The Issue The issues for disposition in this case are whether Respondent committed willful violations of section 106.07(7), Florida Statutes (2014), when its campaign treasurer failed to notify the filing officer that Respondent had not received funds, made contributions, or expended reportable funds during four 2014 reporting periods; and, if so, whether Respondent is subject to civil penalties in view of the holding in PAC for Equality v. Department of State, Florida Elections Commission, 542 So. 2d 459 (Fla. 2d DCA 1989).
Findings Of Fact Petitioner is the entity responsible for investigating complaints and enforcing Florida's election and campaign financing laws, chapters 104 and 106, Florida Statutes. § 106.25, Fla. Stat. Respondent is a political committee organized for the purpose of sponsoring and supporting a constitutional initiative to conserve and protect Florida’s scenic beauty, which is primarily directed to restrictions on billboards along Florida highways. Respondent has been a registered political committee since 2002. Prior to 2014, Respondent suspended its campaign to gather petitions to place the constitutional initiative on the ballot. Respondent has not abandoned the campaign, and the initiative remains legally active. Prior to 2014, Respondent’s most recent financial activity was an expenditure of $61.25 in the first quarter of 2011. Respondent’s assets during 2014 consisted of $157.50 held in a bank account. There were no contributions received or expenditures made by Respondent during the times pertinent to this proceeding. Respondent’s treasurer is Mr. Crescimbeni. Mr. Crescimbeni acknowledged his responsibility as treasurer to accurately report to the Division of Elections the contributions received and expenditures made by Respondent, and the dates of each. The reporting requirements were contained in a political committee handbook and copy of the Florida statutes that are provided by Petitioner to all political committees. Mr. Crescimbeni acknowledged having received and read both documents. Although some reporting requirements have changed since Mr. Crescimbeni’s receipt of the political committee handbook, Mr. Crescimbeni believed that he understood the reporting requirements. Mr. Crescimbeni understood that, since Respondent neither received contributions nor made expenditures, the requirement to submit a treasurer’s report was statutorily waived, though there was a requirement to notify the filing officer that a report was not being filed. In 2013, section 106.07 was amended, creating 33 reporting periods for calendar year 2014, significantly more than existed prior to the amendments. Ch. 2013-37, § 9, Laws of Fla.3/ Reports for the 33 reporting periods in 2014 were statutorily waived pursuant to section 107.07(7), inasmuch as there were no contributions or expenditures. Notifications of no activity were filed for each of the 33 reporting periods in 2014, all of which were timely, except the four identified in the Order of Probable Cause. The M5 Filing Period The notification of no activity for the 2014 M5 reporting period of May 1 through May 31, 2014, was due by midnight on June 10, 2014. The notification of no activity for the 2014 M5 reporting period was filed on Saturday, June 14, 2014, at 11:50:59 a.m. On the morning of Saturday, June 14, 2014, Mr. Crescimbeni picked up Respondent’s mail from the post office. He then traveled to his office, where he opened the mail. Among the items received was a notice from the Division of Elections advising Respondent that its M5 report had not been received by the filing deadline. The letter was dated June 11, 2014, and bore a postmark of June 12, 2014. When Mr. Crescimbeni realized his error, he immediately uploaded the report of no activity at 11:50 a.m. on the morning of June 14, 2014. Mr. Crescimbeni testified credibly that “[m]y delayed filing of the M5 notification of no activity was neither deliberate nor a repeated failure. It was simply an oversight and nothing more.” The P1 Report The notification of no activity for the 2014 P1 reporting period of June 1 through June 20, 2014, was due by midnight on Friday, June 27, 2014. The notification was filed on Saturday, June 28, 2014, at 9:34:11 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the PI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The G1 Report The notification of no activity for the 2014 G1 reporting period of August 23 through 29, 2014, was due by midnight on Friday, September 5, 2014. The notification was filed on Saturday, September 6, 2014, at 3:52:33 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the GI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The D2 Report The notification of no activity for the 2014 D2 reporting period of October 25, 2014, was due by midnight on Sunday, October 26, 2014. The notification was filed on Monday, October 27, 2014, at 10:12:15 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the D2 notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. As to each of the four notifications of no activity referenced above, Mr. Crescimbeni credibly testified that the delay was: [T]he result of my temporary inattention and each such delay was a simple and inadvertent omission on my part that was promptly remedied . . . . I was never indifferent to the required filings of notifications of no activity. Each such delay by me in making such filing of said notification was not intentional. Each such delay was not deliberate, purposeful, or with any intent or consciousness on my part to avoid the notification of “no” activity. Mr. Crescimbeni’ testimony is accepted. There was no evidence adduced at the hearing suggesting there to have been any financial or political advantage or benefit that could reasonably be derived from the late filing of the four notifications of no activity referenced above. The Commission does not investigate willfulness and does not make a finding of willfulness until after the determination of probable cause in a Probable Cause Hearing.