07-001630PL
Department Of Business And Professional Regulation, Construction Industry Licensing Board vs.
Richard Steven Rhodes, D/B/A R.S. Rhodes Construction, Inc.
Status: Closed
Recommended Order on Tuesday, August 14, 2007.
Recommended Order on Tuesday, August 14, 2007.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND ) )
14PROFESSIONAL REGULATION, )
17CONSTRUCTION INDUSTRY )
20LICENSING BOARD, )
23)
24Petitioner, ) Case No. 07-1630PL
29)
30vs. )
32)
33RICHARD STEVEN RHODES, )
37d/b/a R. S. RHODES )
42CONSTRUCTION, INC., )
45)
46Respondent. )
48RECOMMENDED ORDER
50Notice was provided and on June 26, 2007, a formal hearing
61was held in this case. Authority for conducting the hearing is
72set forth in Sections 120.569 and 120.57(1), Florida Statutes
81(2006). The hearing proceeded by video-teleconferencing between
88sites in Tallahassee and Jacksonville, Florida. The hearing was
97held before Charles C. Adams, Administrative Law Judge.
105APPEARANCES
106For Petitioner: Michael B. Golen, Esquire
112Department of Business and
116Professional Regulation
1181940 North Monroe Street
122Tallahassee, Florida 32399-2202
125For Respondent: No appearance
129STATEMENT OF THE ISSUE
133Should discipline be imposed against Respondent's license as
141a certified general contractor in Florida for violations of
150Chapter 489, Florida Statutes (2004)?
155PRELIMINARY STATEMENT
157On June 28, 2006, in case numbers 2005-054514 and 2005-
167054794, before the Construction Industry Licensing Board (the
175Board), the Department of Business and Professional (DBPR),
183brought an Administrative Complaint against Respondent accusing
190him of a violation of the statute referred to in the Statement of
203the Issue. The Administrative Complaint was premised upon
211alleged construction contracts or agreements entered into with
219Mario E. Canas and Escolastico Gumapas, Jr., respectively.
227Respondent was provided several options in addressing the
235Administrative Complaint by executing an Election of Rights Form.
244He chose the second option. That option was to dispute the
255allegations of fact contained in the Administrative Complaint and
264the legal conclusions drawn from the factual allegations.
272Respondent asked that he be heard in accordance with Section
282120.57(1), Florida Statutes, by an administrative law judge to
291resolve certain of the facts he disputed. Specifically he
300contested the following facts:
304Count I #10, #16; Count II #21; Count IV #26;
314Count V #28, #30, #35, #38; Count VI # 38;
324Count VII #43; Count IX #45; and Count X #47
334In executing the Election of Rights Form with his signature,
344Respondent also provided his address as 1964 Beachside Court,
353Atlantic Beach, Florida 32233.
357On April 10, 2007, DBPR forwarded the case to the Division
368of Administrative Hearings (DOAH), to assign an administrative
376law judge to conduct the hearing in accordance with Respondent's
386request for formal hearing. The assignment was made by Robert S.
397Cohen, Director and Chief Judge of DOAH in reference to DOAH Case
409No. 07-1630PL. The assignment was to the present administrative
418law judge.
420On April 10, 2007, an Initial Order was sent to the parties.
432On April 23, 2007, a Notice of Hearing by Video-teleconference
442setting the hearing date as June 26, 2007, was sent to the
454parties. On April 23, 2007, an Order of Prehearing Instructions
464was sent to the parties. Respondent's copies of the orders and
475notice were sent to him at the address he had provided in signing
488the Election of Rights Form. The copies were provided by
498ordinary mail. None of the copies were returned as
507undeliverable.
508Although Respondent had been duly noticed of the hearing, he
518did not attend.
521At hearing Petitioner's counsel was questioned concerning
528any contacts he may have had with Respondent prior to the hearing
540date, that might explain Respondent's lack of appearance.
548Petitioner's counsel had no explanation, having a similar
556experience of contacts with Respondent through the mails,
564involving various pleadings that were filed by Petitioner; the
573experience was that Respondent was served with those pleadings
582and no indication given that the service was not perfected.
592No one else attended the hearing to represent Respondent's
601interest.
