08-002398PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Gaetan Malschalck
 Status: Closed
Recommended Order on Wednesday, August 27, 2008.


View Dockets  
Summary: Respondent is liable for abandonment of project undertaken by company for which he was the primary qualifying agent. Recommend a penalty including a two-year license suspension, a $7,500 fine, and payment of restitution to aggrieved homeowners.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY )

19LICENSING BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 08-2398PL

31)

32GAETAN MALSCHALCK, )

35)

36Respondent. )

38__________________________________)

39RECOMMENDED ORDER

41Pursuant to notice, a hearing was conducted in this case

51pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

60before Stuart M. Lerner, a duly-designated Administrative Law

68Judge of the Division of Administrative Hearings (DOAH), on

77July 17, 2008, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.

92APPEARANCES

93For Petitioner: Brian P. Coats, Esquire

99Department of Business and

103Professional Regulation

1051940 North Monroe Street

109Tallahassee, Florida 32399-2202

112For Respondent: No Appearance

116STATEMENT OF THE ISSUE

120Whether Respondent committed the violations alleged in the

128Administrative Complaint and, if so, what disciplinary action

136should be taken.

139PRELIMINARY STATEMENT

141In December 2007, Petitioner issued a four-count

148Administrative Complaint alleging that Respondent, in his

155capacity as the primary qualifying agent for GM General

164Contractor, Inc. (GGC), engaged in disciplinable wrongdoing in

172connection with a residential construction project undertaken by

180GGC pursuant to a contract with Assad and Millicent Thompson.

190Count I alleged that Respondent committed "mismanagement or

198misconduct in the practice of contracting that cause[d]

206financial harm to a customer," in violation of Section

215489.129(1)(g)2., Florida Statutes. Count II alleged that

"222Respondent violated Section 489.129(1)(j), Florida Statutes, by

229abandoning the construction project." Count III alleged that

"237Respondent violated Section 489.129(1)(o), Florida Statutes, by

244failing to obtain the necessary permits, pass all inspections

253and finalize the necessary permits." Count IV alleged that

"262Respondent violated Section 489.129(1)(m), Florida Statutes, by

269committing incompetence or mismanagement in the practice of

277contracting."

278By filing with Petitioner a completed "Election of Rights"

287form, Respondent requested a "Final Hearing before an

295Administrative Law Judge of the Division of Administrative

303Hearings." On May 19, 2008, the matter was referred to DOAH.

314The hearing that Respondent requested was scheduled for

322July 17, 2008. Petitioner and Respondent were provided with

331written notice of the hearing in accordance with Section

340120.569(2)(b), Florida Statutes. The notice was in the form of

350Notice of Hearing by Video Teleconference mailed May 29, 2008,

360to Petitioner's counsel of record and to Respondent .

369Petitioner appeared at the hearing, which was held as

378scheduled on July 17, 2008, through its counsel of record.

388Respondent, on the other hand, did not make an appearance at the

400hearing, either in person or through counsel or any other

410authorized representative.

412At the hearing, Petitioner presented the testimony of two

421witnesses: Brad Brown of the Palm Beach County Planning, Zoning,

431and Building Department; and Millicent Thompson. In addition, it

440offered into evidence 15 exhibits (Petitioner's Exhibits 1

448through 11, 13, 14, 16, and 17). All of these exhibits were

460admitted.

461At the close of the taking of evidence, the undersigned

471established a deadline (15 days from the date of the filing with

483DOAH of the hearing transcript) for the filing of proposed

493recommended orders.

495The Transcript of the hearing (consisting of one volume) was

505filed with DOAH on August 11, 2008.

512Petitioner filed its Proposed Recommended Order on

519August 8, 2008. To date, Respondent has not filed any post-

530hearing submittal.

532FINDINGS OF FACT

535Based on the evidence adduced at hearing, and the record as

546a whole, the following findings of fact are made:

5551. Respondent is now, and has been at all times material

566to the instant case, a Florida-licensed roofing contractor and

575general contractor. He received his roofing contractor's

582license on August 10, 2004, and his general contractor's license

592on October 13, 2005.