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in these consolidated cases was issued on November 17, 2010, setting the hearing for January 24 and 25, 2011, in Tallahassee, Florida. The hearing was scheduled to commence at 9:30 a.m. on January 24, 2011. Also on November 17, 2010, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On January 19, 2011, Petitioner filed a letter at the Division of Administrative Hearings requesting that the hearing be delayed until after February 18, 2011, due to various appointments she had made that conflicted with the hearing dates. This letter indicated that Petitioner was aware of the scheduled hearing dates. By order dated January 20, 2011, the undersigned declined Petitioner's request for failure to state grounds sufficient to warrant a continuance over the objection of Respondent. Several attempts to reach Petitioner by telephone were unavailing. At 9:30 a.m. on January 24, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:45 a.m. Counsel for Respondent entered her appearance and requested the entry of a recommended order of dismissal. The hearing was then adjourned. As of the date of this recommended order, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 26th day of January, 2011, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011. COPIES FURNISHED: Kimberly D. Dotson 825 Briandav Street Tallahassee, Florida 32305 Kim M. Fluharty-Denson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary Kowalski Department of Financial Services Human Resource 200 East Gaines Street, Suite 112 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 25, 2009, the Amended Order of Penalty Assessment issued on March 2, 2009, the 2nd Amended Order of Penalty Assessment issued on March 6, 2009, the 3rd Amended Order of Penalty Assessment issued on April 20, 2009, and the 4th Amended Order of Penalty Assessment issued on September 21, 2009, attached as "Exhibit A," "Exhibit B," "Exhibit C," Exhibit "D," and Exhibit "F," respectively, and fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, the 3rd Amended Order of Penalty Assessment, and the 4th Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: On February 25, 2009, the Department of Financial Services, Division of Workers' Compensation (hereinafter "Department") issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers' Compensation Case No. 09-049-D? to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On February 25, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference. On March 2, 2009, the Department issued an Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The Amended Order of Penalty Assessment assessed a total penalty of $249,479.80 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On March 2, 2009, the Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference. On March 6, 2009, the Department issued a 2nd Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $235,409.69 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days ofreceipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On March 6, 2009, the 2nd Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit C" and incorporated herein by reference. On April 20, 2009, the Department issued a 3rd Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $52;334.24 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3rd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On April 20, 2009, the 3rd Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/8/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as "Exhibit D" and incorporated herein by reference. On May 1, 2009, LUIS AMAYA, D/8/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on May 19, 2009, and the matter was assigned DOAH Case No. 09-2763. A copy of the petition is attached hereto as "Exhibit E" and incorporated herein by reference. On September 21, 2009, the Department issued a 4th Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 4th Amended Order of Penalty Assessment assessed a total penalty of $30,869.44 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 4th Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the 4th Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 4th Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On September 21, 2009, the 4th Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the 4th Amended Order of Penalty Assessment is attached hereto as "Exhibit F" and incorporated herein by reference. On September 23, 2009, the Department received a letter from LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP, stating that he wished to withdraw his request for administrative hearing. A copy of the letter to withdraw the request for hearing is attached hereto as "Exhibit G" and incorporated herein by reference. On September 23, 2009, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as "Exhibit H" and incorporated herein by reference.
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
Findings Of Fact 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. Respondent concedes that Petitioner is a prevailing small business party in the underlying proceeding, pursuant to Section 57.111, Florida Statutes. 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. 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. 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.) 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. 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. Mr. Dipple's response included a letter from his attorney to Mr. Lassen and a copy of a phone message3 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
The Issue Whether Respondent, G and F Renovations, Inc. (Respondent), timely challenged Petitioner's proposed agency action; and, if not, whether pursuant to the doctrine of equitable tolling Respondent is entitled to an administrative hearing to challenge the proposed agency action.