602Inquiry was made concerning Petitioner's intentions absent
609the Respondent. Petitioner chose to proceed with its case in
619view of the Election of Rights by Respondent and his choice to
631dispute certain underlying facts in the case and the legal
641conclusions that followed. In that posture, Petitioner's counsel
649asked that the uncontested facts set forth in the Administrative
659Complaint be accepted as true. That request was granted. The
669uncontested facts will be set forth in the Findings of Fact to
681this Recommended Order, in addition to facts found based upon the
692record established at hearing.
696Escolastico Gumapas, Jr., testified. He appeared in
703Jacksonville, Florida. Mario E. Canas participated by telephone
711from a location in Texas, in accordance with Petitioner's motion
721to have that witness appear by telephone, a motion granted at
732hearing. Petitioner's Exhibits A1 through A13, A13A, A14 and A15
742were admitted. Petitioner's Exhibits A13 and A13A were late-
751filed exhibits received on June 27, 2007.
758The hearing record was not transcribed. On June 28, 2007,
768Petitioner filed its proposed recommended order. Respondent has
776not filed a proposed recommended order within the time allowed
786for filing. On July 6, 2007, the period for submitting proposed
797findings of fact and conclusions of law orders and memoranda
807ended.
808FINDINGS OF FACT
811Uncontested Facts :
8141. Petitioner is the state agency charged with regulating
823the practice of contracting pursuant to Section 20.165, Florida
832Statutes, and Chapters 455 and 489, Florida Statutes.
8402. Respondent has been at all times material hereto, a
850Certified General Contractor in the State of Florida, having been
860issued license number CGC062689.
8643. Respondent's last known address of record is 1964
873Beachside Court, Atlantic Beach, Florida 32233.
8794. At all times material hereto, Respondent was the primary
889qualifying agent for R.S. Rhodes Construction, Inc. ("RRC"), which
900did not possess a certificate of authority.
9075. On or about November 10, 2004, Respondent entered into a
918contract with Mario E. Canas ("Canas") to build a room addition to
932Canas' house located at 2528 Ligustrum Road, Jacksonville,
940Florida.
9416. The contract did not contain information regarding the
950Florida Homeowners' Construction Recovery Fund.
9557. The contracted price for the construction was $34,946.00,
965of which RRC accepted $25,967.40.
9718. On or about April 4, 2005, Duval County Building
981Department issued Permit No. B0518467, by and through Respondent's
990license, for the contracted construction.
9959. Construction commenced in or around April 2005, and
1004continued until on or about August 19, 2005, at which time
1015construction ceased before completion due to Respondent's license
1023being revoked.
102510. On or about June 27, 2005, Respondent's Certified
1034General Contractor's license was revoked by the Construction
1042Industry Licensing Board for the Florida Department of Business
1051and Profession Regulation.
105411. As a result of Respondent's failing to pay
1063subcontractors, Canas was forced to pay an additional $2,850.00 to
1074subcontractors to avoid liens being placed on his property.
108312. To date, Respondent has failed to return any money to
1094Canas which Respondent received above the amount completed on the
1104contract.
110513. In or around 2004, Respondent entered into an agreement
1115with Escolastico Gumapas, Jr. ("Gumapas") to construct a front
1126porch addition to Gumapas' house located at 12242 Antoni Court,
1136Jacksonville, Florida.
113814. The contract did not contain information regarding the
1147Florida Homeowners' Construction Recovery Fund.
115215. The contract price for the construction was $12,000.00,
1162of which RRC accepted $2,000.00.
116816. Respondent failed to obtain a permit for the contracted
1178construction due to the fact that the City requested a zoning
1189variance before a permit would be issued.
119617. Respondent failed to apply for or obtain a zoning
1206variance and, therefore, Respondent failed to commence
1213construction.
1214Additional Facts :
1217Canas Transaction
121918. On November 10, 2004, Mario Eduardo Canas and Xiomara
1229Canas, as owners, entered into a contract with Respondent d/b/a
1239R.S. Rhodes Construction Company, Inc. (R.S. Rhodes), for work to
1249be performed at 2028 Ligustrum Road, Jacksonville, Florida. On
1258October 16, 2004, prior to signing the contract, Mr. Canas had
1269paid R.S. Rhodes $2,000.00 to commence the project.