5962. At all times material to the instant case, GGC has held

608a certificate of authority authorizing it to engage in

617contracting in Florida through a qualifying agent.

6243. At all times material to the instant case, Respondent

634has been the primary qualifying agent for GGC.

6424. On January 5, 2007, GGC, through Respondent, entered

651into a written contract with Assad and Millicent Thompson,

660agreeing, for $37,135.00, to construct a rear porch lanai

670addition to the Thompsons' single family home in Royal Palm

680Beach, Florida (Project).

6835. The Thompsons paid GGC (by check) $11,140.50 at the

694time they entered into the contract. They made three subsequent

704payments to GGC (by check) totaling $21,232.50. The last of

715these payments was made on or about April 17, 2007.

7256. On January 9, 2007, GGC, through Respondent, applied

734for a permit from the Palm Beach County Planning, Zoning, and

745Building Department to perform the work it had agreed to do on

757the Thompsons' home. The permit was subsequently issued.

7657. In or around March of 2007, GGC began work on the

777Project.

7788. Dissatisfied with the progress GGC was making on the

788Project, the Thompsons, on June 5, 2007, sent the following

798letter to Respondent:

801With reference to the delay in completing

808the above construction, we are writing to

815request your immediate attention.

819We would like to know specifically:

825- The reason for the delay[.]

831- Your intention in writing as to your

839estimated time of completion of [the]

845specified project.

847Please note we have not physically seen you

855since April 19, 2007. We understand that

862inspection of the roof on May 10th resulted

870in certain violations and as per your

877conversation with Assad [Mr. Thompson] (when

883he called you on May 20th), you had problems

892contacting the Engineer. Please note that

898his name, telephone and fax are clearly

905indicated on the plan[s]. Per telephone

911conversation with him, he has not heard from

919you recently. You have indicated impatience

925and anxiety on our part, quite frankly the

933patience of JOB would have run out long ago.

942The pile of rubbish is a breeding room for

951all kinds of creatures and has been a

959disgusting sight not only for us, but for

967our neighbors. The open roof has created a

975vulnerable situation for us and can only

982deteriorate as we are now in hurricane

989season.

990We urge you to contact us urgently with your

999plan of action.

10029. Not having received a written response from Respondent,

1011the Thompsons, on June 25, 2007, sent a follow-up letter to

1022Respondent, which read as follows

1027We note that you have ignored our previous

1035letter of June 5th and you have also failed

1044to honor your telephone promises of June 8th

1052and June 19th to proceed with

1058stucco/electric/rubbish removal etc. In

1062fact absolutely nothing has been done on

1069this job since May 18th. This is totally

1077unacceptable. We have arrangements in place

1083for use of the patio July 14th, cancellation

1091of which will result in serious

1097inconvenience for us.

1100Please be advised that if no progress is

1108made by June 30, 2007, we will be forced to

1118seek all measures at our disposal to have

1126the patio satisfactorily completed. We once

1132again request your urgent co-operation in

1138this matter.

114010. The next day, June 26, 2007, the Thompsons received a

1151letter from Respondent (sent by facsimile transmission)

1158acknowledging his receipt of the Thompsons' June 25, 2007,

1167letter. In his letter, Respondent explained that he was "in a

1178bad situation financially" due to circumstances "out of [his]

1187control" related to another project, and he asked the Thompsons

1197to "help [him] resolve[] this matter" by paying the "stucco man"

1208$1,000.00 for materials and an additional $1,000.00 "when [the

1219stucco work] was completed," as well as paying $400.00 for a

1230dumpster to be brought to the Project site (which payments would

1241go towards the monies the Thompsons had to pay for the Project

1253under their contract with GGC).

