07-005536PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Geoffrey C. Gill
 Status: Closed
Recommended Order on Tuesday, June 10, 2008.


View Dockets  
Summary: Respondent found guilty of a myriad of infractions.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 07-5536PL

31)

32GEOFFREY C. GILL, )

36)

37Respondent. )

39)

40RECOMMENDED ORDER

42Pursuant to notice, a final hearing was held in this case

53on April 16, 2008, by Jeff B. Clark, duly-designated

62Administrative Law Judge of the Division of Administrative

70Hearings, in Orlando, Florida.

74APPEARANCES

75For Petitioner: Arthur S. Barksdale, IV, Esquire

82Wright, Fulford, Moorehead & Brown, P.A.

88145 North Magnolia Avenue

92Orlando, Florida 32801

95For Respondent: No appearance

99STATEMENT OF THE ISSUE

103Whether disciplinary action should be taken against

110Respondent's contracting license based on the violations as

118charged in the Administrative Complaint in this proceeding.

126PRELIMINARY STATEMENT

128On September 25, 2007, Petitioner, Department of Business

136and Professional Regulation, Construction Industry Licensing

142Board, filed an Administrative Complaint alleging that

149Respondent, Geoffrey C. Gill, d/b/a Transflorida Corporation,

156had violated the laws regulating his professional activities as

165a certified contractor in the State of Florida. The

174Administrative Complaint charged Respondent with violating

180Subsection 489.129(1)(i), Florida Statutes (2006), 1/ by failing

188to apply for the necessary permits after receiving, as initial

198payment, money totaling more than ten percent of the contract

208price for repair, restoration, improvement, or construction to

216residential real property, in violation of Subsection

223489.126(2)(a), Florida Statutes; violating Subsection

228489.129(1)(g)(2), Florida Statutes, by committing mismanagement

234or misconduct in the practice of contracting that causes

243financial harm to a customer, which occurs when the contractor

253has abandoned a customer's job and the percentage of completion

263is less than the percentage of the total contract price paid to

275the contractor as of the time of abandonment, unless the

285contractor is entitled to retain such funds under the terms of

296the contract or refunds the excess funds within 30 days after

307the date the job is abandoned; violating Subsection

315489.129(1)(j), Florida Statutes, by abandoning a construction

322project in which the contractor is engaged or under contract as

333a contractor; and violating Subsection 489.129(1)(m), Florida

340Statutes, by committing incompetence or misconduct in the

348practice of contracting.

351On October 31, 2007, Respondent filed an Answer to

360Administrative Complaint that disputed some allegations

366contained in the Administrative Complaint, effectively electing

373to have a formal administrative hearing. The case was

382transferred to the Division of Administrative Hearings by letter

391dated December 7, 2007, that requested a hearing pursuant to

401Subsection 120.57(1), Florida Statutes.

405An Initial Order was forwarded to the parties on the same

416day, December 7, 2007. Based on the joint response, the case

427was scheduled for final hearing in Orlando, Florida, on

436February 1, 2008. On February 7, 2008, Respondent requested a

446continuance that was granted on February 8, 2008. The case was

457rescheduled for final hearing April 16, 2008.

464The final hearing took place as rescheduled. Respondent

472did not appear. Petitioner offered the testimony of one

481witness, Peter Cali, and introduced eight exhibits, which were

490entered into evidence and marked Petitioner's Exhibits 1

498through 8.

500The Transcript was filed on May 7, 2008. Petitioner timely

510filed a Proposed Recommended Order.

515FINDINGS OF FACT

518Based on the evidence and testimony of the witnesses

527presented and the entire record in this proceeding, the

536following Findings of Fact are made:

5421. Respondent is a certified contractor, having been

550issued License No. CGC 1506923 by the Florida Construction

559Industry Licensing Board. Respondent's licensure as a certified

567general contractor is "Current, Active."

5722. Respondent is the primary qualifying agent for his

581company, Transflorida Corporation, which has a Certificate of

589Authority as a Contractor Qualified Business, License

596No. QB 29658; that licensure is "Current."

6033. On or about July 3, 2006, Peter Cali entered into a

615written contractual agreement with Respondent, d/b/a

621Transflorida Corporation, for the construction of an addition to

630his residence at 2103 Lake Pickett Road, Orlando Florida.

6394. The original contract price between Respondent and

647Mr. Cali was $60,000.00.

6525. On July 3, 2006, Mr. Cali paid a total of $30,000.00 to

666Respondent.