127819. The contract terms anticipated that the contractor
1286would furnish needed materials and perform the work shown on the
1297drawings and/or described in specifications in relation to the
1306proposal for the work.
131020. The time of completion was referred to in Article 2 of
1322the contract which states:
1326The work to be performed under this Contract
1334shall be commenced WITHIN TWO WEEKS AFTER
1341PERMIT IS ISSUED, and shall be substantially
1348completed WITHIN 16 WEEKS FROM PERMIT ISSUE
1355DATE Time is of the essence. The following
1363constitutes substantial commencement of work
1368pursuant to this proposal and contract:
1374(specify) Work begins first day of ground
1381breaking.
138221. The overall contract price was $34,946.00.
139022. Article 4 established Progress Payments accordingly:
1397Payment of the Contract Price Shall be paid
1405in the manner Following:
14091st Draw Due at singing of contract $6,989.20
14182nd Draw Due After Foundation and columns $6,989.20
14273rd Draw Due After Framing, Trusses, Roof
1434Sheathing, Wall Sheathing, Doors,
1438Electrical Rough-In, Dry-In $6,989.20
14434th Draw Due After Roofing (Fiberglass)
1449Insulation, Drywall, Interior Trim,
1453Interior Paint $6,989.20
14575th Draw Due Upon Substantial Completion. $6,989.20
1465Total Cost of Construction $34,946.00
147123. Among the general provisions within Article 5 was the
1481provision that stated:
1484* * *
14874. Contractor shall furnish Owner
1492appropriate releases or waivers of lien for
1499all work performed or materials provided at
1506the time the next periodic payment shall be
1514due (when applicable).
1517* * *
152024. In relation to the Canas contract, it did not contain
1531Respondent's registration or certification number used in the
1539business of contracting.
154225. In April 2005 Respondent broke ground on the Canas
1552project. Respondent quit working around June 2005.
155926. In addition to the $2,000.00 paid in October 2004,
1570Mr. Canas made several more payments by check to R.S. Rhodes. On
1582November 11, 2004, Mr. Canas paid R.S. Rhodes $6,989.20. On
1593April 14, 2005, Mr. Canas paid R.S. Rhodes $6,989.20. On May 17,
16062005, R.S. Rhodes was paid $6,989.20. On August 5, 2005,
1617R.S. Rhodes was paid $3,000.00. All checks written were cashed.
162827. The May 17, 2005, payment was made prematurely, in that
1639the work called for under the contract had not been performed
1650prior to that payment.
165428. The August 5, 2005, $3,000.00 payment was made after
1665Respondent came back from a trip and promised to return to the
1677job. At that time the exterior of the home was being damaged
1689where work was incomplete. The project was still not on
1699schedule.
170029. In this connection, Respondent had not done the things
1710necessary to be paid the fourth draw under the contract.
172030. On August 19, 2005, Respondent wrote Mr. Canas
1729concerning the project stating:
1733This letter is to inform you that due to
1742conditions beyond the control of R.S. Rhodes
1749Construction, Inc. R.S. Rhodes Construction
1754Inc. is no longer doing business in the state
1763of Florida and will not be able to complete
1772your project under existing conditions. New
1778conditions may be arranged as a resolution to
1786this situation to complete your project at a
1794quality level you would expect.
1799At out last meeting on August 5, 2005, you
1808were informed and verified the financial
1814costs on your project. At that time you were
1823made aware how the project had run into a
1832deficit by approximately $3000.00 and
1837consequently wrote R.S. Rhodes Construction a
1843check to cover that deficit. All money given
1851to R.S. Rhodes has not made any profit, as
1860that was to come at the end of the project
1870once completed.
1872Valdan Electric, Inc., and A.J. Morel
1878Plumbing, Inc. are requesting their first
1884draw for the work already completed on your
1892project. Their requests are legitimate and
1898customary to the industry. Both are willing
1905to continue on the project.
1910I sincerely regret this situation and look
1917forward to discussing and implementing a
1923resolution that will complete our project in
1930a reasonable manner.
