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.


View Dockets  
Summary: Respondent abandoned two jobs in violation of the statute.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/14/2008
Proceedings: Agency Final Order filed.
PDF:
Date: 02/13/2008
Proceedings: Agency Final Order
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
PDF:
Date: 08/14/2007
Proceedings: Recommended Order (hearing held June 26, 2007). CASE CLOSED.
PDF:
Date: 08/14/2007
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/28/2007
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 06/27/2007
Proceedings: Agency Exhibit A-13a filed.
Date: 06/26/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 06/19/2007
Proceedings: Petitioner`s Pre-hearing Statement filed.
PDF:
Date: 06/19/2007
Proceedings: Petitioner`s Motion to Have Witness Appear by Telephone filed.
PDF:
Date: 04/23/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/23/2007
Proceedings: Notice of Hearing by Video Teleconference (hearing set for June 26, 2007; 10:00 a.m.; Jacksonville and Tallahassee, FL).
PDF:
Date: 04/12/2007
Proceedings: Petitioner`s Response to Initial Order filed.
PDF:
Date: 04/10/2007
Proceedings: Initial Order.
PDF:
Date: 04/10/2007
Proceedings: Administrative Complaint filed.
PDF:
Date: 04/10/2007
Proceedings: Election of Rights filed.
PDF:
Date: 04/10/2007
Proceedings: Agency referral filed.

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

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Related Florida Statute(s) (11):

Related Florida Rule(s) (3):