6676. Respondent delivered some bricks to the Cali residence

676and had the septic tank pumped out.

6837. With the exception of the foregoing, Respondent failed

692to accomplish any meaningful work on the project. Respondent

701abandoned the project.

7049. Mr. Cali telephoned Respondent repeatedly requesting

711that Respondent perform the construction as agreed. Mr. Cali

720did nothing to inhibit Respondent's performance of the

728construction contract.

73010. Although requested, Respondent did not refund any

738money to Mr. Cali. Mr. Cali did not benefit as a result of the

752delivery of the bricks or the pumping of the septic tank.

763Mr. Cali's "out of pocket" damages are $30,000.00.

77211. Petitioner's total investigative cost for the case is

781$701.63.

78212. Respondent has been the subject of seven final orders

792revoking his professional license and fining him a total

801$230,000.00. 2/

804CONCLUSIONS OF LAW

80713. The Division of Administrative Hearings has

814jurisdiction over the parties and subject matter of this

823proceeding pursuant to Section 120.57 , Florida Statutes (2007).

83114. Petitioner is the state agency charged with regulating

840the practice of contracting pursuant to Chapters 455 and 489,

850Florida Statutes.

85215. Pursuant to Section 489.129, Florida Statutes, the

860Florida Construction Industry Licensing Board is empowered to

868revoke, suspend, or otherwise discipline the license of a

877contractor who is found guilty of any of the prohibited acts

888enumerated in Subsection 489.129(1), Florida Statutes.

89416. Petitioner has the burden of proving by clear and

904convincing evidence the allegations against Respondent alleged

911in the Administrative Complaint. Department of Banking and

919Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

931Ferris v. Turlington , 510 So. 2d. 292 (Fla. 1987). Evans

941Packing Co. v. Department of Agriculture and Consumer Services ,

950550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA 1989), provides the

963guidance regarding the clear and convincing evidence standard.

971That standard has been described as follows:

978Clear and convincing evidence requires that

984the evidence must be found to be credible;

992the facts to which the witnesses testify

999must be distinctly remembered; the evidence

1005must be precise and explicit and the

1012witnesses must be lacking in confusion as to

1020the facts in issue. The evidence must be of

1029such weight that it produces in the mind of

1038the trier of fact the firm belief of (sic)

1047conviction, without hesitancy, as to the

1053truth of the allegations sought to be

1060established. Slomowitz v. Walker , 429

1065So. 2d 797, 800 (Fla. 4th DCA 1983).

107317. The Administrative Complaint alleges that Respondent

1080is guilty of having violated Subsection 489.129(1)(i), Florida

1088Statutes, by failing to comply with Subsection 489.126(2),

1096Statutes.

109718. Subsection 489.129(1), Florida Statutes, provides, in

1104pertinent part:

1106The Board may take any of the following

1114actions against any certificateholder or

1119registrant: place on probation or reprimand

1125the licensee, revoke, suspend, or deny the

1132issuance or renewal of the certificate,

1138registration, or certificate of authority,

1143require financial restitution to a consumer

1149for financial harm directly related to a

1156violation of a provision of this part,

1163impose an administrative fine not to exceed

1170$10,000 per violation, require continuing

1176education, or assess costs associated with

1182investigation and prosecution, if the

1187contractor . . . or business organization

1194for which the contractor is a primary

1201qualifying agent . . . is found guilty of

1210any of the following acts:

1215* * *

1218(g) Committing mismanagement or

1222misconduct in the practice of contracting

1228that causes financial harm to a customer.

1235Financial mismanagement or misconduct occurs

1240when:

1241* * *

12442. The contractor has abandoned a

1250customer's job and the percentage of

1256completion is less than the percentage of

1263the total contract price paid to the

1270contractor as of the time of abandonment,

1277unless the contractor is entitled to retain

1284such funds under the terms of the contract

1292or refunds the excess funds within 30 days

1300after the date the job is abandoned; or

1308* * *

1311(j) Abandoning a construction project in

1317which the contractor is engaged or under

1324contract as a contractor. A project may be

1332presumed abandoned after 90 days if the

1339contractor terminates the project without

1344just cause or without proper notification to

1351the owner, including the reason for

1357termination, or fails to perform work

1363without just cause for 90 consecutive days.

1370* * *

1373(m) Committing incompetency or misconduct

1378in the practice of contracting.

1383* * *

1386(o) Proceeding on any job without

1392obtaining applicable building department

1396permits and inspections.