193331. The Canas project was concluded in October 2006.
194232. Arthur Morel as president/owner of A.J. Morel
1950Plumbing, Inc., filed a claim of lien in association with the
1961Canas project. Contrary to the contract entered into with
1970R.S. Rhodes, the unpaid amount upon which the claim of lien was
1982based was $1,200.00. Mr. Canas had to pay the plumber that
1994amount to satisfy the lien.
199933. Mr. Canas had to pay Valdan Electric, Inc., $1,000.00
2010in relation to a bill on the project that was not paid by
2023R.S. Rhodes.
202534. Mr. Canas had to pay Andre McBride $650.00 to install
2036windows in the project that were Respondent's obligation for
2045installation under the contract.
204935. After the Respondent abandoned the project, Mr. Canas
2058had to pay significant additional costs to conclude the project,
2068in addition to the specific references to additional costs that
2078have been described. Those miscellaneous expenses are reflected
2086in Petitioner's Exhibit numbered A10.
209136. The certificate of occupancy for the property at 2528
2101Ligustrum Road was granted by the Department of Public Works of
2112the City of Jacksonville of Florida, on October 27, 2006.
212237. On October 31, 2006, a certification of completion for
2132various forms of activities under permits issued by that agency
2142was provided.
2144Gumapas Transaction :
214738. On November 5, 2004, Respondent came to the Gumapas
2157home at 2242 Antoni Court, Jacksonville, Florida, to give an
2167estimate on construction. He took measurements of the house and
2177determined that the costs would be $12,000.00 for the work, to
2189include materials. After considering the estimate, Mr. Gumapas
2197agreed to allow Respondent to proceed with the project.
220639. On November 9, 2004, Respondent came back to the
2216Gumapas property and there was a verbal agreement to proceed with
2227the construction. Respondent said he needed $2,000.00 deposit to
2237do paperwork and that Respondent would draw up a proposal that
2248could be used as a receipt.
225440. On November 11, 2004, Mr. Gumapas paid Respondent the
2264$2,000.00 deposit.
226741. Mr. Gumapas asked Respondent when Respondent could
2275commence the project, Respondent replied that he would start on
2285the first week of January 2005, and that the work would be
2297completed in eight weeks.
230142. On November 15, 2004, Respondent and Escolatico Gumapas
2310signed a proposal for construction at 2242 Antoni Court in
2320Jacksonville, Florida. The proposal called for a $2,000.00 down
2330payment in relation to initial drawings and planning to construct
2340a porch on the front of the home. Other terms of the proposal
2353were:
2354Preliminary drawings will be done before the
2361construction drawings are completed, so as to
2368maintain construction costs within the
2373estimated costs, as discussed in our previous
2380meeting. That estimated costs of
2385construction discussed was approximately
2389$12,000.00, depending on the final
2395construction drawings.
2397After construction drawings are complete, a
2403full proposal and cost estimate will then be
2411attached to the contract and submitted for
2418signature. Please sign and return with down
2425payment to schedule commencement.
242943. Related to the Gumapas project, the proposal did not
2439contain Respondent's registration or certification number used in
2447the business of contracting.
245144. When Respondent failed to commence the project on time,
2461Mr. Gumapas tried to call Respondent, but the call was not
2472returned. Eventually, Mr. Gumapas spoke with Respondent.
2479Respondent said that he was having trouble with the City of
2490Jacksonville zoning department and that Respondent needed to take
2499pictures of the area. Respondent told Mr. Gumapas that there had
2510been changes in relation to the rules pertaining to a variance
2521from the City of Jacksonville, needed to proceed with the
2531project. The details of those changes were not explained by
2541Respondent.
254245. After numerous attempts to reach the Respondent,
2550Mr. Rhodes spoke with Respondent in late April 2005, or perhaps
2561in early May 2005. Respondent told Mr. Gumapas that permits had
2572been approved by the zoning department of the City of
2582Jacksonville that needed to be picked up.
258946. On May 11, 2005, Mr. Gumapas executed an Agent's Letter
2600of Authorization granting R.S. Rhodes, as represented by
2608Respondent, authorization to act as Mr. Gumapas' agent to apply
2618for a zoning variance with the City of Jacksonville.
262747. Respondent had not begun the work by mid-May 2005.
2637Mr. Gumapas again tried to reach the Respondent by telephone.