125811. The Thompsons wrote back to Respondent that same day

1268(June 26, 2007), advising him that they would pay for the

1279materials for the stucco work "upon presentation of the invoice,

1289then pay $1,000 for the job on completion as [Respondent had]

1301requested," and that they also would "pay the dumpster charges

1311on completion of the clean-up."

131612. Ernest Joseph was the "stucco man" that GGC sent to

1327the Thompsons' home to work on the Project. He last worked on

1339the Project in mid-July 2007. The Thompsons paid Mr. Joseph (by

1350check) a total of $2,000.00 for labor and materials. They also

1362paid Onyx Waste Services (by check) $416.91 to have a dumpster

1373brought to the Project site.

137813. Neither GGC, nor anyone acting on its behalf, did any

1389work on the Project after Mr. Joseph left the site in mid-July

14012007. The Project was incomplete when the work ceased. 2

141114. GGC provided the Thompsons no explanation for the

1420stoppage. In fact, the Thompsons did not hear from GGC at all.

143215. The Thompsons were anxious for the Project to be

1442completed, and they did nothing to prevent GGC from

1451accomplishing this objective.

145416. After more than 90 consecutive days had passed without

1464any work having been done on the Project, the Thompsons hired

1475another contractor to finish the Project.

148117. The Project was ultimately completed.

148718. The Thompsons paid $17,540.00 for the additional work

1497that was necessary to complete the Project.

150419. The total amount that the Thompsons paid for the

1514Project was $52,329.91 ($32,373 to GGC; $2,000 to Mr. Joseph;

1527$416.91 to Onyx Waste Services; and $17,540.00 to finish the

1538work GGC had failed to do). This was $15,194.91 more than the

1551contract price.

155320. Petitioner has incurred a total of $182.90 in

1562investigative and prosecutorial costs in connection with the

1570instant case (excluding costs associated with any attorney's

1578time).

1579CONCLUSIONS OF LAW

158221. DOAH has jurisdiction over the subject matter of the

1592instant proceeding and of the parties hereto pursuant to Chapter

1602120, Florida Statutes.

160522. No "person" 3 may engage in the business of contracting

1616in Florida without holding a valid license to do so.

1626§ 489.115(1), Fla. Stat.

163023. A business organization, like GGC, may obtain such a

1640license, but only through a licensed "qualifying agent."

1648§ 489.119, Fla. Stat.; see also Murthy v. N. Sinha Corp. , 644

1660So. 2d 983, 984 n.1 (Fla. 1994)("Chapter 489 requires a

1671corporation or other business entity seeking to become a

1680contractor to procure an individual licensed contractor as its

1689qualifying agent."); and Shimkus v. Department of Business and

1699Professional Regulation, Construction Industry Licensing Board ,

1705932 So. 2d 223, 223-224 (Fla. 4th DCA 2005)("The statute

1716[Section 489.119, Florida Statutes] requires corporations

1722engaged in construction to have licensed individuals serving as

1731their qualifying agents.").

173524. There are two types of "qualifying agents": "primary

1745qualifying agents," and "secondary qualifying agents."

1751§ 489.1195(1), Fla. Stat. At all times material to the instant

1762case, Respondent was the "primary qualifying agent" for GGC.

177125. "All primary qualifying agents for a business

1779organization are jointly and equally responsible for supervision

1787of all operations of the business organization; for all field

1797work at all sites; and for financial matters, both for the

1808organization in general and for each specific job."

1816§ 489.1195(1)(a), Fla. Stat.; see also § 489.105(4), Fla. Stat.

1826("'Primary qualifying agent' means a person who . . . has the

1839responsibility, to supervise, direct, manage, and control the

1847contracting activities of the business organization with which

1855he or she is connected; who has the responsibility to supervise,

1866direct, manage, and control construction activities on a job for

1876which he or she has obtained the building permit; . . . .").