139919. Subsection 489.126(2)(a), Florida Statutes, provides,

1405in pertinent part:

1408(2) A contractor who receives, as initial

1415payment, money totaling more than 10 percent

1422of the contract price for repair,

1428restoration, improvement, or construction to

1433residential real property must:

1437(a) Apply for permits necessary to do work

1445within 30 days after the date payment is

1453made, except where the work does not require

1461a permit under the applicable codes and

1468ordinances . . . .

147320. Petitioner has failed to prove by clear and convincing

1483evidence that Respondent violated Subsection 489.126(2)(a),

1489Florida Statutes. No evidence was presented regarding

1496permitting.

149721. Petitioner has proven by clear and convincing evidence

1506that Respondent violated Subsection 489.129(1)(g)2., Florida

1512Statutes, by establishing that Respondent abandoned the contract

1520with Mr. Cali and that no meaningful work was performed by

1531Respondent, thereby causing financial harm to Mr. Cali. This

1540occurred when Respondent failed to initiate any meaningful work

1549on the project. Having performed no meaningful work, Respondent

1558was not entitled to retain any funds paid by Mr. Cali under the

1571terms of the contract and did not refund the funds within 30

1583days after the date the job was abandoned.

159122. Petitioner has proven by clear and convincing evidence

1600that Respondent violated of Subsection 489.129(1)(j), Florida

1607Statutes, by abandoning the project under which Respondent was

1616engaged or under contract as a contractor with Mr. Cali. A

1627project may be presumed abandoned after 90 days if the

1637contractor terminates the project without just cause or without

1646proper notification to the owner, including reason for

1654termination, or fails to perform work without just cause for

166490 consecutive days.

166723. Petitioner has proven by clear and convincing evidence

1676that Respondent has violated Subsection 489.129(1)(m), Florida

1683Statutes, by committing misconduct in the practice of

1691contracting, by abandoning the contract, and causing financial

1699harm to his customer.

170324. Respondent is subject to disciplinary action by the

1712Construction Industry Licensing Board pursuant to Sections

1719455.227 and 489.129, Florida Statutes. The disciplinary actions

1727under these statutes includes p l a c i n g t h e l i c e n s e e o n p r o b a t i o n ;

1760reprimanding the lice nsee; revoking, suspending, an d denying the

1770issuance or rene wal of the certif icate or registra tion; requiring

1782financial restitution to the consumer; im posing an ad ministrative

1792fine not to exceed $1 0,000 per violat ion; and requir ing continuing

1806education and asse ssing costs asso ciated with in vestigation and

1817prosecution.

181825. Subsection 455.2273(5), Florida Statutes, states the

1825Administrative Law Judge, in recommending penalties in any

1833recommended order, must follow the penalty guidelines

1840established by the board or department and must state in writing

1851the mitigating or aggravating circumstances upon which the

1859recommended penalty is based.

186326. Florida Administrative Code Rule 61G4-17.002 provides,

1870in pertinent part, the following:

1875Circumstances which may be considered for

1881the purposes of mitigation or aggravation of

1888penalty shall include, but are not limited

1895to, the following:

1898(1) Monetary or other damage to the

1905licensee's customer, in any way associated

1911with the violation, which damage the

1917licensee has not relieved, as of the time

1925the penalty is be assessed. (This provision

1932shall not be given effect to the extent it

1941would contravene federal bankruptcy law.)

1946(2) Actual job-site violations of

1951building codes, or conditions exhibiting

1956gross negligence, incompetence, or

1960misconduct by the licensee, which have not

1967been corrected as of the time the penalty is

1976being assessed.

1978(3) The danger to the public.

1984(4) The number of complaints filed

1990against the licensee.

1993(5) The length of time the licensee has

2001practiced.

2002(6) The actual damage, physical or

2008otherwise, to the licensee's customer.

2013(7) The deterrent effect of the penalty

2020imposed.

2021(8) The effect of the penalty upon the

2029licensee's livelihood.

2031(9) Any efforts at rehabilitation.

2036(10) Any other mitigating or aggravating

2042circumstances.

204327. Florida Administrative Code Rule 61G4-17.001,

2049provides, in pertinent part, the following guidelines that are

2058pertinent to this proceeding:

2062(1) The following guidelines shall be

2068used in disciplinary cases, absent

2073aggravating or mitigating circumstances and

2078subject to other provisions of this chapter.