264748. Mr. Gumapas then went to Respondent's home and left a
2658message with a person at the home, to the effect that Mr. Gumapas
2671needed to speak with Respondent about the porch at the Gumapas
2682home.
268349. On June 5, 2005, Mr. Gumapas spoke with Respondent and
2694told him that he did not wish Respondent to proceed with the
2706construction based upon the delay. Respondent apologized.
2713Mr. Gumapas asked for his money back. Respondent told
2722Mr. Gumapas that he would pay him back $1,400.00 because
2733Respondent had already done work. Respondent told Mr. Gumapas
2742that he would get back with the owner with paperwork reflecting
2753by invoice the work that had been done.
276150. A month passed and Respondent did not contact
2770Mr. Gumapas. Mr. Gumapas called Respondent.
277651. On July 6, 2005, Respondent sent Mr. Gumapas an
2786invoice.
278752. Later, Mr. Gumapas found out that the permit for the
2798project had been denied by the City of Jacksonville. Mr. Gumapas
2809tried to call Respondent about the permit denial. Respondent did
2819not return his call.
282353. In August 2005, Mr. Gumapas went to talk to the City of
2836Jacksonville building department about the permit denial.
2843Someone there told Mr. Gumapas that R.S. Rhodes had never
2853requested a permit to build the front porch, as evidenced in
2864Petitioner's Exhibit A14.
286754. Mr. Gumapas continued to request the refund of his
2877$2,000.00 deposit paid by a check that was cashed.
288755. In November 2005, Respondent returned $100.00 paid to
2896R.S. Rhodes. Mr. Gumapas continued to contact Respondent to have
2906the balance of the deposit returned. Eventually, Respondent paid
2915more money for the refund of the deposit. The total amount paid
2927was $500.00. Mr. Gumapas continues to contact Respondent to
2936retrieve the balance of his deposit.
2942CONCLUSIONS OF LAW
294556. The Division of Administrative Hearings has
2952jurisdiction over the parties and the subject matter of this
2962proceeding in accordance with Sections 120.569, and 120.57(1),
2970Florida Statutes (2006).
297357. At times relevant to the case, Respondent was a
2983certified general contractor in Florida, license number
2990CGC062689. § 489.115, Fla. Stat. (2004).
299658. Through the Administrative Complaint Respondent has
3003been accused of violations reflected in Counts I through X. Each
3014of those counts shall be discussed.
302059. This is a disciplinary case. For that reason,
3029Petitioner bears the burden of proving the accusations against
3038Respondent. The proof must be sufficient to sustain the
3047allegations in the Administrative Complaint by clear and
3055convincing evidence. Department of Banking and Finance Division
3063of Securities and Investor Protection v. Osborne Stern and Co. ,
3073670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington , 510 So. 2d
3086292 (Fla. 1987). The term clear and convincing evidence is
3096explained in the case In re: Davey , 645 So. 2d 398 (Fla. 1994),
3109quoting with approval from Slomowitz v. Walker , 429 So. 2d 797
3120(Fla. 4th DCA 1983).
312460. Given the penal nature of this case, Chapter 489,
3134Florida Statutes (2004), has been strictly constructed. Any
3142ambiguity favors the Respondent. See State v. Pattishall , 99
3151Fla. 296 and 126 So. 147 (Fla. 1930), and Lester v. Department of
3164Professional and Occupational Regulation, State Board of Medical
3172Examiners , 348 So. 2d 923 (Fla. 1st DCA 1977).
318161. Count I to the Administrative Complaint refers to
3190Section 489.119(2), Florida Statutes (2004), which states:
3197Business organizations; qualifying agents.--
3201* * *
3204(2) If the applicant proposes to engage in
3212contracting as a business organization,
3217including any partnership, corporation,
3221business trust, or other legal entity, or in
3229any name other than the applicant's legal
3236names or a fictitious name where the
3243applicant is doing business as a sole
3250proprietorship, the business organization
3254must apply for a certificate of authority
3261through a qualifying agent and under the
3268fictitious name, if any.
327262. Section 489.1195(1)(a), Florida Statutes (2004),
3278states:
3279(1) A qualifying agent is a primary
3286qualifying agent unless he or she is a
3294secondary qualifying agent under this section.