"1890To allow a contractor to be the 'qualifying agent' for a

1901company without placing any requirement on the contractor to

1910exercise any supervision over the company's work done under his

1920license would permit a contractor to loan or rent his license to

1932the company. This would completely circumvent the legislative

1940intent that an individual, certified as competent, be

1948professionally responsible for supervising construction work on

1955jobs requiring a licensed contractor." Alles v. Department of

1964Professional Regulation , 423 So. 2d 624, 626 (Fla. 5th DCA

19741982).

197526. The Construction Industry Licensing Board (Board) may

1983take disciplinary action against a licensed contractor serving

1991as the "primary qualifying agent" for a business organization

2000for violations of Section 489.129(1), Florida Statutes,

2007committed by either "the contractor . . . or business

2017organization for which the contractor is a primary qualifying

2026agent." The contractor "may not avoid responsibility [for any

2035such violation] by stating that he had nothing to do with the

2047project" in connection with which the violation was committed.

2056Hunt v. Department of Professional Regulation, Construction

2063Industry Licensing Board , 444 So. 2d 997, 999 (Fla. 1st DCA

20741983); see also Camejo v. Department of Business and

2083Professional Regulation , 812 So. 2d 583, 584 (Fla. 3d DCA

20932002)("Camejo's defense in the disciplinary proceeding, and his

2102argument on appeal, is that he cannot be held accountable

2112pursuant to section 489.129, Florida Statutes (1999) for work

2121not performed, or poorly performed, pursuant to building permits

2130he never signed. We disagree. . . . Section 489.129 does not

2142carve out an exception for qualifying agents who fail to

2152maintain control over the use of their certificates. For this

2162court to do so by judicial fiat would weaken the authority of

2174the Construction Industry Licensing Board to govern the industry

2183and protect the public.").

218827. At the time of the alleged misconduct in the instant

2199case, the disciplinary action the Board was statutorily

2207authorized to take against a licensed contractor for a violation

2217of Section 489.129(1), Florida Statutes, was limited to the

2226following: revoking or suspending the contractor's license;

2233placing the contractor on probation; reprimanding the

2240contractor; denying the renewal of the contractor's license;

2248imposing an administrative fine not to exceed $10,000.00 per

2258violation; requiring financial restitution to the victimized

2265consumer(s); requiring the contractor to take continuing

2272education courses; and assessing costs associated with the

2280investigation and prosecution. See Childers v. Department of

2288Environmental Protection , 696 So. 2d 962, 964 (Fla. 1st DCA

22981997)("The version of a statute in effect at the time grounds

2310for disciplinary action arise controls."); and Department of

2319Environmental Regulation v. Puckett Oil Co. , 577 So. 2d 988, 992

2330(Fla. 1st DCA 1991)("[A]n agency possesses no inherent power to

2341impose sanctions, and . . . any such power must be expressly

2353delegated by statute.").

235728. The Board may take such disciplinary action only after

2367the licensee has been given reasonable written notice of the

2377charges and an adequate opportunity to request a proceeding

2386pursuant to Sections 120.569 and 120.57, Florida Statutes. See

2395§ 120.60(5), Fla. Stat.

239929. An evidentiary hearing must be held, if requested by

2409the licensee, when there are disputed issues of material fact.

2419§§ 120.569 and 120.57(1), Fla. Stat.

242530. At the hearing, the Department of Business and

2434Professional Regulation (Department) bears the burden of proving

2442that the licensee engaged in the conduct, and thereby committed

2452the violations, alleged in the charging instrument. Proof

2460greater than a mere preponderance of the evidence must be

2470presented by the Department to meet its burden of proof. Clear

2481and convincing evidence of the licensee's guilt is required. See

2491Department of Banking and Finance, Division of Securities and

2500Investor Protection v. Osborne Stern and Company , 670 So. 2d 932,

2511935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

2523based upon a preponderance of the evidence, except in penal or

2534licensure disciplinary proceedings or except as otherwise

2541provided by statute . . . .").