2085* * *

2088(g) Section 489.129(1)(g), F.S.:

2092Mismanagement or misconduct causing

2096financial harm to the customer. First

2102violation, $1,500 to $2,500 fine,

2109restitution and/or probation; repeat

2113violation, $2,500 to $5,000 fine,

2120restitution and suspension or revocation.

2125* * *

2128(j) Section 489.129(1)(j), F.S.:

2132Abandonment. First violation $5,000 to

2138$1,000 fine and/or probation; repeat

2144violation, $5,000 fine and revocation.

2150* * *

2153(m) Misconduct or incompetency in the

2159practice of contracting, shall include, but

2165is not limited to:

2169* * *

21722. Violation of any provision of Chapter

217961G4, F.A.C., or Chapter 489, Part I, F.S.

2187* * *

21904. The following guidelines shall apply

2196to cases involving misconduct or

2201incompetency in the practice of contracting,

2207absent aggravating or mitigating

2211circumstances:

2212* * *

2215b. Violation of any provision of Chapter

222261G4, F.A.C., or Chapter 489, Part I, F.S.

2230First violation, $1,000 to $2,500 fine;

2238repeat violation, $2,500 to $5,000 fine and

2247suspension and revocation.

2250c. Any other form of misconduct or

2257incompetency. First violation, $500 to

2262$1,000 fine and probation; repeat violation,

2269$1,000 to $5,000 fine and suspension or

2278revocation. . . .

228228. There is evidence that Respondent has been previously

2291disciplined for many violations under Chapter 489, Florida

2299Statutes, therefore, the guidelines that should be used are for

2309repeat violation.

2311RECOMMENDATION

2312Based on the foregoing Findings of Fact and Conclusions of

2322Law, it is

2325RECOMMENDED that a final order be entered as follows:

23341. Finding Respondent guilty of having committed one

2342violation of Subsection 489.129(1)(g)2., Florida Statutes, as

2349alleged in Count II of the Administrative Complaint, and

2358imposing as a penalty an administrative fine in the amount of

2369$5,000.00;

23712. Finding Respondent guilty of having committed one

2379violation of Subsection 489.129(1)(j), Florida Statutes, as

2386alleged in Count III of the Administrative Complaint, and

2395imposing as a penalty an administrative fine in the amount of

2406$5,000.00;

24083. Finding Respondent guilty of having committed one

2416violation of Subsection 489.129(1)(m), Florida Statutes, as

2423alleged in Count IV of the Administrative Complaint, and

2432imposing as a penalty an administrative fine in the amount of

2443$5,000.00;

24454. Requiring Respondent to pay financial restitution in

2453the amount of $30,000.00 to Peter Cali;

24615. Assessing cumulative cost of investigation and

2468prosecution in the total amount of $701.63, which excludes costs

2478associated with any attorney's fees; and

24846. Permanently revoking Respondent's license as a result of

2493the numerous violations and the financial harm sustained by Peter

2503Cali.

2504DONE AND ENTERED this 10th day of June, 2008, in

2514Tallahassee, Leon County, Florida.

2518S

2519JEFF B. CLARK

2522Administrative Law Judge

2525Division of Administrative Hearings

2529The DeSoto Building

25321230 Apalachee Parkway

2535Tallahassee, Florida 32399-3060

2538(850) 488-9675 SUNCOM 278-9675

2542Fax Filing (850) 921-6847

2546www.doah.state.fl.us

2547Filed with the Clerk of the

2553Division of Administrative Hearings

2557this 10th day of June, 2008.

2563ENDNOTES

25641/ All references are to 2006 Florida Statutes, unless otherwise

2574indicated.

25752/ Petitioner's Exhibit 1, affidavits of the Construction

2583Industry Licensing Board's records custodian dated February 11,

25912008, indicated a "Current, Active" status regarding

2598Respondent's license. Petitioner's Exhibit 2, Seven

2604Construction Industry Licensing Board Final Orders, each dated

2612March 11, 2008, revoke Respondent's license.

2618COPIES FURNISHED :

2621Arthur S. Barksdale, IV, Esquire

2626Wright, Fulford, Moorhead & Brown, P.A.

2632145 North Magnolia Avenue

2636Orlando, Florida 32801

2639Randall L. Gilbert, Esquire

2643Gilbert & Kaufman, P.A.