3300(a) All primary qualifying agents for a
3307business organization are jointly and equally
3313responsible for supervision of all operations
3319of the business organization; for all field
3326work at all sites; and for financial matters,
3334both for the organization in general and for
3342each specific job.
334563. Section 489.105(4), Florida Statutes (2004), defines
"3352Primary Qualifying Agent," where it states:
3358'Primary qualifying agent' means a person who
3365possesses the requisite skill, knowledge, and
3371experience, and has the responsibility, to
3377supervise, direct, manage, and control the
3383contracting activities of the business
3388organization with which he or she is
3395connected; who has the responsibility to
3401supervise, direct, manage, and control
3406construction activities on a job for which he
3414or she has obtained the building permit; and
3422whose technical and personal qualifications
3427have been determined by investigation and
3433examination as provided in this part, as
3440attested by the department.
344464. R.S. Rhodes did not hold a certificate of authority.
3454Nonetheless, Respondent served as it primary qualifying agent and
3463was responsible for the work done on the Canas and Gumapas jobs
3475and for financial matters associated with those jobs.
348365. In relation to Respondent's doing business as the
3492primary qualifying agent for R.S. Rhodes, without a certificate
3501of authority, he is accused of violating Section 489.129(1)(i),
3510Florida Statutes (2004), which states:
3515Disciplinary proceedings.--
3517(1) The board may take any of the following
3526actions against any certificateholder or
3531registrant: place on probation or reprimand
3537the licensee, revoke, suspend, or deny the
3544issuance or renewal of the certificate,
3550registration, or certificate of authority,
3555require financial restitution to a consumer
3561for financial harm directly related to a
3568violation of a provision of this part, impose
3576an administrative fine not to exceed $5,000
3584per violation, require continuing education,
3589or assess costs associated with investigation
3595and prosecution, if the contractor,
3600financially responsible officer, or business
3605organization for which the contractor is a
3612primary qualifying agent, a financially
3617responsible officer, or a secondary
3622qualifying agent responsible under s.
3627489.1195 is found guilty of any of the
3635following acts:
3637* * *
3640(i) Failing in any material respect to comply
3648with the provisions of this part or violating
3656a rule or lawful order of the board.
366466. Respondent as the primary qualifying agent for
3672R.S. Rhodes is guilty for R.S. Rhodes' failure to apply for a
3684certificate of authority before engaging in contracting on the
3693Canas and Gumapas jobs under the R.S. Rhodes name. His actions
3704violated Section 489.119(2), Florida Statutes (2004), in
3711violation of Section 489.129(1)(i), Florida Statutes. The
3718violations were proven by clear and convincing evidence.
372667. Counts II and VI refer to Section 489.119(6)(b),
3735Florida Statutes (2004), in connection with the Canas and Gumapas
3745jobs respectively. That provision calls for:
3751The registration or certification number of
3757each contractor or certificate of authority
3763number for each business organization shall
3769appear in each offer of services, business
3776proposal, bid, contract, or advertisement,
3781regardless of medium, as defined by board
3788rule, used by that contractor or business
3795organization in the practice of contracting
380168. Respondent's certification number did not appear in the
3810Canas contract nor the Gumapas proposal as required. By
3819violating Section 489.119(6)(b), Florida Statutes (2004),
3825Respondent violated Section 489.129(1)(i), Florida Statutes
3831(2004), as referenced in Counts II and VI to the Administrative
3842Complaint. Clear and convincing evidence was provided as to
3851those violations.
385369. Counts III and VII refer to violations of Section
3863489.1425, Florida Statutes (2004), in relation to the Canas and
3873Gumapas jobs respectively. In pertinent part Section
3880489.1425(1), Florida Statutes (2004), states:
3885Duty of contractor to notify residential
3891property owner of recovery fund.--
3896(1) Any agreement or contract for repair,
3903restoration, improvement, or construction to
3908residential real property must contain a
3914written statement explaining the consumer's
3919rights under the recovery fund, except where
3926the value of all labor and materials does not
3935exceed $2,500 . . .
394170. Respondent failed to include the notification to
3949Mr. Canas and Mr. Gumapas residential property owners by written
3959statement of their rights to recover under the recovery fund, in
3970a setting in which the Canas contract and Gumapas agreement, as
3981to labor and materials exceeded, the $2,500.00 threshold.