254931. Clear and convincing evidence is an "intermediate

2557standard," "requir[ing] more proof than a 'preponderance of the

2566evidence' but less than 'beyond and to the exclusion of a

2577reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

25881997). For proof to be considered "'clear and convincing' . . .

2600the evidence must be found to be credible; the facts to which

2612the witnesses testify must be distinctly remembered; the

2620testimony must be precise and explicit and the witnesses must be

2631lacking in confusion as to the facts in issue. The evidence

2642must be of such weight that it produces in the mind of the trier

2656of fact a firm belief or conviction, without hesitancy, as to

2667the truth of the allegations sought to be established." In re

2678Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

2689from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

27011983); see also In re Adoption of Baby E. A. W. , 658 So. 2d 961,

2716967 (Fla. 1995)("The evidence [in order to be clear and

2727convincing] must be sufficient to convince the trier of fact

2737without hesitancy."). "Although this standard of proof may be

2747met where the evidence is in conflict, . . . it seems to

2760preclude evidence that is ambiguous." Westinghouse Electric

2767Corporation, Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 989

2778(Fla. 1st DCA 1991).

278232. In determining whether the Department has met its

2791burden of proof, it is necessary to evaluate its evidentiary

2801presentation in light of the specific allegations of wrongdoing

2810made in the charging instrument. Due process prohibits an

2819agency from taking penal action against a licensee based on

2829matters not specifically alleged in the charging instrument,

2837unless those matters have been tried by consent. See Trevisani

2847v. Department of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA

28592005); Aldrete v. Department of Health, Board of Medicine , 879

2869So. 2d 1244, 1246 (Fla. 1st DCA 2004); and Shore Village

2880Property Owners' Association, Inc. v. Department of

2887Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

28972002).

289833. The charging instrument in the instant case, the

2907Administrative Complaint, contains four counts: Count I,

2914alleging a violation of Section 489.129(1)(g)2, Florida

2921Statutes; Count II, alleging a violation of Section

2929489.129(1)(j), Florida Statutes; Count III, alleging a violation

2937of Section 489.129(1)(o), Florida Statutes; and Count IV,

2945alleging a violation of Section 489.129(1)(m), Florida Statutes.

295334. At all times material to the instant case, Section

2963that the following were disciplinable acts:

2969(g) Committing mismanagement or misconduct

2974in the practice of contracting that causes

2981financial harm to a customer. Financial

2987mismanagement or misconduct occurs when:

2992* * *

29952. The contractor has abandoned a

3001customer's job and the percentage of

3007completion is less than the percentage of

3014the total contract price paid to the

3021contractor as of the time of abandonment,

3028unless the contractor is entitled to retain

3035such funds under the terms of the contract

3043or refunds the excess funds within 30 days

3051after the date the job is abandoned; or

3059* * *

3062(j) Abandoning a construction project in

3068which the contractor is engaged or under

3075contract as a contractor. A project may be

3083presumed abandoned after 90 days if the

3090contractor terminates the project without

3095just cause or without proper notification to

3102the owner, including the reason for

3108termination, or fails to perform work

3114without just cause for 90 consecutive days.

3121* * *

3124(o) Proceeding on any job without obtaining

3131applicable local building department permits

3136and inspections.

3138* * *

3141(m) Committing incompetency or misconduct

3146in the practice of contracting.

315135. At all times material to the instant case, Florida

3161Administrative Code Rule 61G4-17.001(1)(m)2. provided that

"3167[m]isconduct or incompetency in the practice of contracting,

3175shall include, but is not limited to: Violation of any

3185provision of . . . Chapter 489, Part I., F.S."

319536. Because of their penal nature, the foregoing statutory

3204and rule provisions must be strictly construed, with any

3213reasonable doubts as to their meaning being resolved in favor of

3224the licensee. See Camejo v. Department of Business and

3233Professional Regulation , 812 So. 2d 583, 583-584 (Fla. 3d DCA

32432002)("'Statutes such as those at issue authorizing the

3252imposition of discipline upon licensed contractors are in the

3261nature of penal statutes, which should be strictly

3269construed.'"); and Jonas v. Florida Department of Business and

3279Professional Regulation , 746 So. 2d 1261, 1262 (Fla. 3d DCA

32892000)(same).