26471720 Harrison Street, Penthouse B

2652Hollywood, Florida 33020

2655G. W. Harrell, Executive Director

2660Construction Industry Licensing Board

2664Department of Business and

2668Professional Regulation

26701940 North Monroe Street

2674Tallahassee, Florida 32399-0792

2677Ned Luczynski, General Counsel

2681Department of Business and

2685Professional Regulation

26871940 North Monroe Street

2691Tallahassee, Florida 32399-0792

2694NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2700All parties have the right to submit written exceptions within

271015 days from the date of this Recommended Order. Any exceptions

2721to this Recommended Order should be filed with the agency that

2732will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/10/2008
Proceedings: Recommended Order
PDF:
Date: 06/10/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/10/2008
Proceedings: Recommended Order (hearing held April 16, 2008). CASE CLOSED.
PDF:
Date: 05/16/2008
Proceedings: (Petitioner`s) Proposed Recommended Order filed.
Date: 05/07/2008
Proceedings: Transcript filed.
PDF:
Date: 04/16/2008
Proceedings: Notice of Filing filed.
Date: 04/16/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/20/2008
Proceedings: Order Re-scheduling Hearing (hearing set for April 16, 2008; 9:00 a.m.; Orlando, FL).
PDF:
Date: 03/17/2008
Proceedings: Joint Response to Order Granting Continuance to Advise Status filed.
PDF:
Date: 03/11/2008
Proceedings: Response to Order Granting Continuance to Advise Status filed.
PDF:
Date: 03/10/2008
Proceedings: Order Granting Extension of Time (parties to advise of status by March 17, 2008).
PDF:
Date: 03/07/2008
Proceedings: Notice of Appearance and Request for an Extension of Time filed.
PDF:
Date: 02/08/2008
Proceedings: Order Granting Motion to Withdraw as Counsel.
PDF:
Date: 02/08/2008
Proceedings: Order Granting Continuance (parties to advise status by March 10, 2008).
Date: 02/08/2008
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 02/07/2008
Proceedings: (Proposed) Order Granting Motion to Withdraw filed.
PDF:
Date: 02/07/2008
Proceedings: Answers to Interrogatories filed.
PDF:
Date: 02/07/2008
Proceedings: Notice of Serving Unverified Answers to Interrogatories filed.
PDF:
Date: 02/07/2008
Proceedings: Response to Request for Production of Documents filed.
PDF:
Date: 02/07/2008
Proceedings: Response to First Request for Admissions filed.
PDF:
Date: 02/07/2008
Proceedings: Motion for Continuance filed.
PDF:
Date: 02/07/2008
Proceedings: Letter to Judge Harrell from G. Butler regarding Motion to Withdraw filed.
PDF:
Date: 02/05/2008
Proceedings: Motion to Withdraw as Counsel filed.
PDF:
Date: 02/05/2008
Proceedings: Subpoena ad Testificandum (Return of Service) (P. Cali) filed.
PDF:
Date: 02/01/2008
Proceedings: Petitioner`s Motion for Summary Final Order, or in the Alternative Petitioner`s Motion to Relinquish Jurisdiction filed.
PDF:
Date: 02/01/2008
Proceedings: Motion to Compel Discovery, Taxing Attorney`s Fees and Costs filed.
PDF:
Date: 02/01/2008
Proceedings: Defendant`s Exhibit & Witness List filed.
PDF:
Date: 02/01/2008
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 01/28/2008
Proceedings: Notice of Appearance (filed by A. Barksdale).
PDF:
Date: 12/28/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 12/28/2007
Proceedings: Notice of Hearing (hearing set for February 11, 2008; 9:00 a.m.; Orlando, FL).
PDF:
Date: 12/27/2007
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 12/27/2007
Proceedings: Petitioner`s First Request for Production to Respondent filed.
PDF:
Date: 12/27/2007
Proceedings: Petitioner`s First Request for Admissions to Respondent filed.
PDF:
Date: 12/20/2007
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 12/07/2007
Proceedings: Initial Order.
PDF:
Date: 12/07/2007
Proceedings: Election of Rights filed.
PDF:
Date: 12/07/2007
Proceedings: Respondent Geoffrey C. Gill`s Answer filed.
PDF:
Date: 12/07/2007
Proceedings: Administrative Complaint filed.
PDF:
Date: 12/07/2007
Proceedings: Referral Letter filed.

Case Information

Judge:
JEFF B. CLARK
Date Filed:
12/07/2007
Date Assignment:
04/10/2008
Last Docket Entry:
06/10/2008
Location:
Orlando, Florida
District:
Middle
Agency:
Department of Business and Professional Regulation
Suffix:
PL
 

Counsels

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