Respondent in failing to provide

Mr. Dipple with adequate time to respond to Ms. Garriques-Sang's

initial letter was insufficient to change the finding that the

probable cause panel's decision to move forward with an

Administrative Complaint was substantially justified at the time

it was made.

30. Mr. Dipple pointed to no Pinellas County Construction

Licensing Board rule requiring that a licensee be allowed to

respond to a complaint before probable cause may be found to

proceed with an Administrative Complaint against that licensee.

31. Mr. Dipple contends that because he is a state

licensed contractor, and because some of the counts of the

Administrative Complaint alleged violations of Chapter 489,

Florida Statutes, the procedural provisions of Chapters 455 and

489, Florida Statutes, are applicable to Respondent's probable

cause process.

32. Mr. Dipple points to Subsection 455.225(1)(b), Florida

Statutes, which provides:

When an investigation of any subject is

undertaken, the [Department of Business and

Professional Regulation] shall promptly

furnish to the subject or the subject's

attorney a copy of the complaint or document

that resulted in the initiation of the

investigation. The subject may submit a

written response to the information

contained in such complaint or document

within 20 days after service to the subject

of the complaint or document. The subject's

written response shall be considered by the

probable cause panel. The right to respond

does not prohibit the issuance of a summary

emergency order if necessary to protect the

public. However, if the secretary, or the

secretary's designee, and the chair of the

respective board or the chair of its

probable cause panel agree in writing that

such notification would be detrimental to

the investigation, the department may

withhold notification. The department may

conduct an investigation without

notification to any subject if the act under

investigation is a criminal offense.

(Emphasis added.)

33. Mr. Dipple contends that the underscored language

required Respondent to give him 20 days, not "10 working days,"

in which to respond to Mr. Lassen's complaint. He also contends

that the underscored language required the probable cause panel

to consider his response.

34. However, Mr. Dipple neglects to note that Section

455.017, Florida Statutes, provides: "The provisions of this

chapter apply only to the regulation by the department of

professions." Section 455.225, Florida Statutes, is therefore

inapplicable to Respondent, a local government entity

responsible for disciplinary enforcement of construction

licensing requirements in Pinellas County, Florida. Ch. 75-489,

III, div. 2, Pinellas County Code.

35. In summary, Mr. Dipple was the prevailing small

business party in the underlying proceeding. However,

Respondent established that its actions were substantially

justified, in that it had a reasonable basis in law and fact at

the time probable cause was found.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Michael Anthony Dipple's Motion to Tax for

Attorney's Fees and Costs is denied.

DONE AND ORDERED this 14th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 14th day of April, 2008.

ENDNOTES

1/ All references are to Florida Statutes (2007), unless

otherwise noted.

2/ Respondent initially disputed that Petitioner was a small

business party, but later stipulated that Respondent is a

prevailing small business party.

3/ The record in the instant case includes Mr. Dipple's response

but not the attachments thereto. It unclear from the text of

Mr. Dipple's response whether Mr. Dipple provided Respondent

with a copy of his answering machine tape or with a written

transcription of Mr. Lassen's call.

4/ It must be noted that Respondent took no express position on

its reasons for dismissing the prosecution. The Notice of

Voluntary Dismissal stated simply that Respondent was

voluntarily dismissing the matter, "without prejudice."

COPIES FURNISHED :

Jason Ester, Esquire

Pinellas County Attorney Office

315 Court Street

Clearwater, Florida 33756-5165

Brett Wadsworth, Esquire

Brett Wadsworth, LC

Post Office Box 270118

Tampa, Florida 33688

Rodney S. Fischer, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

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 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.