3990Respondent violated Section 489.1425(1), Florida Statutes (2004).
3997Thus he violated Section 489.129(1)(i), Florida Statutes (2004).
4005Clear and convincing evidence was provided to establish these
4014violations.
401571. Counts IV and IX refer to Section 489.129(1)(g)2.,
4024Florida Statutes (2004), in relation to the Canas and Gumapas
4034jobs respectively. Section 489.129(1)(g)2., Florida Statutes
4040(2004), allows discipline to be taken for:
4047(g) Committing mismanagement or misconduct in
4053the practice of contracting that causes
4059financial harm to a customer. Financial
4065mismanagement or misconduct occurs when:
4070* * *
40732. The contractor has abandoned a customer's
4080job and the percentage of completion is less
4088than the percentage of the total contract
4095price paid to the contractor as of the time of
4105abandonment, unless the contractor is entitled
4111to retain such funds under the terms of the
4120contract or refunds the excess funds within 30
4128days after the date the job is abandoned; . .
4138.
4139Respondent abandoned the Canas and Gumapas jobs, and the
4148percentage of work completed was less than the percentage of the
4159total contract price paid by Mr. Canas at the time he abandoned
4171that project. In each instance, Respondent violated Section
4179489.129(1)(g)2., Florida Statutes (2004). Clear and convincing
4186evidence was provided to establish the violations.
419372. Counts V and X refer to the Canas and Gumapas jobs
4205respectively. Section 489.129(1)(m), Florida Statutes (2004),
4211allows the imposition of discipline for "Committing incompetency
4219or misconduct in the practice of contracting." In both jobs
4229Respondent committed misconduct in the practice of contracting in
4238the manner described in the facts. He took money from the
4249customers to accomplish the jobs. The jobs were not completed.
4259He avoided the customers in their attempt to gain his compliance
4270with the terms of their contract or agreement. His conduct led
4281to monetary loses on their part. Respondent violated Section
4290489.129(1)(m), Florida Statutes (2004), pertaining to Counts V
4298and X. Clear and convincing evidence was provided to establish
4308the violations.
431073. Count VIII in relation to the Gumapas job, refers to
4321Section 489.129(1)(j), Florida Statutes (2004). That provision
4328allows discipline for:
4331Abandoning a construction project in which
4337the contractor is engaged or under contract
4344as a contractor. A project may be presumed
4352abandoned after 90 days if the contractor
4359terminates the project without just cause or
4366without proper notification to the owner,
4372including the reason for termination, or
4378fails to perform work without just cause for
438690 consecutive days.
4389Respondent abandoned the Gumapas construction project in which he
4398was engaged. Within the meaning of that provision he did not
4409have just cause. He did not properly notify Mr. Gumapas, and he
4421had failed to perform on the job for 90 consecutive days.
4432Respondent violated Section 489.129(1)(j), Florida Statutes
4438(2004). Clear and convincing evidence was provided to establish
4447this violation.
444974. When considering the imposition of penalties for the
4458violations established, the Board may act in accordance with the
4468authority set forth in Section 489.129, Florida Statutes (2004),
4477and Section 455.227(2), Florida Statutes (2004). The latter
4485provision reflects a similar approach to discipline compared to
4494the former.
449675. Section 455.2273, Florida Statutes (2004), makes it
4504incumbent upon the board to establish rules disciplinary
4512guidelines pertaining to disciplinary matters and obligates the
4520administrative law judge in recommending penalties to follow
4528those penalty guidelines established by the Board.
453576. Florida Administrative Code Rule 61G4-17.001 establishes
4542guidance for penalties to be imposed for violations that have been
4553proven in this case. It describes the normal ranges of
4563punishment. Consistent with the discussion reflected in the
4571matrix established by the aforementioned rule for imposition of
4580penalties from a minimum to a maximum and Florida Administrative
4590Code Rule 61G4-17.003, in relation to first offenses and repeat
4600offenses, the Canas violations are considered first offenses and
4609the Gumapas violations are considered repeat offenses.