329037. The Department proved by clear and convincing evidence

3299that, as alleged in Count II of the Administrative Complaint,

3309GGC committed a violation of Section 489.129(1)(j), Florida

3317Statutes, for which Respondent, as GGC's "primary qualifying

3325agent," was responsible, by failing to perform work on the

3335Project without just cause for in excess of 90 consecutive days.

334638. Through the same proof that clearly and convincingly

3355established the violation of Section 489.129(1)(j), Florida

3362Statutes, alleged in Count II of the Administrative Complaint,

3371the Department also clearly and convincingly established the

3379derivative violation of Section 489.129(1)(m), Florida Statutes,

3386alleged in Count IV of the Administrative Complaint. This

3395violation of Section 489.129(1)(m), however, is "subsumed" in

3403the violation of Section 489.129(1)(j) and cannot be separately

3412punished. Department of Business and Professional Regulation,

3419Construction Industry Licensing Board, v. Battaglia , No. 03-

34271224PL, slip op. at 13-14 (Fla. DOAH August 11,

34362003)(Recommended Order), adopted in toto , (DBPR, CILB,

3443December 3, 2003); cf. State v. Weller , 590 So. 2d 923, 926

3455(Fla. 1991)("If two statutory offenses are not 'separate' under

3465the Blockburger test, then the 'lesser' offense is deemed to be

3476subsumed within the greater. This is simple logic. When the

3486commission of one offense always results in the commission of

3496another, then the latter is an inherent component of the

3506former.")

350839. The Department did not clearly and convincingly prove

3517Respondent's guilt of the violations alleged in Counts I and III

3528of the Administrative Complaint. 4

353340. The lone issue remaining for consideration is what

3542disciplinary action should be taken against Respondent for his

3551violation of Section 489.129(1)(j), Florida Statutes. To answer

3559this question it is necessary to consult the Board's

"3568disciplinary guidelines" set forth Florida Administrative Code

3575Chapter 61G4-17, which impose restrictions and limitations on

3583the exercise of its disciplinary authority. See Parrot Heads,

3592Inc. v. Department of Business and Professional Regulation , 741

3601So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency

3612is bound by its own rules . . . creat[ing] guidelines for

3624disciplinary penalties."); and § 455.2273(5), Fla. Stat. ("The

3634administrative law judge, in recommending penalties in any

3642recommended order, must follow the penalty guidelines

3649established by the board or department and must state in writing

3660the mitigating or aggravating circumstances upon which the

3668recommended penalty is based."); cf. State v. Jenkins , 469 So.

36792d 733, 734 (Fla. 1985)("[A]gency rules and regulations, duly

3689promulgated under the authority of law, have the effect of

3699law."); Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

37121995)("An agency must comply with its own rules."); Decarion v.

3724Martinez , 537 So. 2d 1083, 1084 (Fla. 1st 1989)("Until amended

3735or abrogated, an agency must honor its rules."); and Williams v.

3747Department of Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA

37581988)(agency is required to comply with its disciplinary

3766guidelines in taking disciplinary action against its employees).

377441. In Florida Administrative Code Rule 61G4-17.001, the

3782Board has announced the "[n]ormal [p]enalty [r]anges" within

3790which its disciplinary action against contractors will fall,

3798absent aggravating or mitigating circumstances, for specified

3805violations.

380642. At all times material to the instant case, Florida

3816Administrative Code Rule 61G4-17.001 has provided, in pertinent

3824part, that for a "first offense" of Section 489.129(1)(j),

3833Florida Statutes, 5 a violator could expect, absent aggravating or

3843mitigating circumstances, to receive a penalty ranging from a

"3852minimum" of a "$2,500 fine and/or probation, or suspension" to

3863a maximum of a "$7,500 fine and/or probation, or suspension."