Findings Of Fact Petitioner is the state agency charged with the responsibility of enforcing and ensuring employers meet the requirements of chapter 440, Florida Statutes. The law in Florida requires employers to maintain appropriate workers' compensation coverage for their employees. At all times material to this case, Respondent was doing business in Florida and was represented by Pedro Malaret, attorney at law. Prior to May 1, 2014, Michael Robinson, a compliance investigator employed by Petitioner, visited a job site wherein workers were engaged in the business of construction/roofing. Robinson was advised by the workers at the site that they were employed by Respondent. Robinson then investigated the matter to determine whether the persons at the job site were covered by Respondent's workers' compensation insurance. To do so, he spoke to the supervisor at the site and others to whom he was referred. After verifying the persons on the job site were not on the list of Respondent's covered employees, and consulting with his supervisor, Robinson posted a Stop-Work Order at the job site. The Stop-Work Order provided, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this action, you are entitled to a hearing under Sections 120.569 and 120.57(1), Florida Statutes, at which you may be represented by counsel, present evidence and argument on the issue(s), examine witnesses, submit a proposed recommended order, and file exceptions to the recommended order of the Administrative Law Judge. If you do not dispute a material fact contained in this action, you are entitled to a hearing under section 120.57(2), Florida Statutes, at which you may be represented by counsel, present documentary evidence, and present a written statement in opposition to this action. * * * You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION WITH THE TWENTY-ONE(21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. The Stop-Work Order and an Order of Penalty Assessment was served on Respondent's corporate agent, or authorized agent, by a process server. Respondent did not timely file a petition challenging the agency's proposed action. Instead, by email only, Respondent's counsel directed a letter to Robinson that provided: This firm has the pleasure of representing G & F Renovations, Inc. All papers to be served on G & F should be mailed or delivered to this office. My client wishes to resolve all issues relating to the matter amicably and as quickly as possible. As such, please forward a list of all documents needed to my office so that I may get them to you as soon as possible. Should you require any further documentation, please feel free to contact me either at my office or on my cell . . . I look forward to working with your [sic] to resolve this matter. Contrary to the offer to provide documents to Petitioner, Respondent did not provide business records. Eventually, an Amended Order of Penalty Assessment was issued and provided by email to Respondent's counsel at his email address of record. The Amended Order of Penalty Assessment was sent to counsel on or about October 6, 2014. Respondent did not timely file a petition to challenge the proposed agency action. Respondent did not timely challenge the Stop-Work Order and did not timely challenge the Amended Order of Penalty Assessment. Respondent did not provide any assistance to resolve the issues presented by the Stop-Work Order. When Respondent failed to timely respond to the Petitioner's requests for information, refused certified mail addressed to its office or corporate representative, and failed to timely challenge Petitioner's proposed action, a final order was entered on or about July 8, 2015. Thereafter, Respondent filed an appeal claiming Petitioner had not properly served notice of its proposed action. This case was initiated in response to the appeal to address the issue of whether the Petitioner lulled the Respondent into inaction and thereby tolled the time within which to file an administrative challenge to the proposed agency action. At no time did Respondent deny allegations pertinent to the instant case, including whether the workers at the construction job site were employed by Respondent. If the workers at the construction job site were appropriately covered by workers' compensation insurance or were exempt from coverage, Respondent did not assert such defense. In fact, Respondent did not cooperate to provide any information to Petitioner that would "resolve all issues relating to the matter amicably and as quickly as possible." Petitioner provided notice to Respondent of the procedural requirements to challenge the agency action and did not lull Respondent into a false sense of security or inaction. To the contrary, Respondent attempted to circumvent its legal responsibilities by refusing certified mail and failing to provide business records in a timely manner. Respondent seeks to benefit from its inaction. Had Respondent provided documents to support any defense to the Stop-Work Order and initial assessment of administrative fine, the issues could have been resolved. The weight of the credible evidence supports the finding that Respondent did not timely challenge the proposed agency action within the 21 days allowed by law. In short, Respondent ignored the Stop-Work Order and the legal claims it presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to timely file a petition to challenge the agency's proposed action and its failure to do so was not the result of equitable tolling. DONE AND ENTERED this 6th day of December, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of December, 2016. COPIES FURNISHED: Michael Joseph Gordon, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Kelli B. Hastings, Esquire Law Office of Kelli B. Hastings, PLLC 4005 North Orange Blossom Trail Orlando, Florida 32804 (eServed) Pedro Malaret, Esquire Malaret Law Firm, PLC 732 North Thorton Avenue Orlando, Florida 32803 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