4616Pertaining to Count VIII, the Gumapas job, it is considered a
4627first offense. No administrative fine is recommended that would
4636be in excess of $5,000.00 per violation as allowed by rule. To
4649do so would be to act contrary to the boundaries established by
4661the Legislature, when at Sections 455.227(2) and 489.129(1),
4669Florida Statutes (2004), it did not allow the imposition of an
4680administrative fine that would exceed $5,000.00 per violation.
468977. According to Petitioner's Exhibit A8, Respondent has
4697been fined before in an unspecified amount. The earlier action
4707taken against Respondent's certificate has been considered in
4715recommending punishment.
471778. In determining punishment, resort is made to Florida
4726Administrative Code Rule 61G4-17.002, pertaining to aggravating
4733and mitigating circumstances. Respondent has been fined before.
4741There were monetary damages suffered by the customers that were
4751not satisfied by Respondent. The punishment would affect
4759Respondent's livelihood, assuming that he continues at present to
4768hold his certified general contractor's license.
4774RECOMMENDATION
4775Upon consideration of the facts found and the conclusions of
4785law reached, it is indent
4790RECOMMENDED:
4791That a final order be entered finding Respondent in
4800violation of those provisions reflected in Counts I through X of
4811the Administrative Complaint; imposing a $1,000.00 administrative
4819fine for violation of Count I; a $1,000.00 administrative fine
4830for violation of Count II; a $1,500.00 administrative fine for
4841violation of Count VI; a $500.00 administrative fine for
4850violation of Count III; a $1,000.00 administrative fine for
4860violation of Count VII; a $1,500.00 administrative fine for
4870violation of Count IV; a $3,000.00 administrative fine for
4880violation of Count IX; a $2,500.00 administrative fine for
4890violation of Count V; a $5,000.00 administrative fine for
4900violation of Count X; and a $2,500.00 administrative fine for
4911violation of Count VIII; that Respondent be required to make
4921restitution to Mr. Canas and Mr. Gumapas as a consequence of the
4933violations; and that Respondent's certified general contractor
4940certificate/license be revoked, to the extent that it is still in
4951existence.
4952DONE AND ENTERED this 14th day of August, 2007, in
4962Tallahassee, Leon County, Florida.
4966S
4967CHARLES C. ADAMS
4970Administrative Law Judge
4973Division of Administrative Hearings
4977The DeSoto Building
49801230 Apalachee Parkway
4983Tallahassee, Florida 32399-3060
4986(850) 488-9675 SUNCOM 278-9675
4990Fax Filing (850) 921-6847
4994www.doah.state.fl.us
4995Filed with the Clerk of the
5001Division of Administrative Hearings
5005this 14th day of August, 2007.
5011COPIES FURNISHED:
5013Michael B. Golen, Esquire
5017Department of Business and
5021Professional Regulation
5023Northwood Centre
50251940 North Monroe Street
5029Tallahassee, Florida 32399-0792
5032Richard Steven Rhodes
50351964 Beachside Court
5038Atlantic Beach, Florida 32233
5042G. W. Harrell, Executive Director
5047Construction Industry Licensing Board
5051Department of Business and
5055Professional Regulation
5057Northwood Centre
50591940 North Monroe Street
5063Tallahassee, Florida 32399-0792
5066Ned Luczynski, General Counsel
5070Department of Business and
5074Professional Regulation
5076Northwood Centre
50781940 North Monroe Street
5082Tallahassee, Florida 32399-0792
5085NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5091All parties have the right to submit written exceptions within
510115 days from the date of this recommended order. Any exceptions
5112to this recommended order should be filed with the agency that
5123will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 08/30/2007
- Proceedings: (Respondent`s) Exceptions to the Recommended Order (signed) filed.
- PDF:
- Date: 08/29/2007
- Proceedings: (Respondent`s) Exceptions to the Recommended Order (unsigned) filed.
- PDF:
- Date: 08/14/2007
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 06/26/2007
- Proceedings: CASE STATUS: Hearing Held.
Case Information
- Judge:
- CHARLES C. ADAMS
- Date Filed:
- 04/10/2007
- Date Assignment:
- 04/10/2007
- Last Docket Entry:
- 02/14/2008
- Location:
- Jacksonville, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Michael Bryan Golen, Esquire
Address of Record -
Richard Steven Rhodes
Address of Record