3874Furthermore, it has given notice of the Board's additional

3883authority to "assess the costs of investigation and prosecution"

3892and "order the contractor to make restitution in the amount of

3903financial loss suffered by the consumer."

390943. Florida Administrative Code Rule 61G4-17.002 lists

"3916[a]ggravating and [m]itigating circumstances" to be considered

3923in determining whether a departure from the "[n]ormal [p]enalty

3932[r]ange" is warranted in a particular case. At all times

3942material to the instant case, these "[a]ggravating and

3950[m]itigating circumstances" have included the following:

3956(1) Monetary or other damage to the

3963licensee's customer, in any way associated

3969with the violation, which damage the

3975licensee has not relieved, as of the time

3983the penalty is to be assessed. (This

3990provision shall not be given effect to the

3998extent it would contravene federal

4003bankruptcy law.)

4005(2) Actual job-site violations of building

4011codes, or conditions exhibiting gross

4016negligence, incompetence, or misconduct by

4021the licensee, which have not been corrected

4028as of the time the penalty is being

4036assessed.

4037(3) The danger to the public.

4043(4) The number of complaints filed against

4050the licensee.

4052(5) The length of time the licensee has

4060practiced.

4061(6) The actual damage, physical or

4067otherwise, to the licensee's customer.

4072(7) The deterrent effect of the penalty

4079imposed.

4080(8) The effect of the penalty upon the

4088licensee's livelihood.

4090(9) Any efforts at rehabilitation.

4095(10) Any other mitigating or aggravating

4101circumstances.

410244. As the Department points out in its Proposed

4111Recommended Order, there is an aggravating circumstance present

4119in the instant case in that GGC's unlawful abandonment of the

4130Project caused the Thompsons to have pay $15,194.91 more than

4141the contract price for the completion of the Project.

415045. Having considered the facts of the instant case

4159(including the foregoing aggravating circumstance) in light of

4167the pertinent and applicable provisions of Florida

4174Administrative Code Chapter 61G4-17, it is the view of the

4184undersigned that the following is the appropriate disciplinary

4192action that should be taken against Respondent in the instant

4202case for his violation of Section 489.129(1)(j), Florida

4210Statutes: (1) suspend his licenses for a period of two years;

4221(2) fine him $7,500.00; 6 (3) require him to pay restitution in

4234the amount of $15,194.91 to the Thompsons; and (4) order him to

4247reimburse the Department $182.90 for investigative and

4254prosecutorial costs.

4256RECOMMENDATION

4257Based upon the foregoing Findings of Fact and Conclusions

4266of Law, it is hereby

4271RECOMMENDED that the Board issue a Final Order:

4279(1) finding Respondent guilty of violating Section 489.129(1)(j)

4287and (m), as alleged in Counts II and IV, respectively, of the

4299Administrative Complaint; (2) suspending his license for a

4307period of two years; (3) fining him $7,500.00; (4) requiring him

4319to pay restitution in the amount of $15,194.91 to the Thompsons;

4331(4) ordering him to reimburse the Department $182.90 for

4340investigative and prosecutorial costs; and (5) dismissing Counts

4348I and III of the Administrative Complaint.

4355DONE AND ENTERED this 27th day of August, 2008, in

4365Tallahassee, Leon County, Florida.

4369S

4370___________________________________

4371STUART M. LERNER

4374Administrative Law Judge

4377Division of Administrative Hearings

4381The DeSoto Building

43841230 Apalachee Parkway

4387Tallahassee, Florida 32399-3060

4390(850) 488-9675 SUNCOM 278-9675

4394Fax Filing (850) 921-6847

4398www.doah.state.fl.us

4399Filed with the Clerk of the

4405Division of Administrative Hearings

4409this 27th day of August, 2008.

4415ENDNOTES

44161 Unless otherwise noted, all references in this Recommended

4425Order to Florida Statutes are to Florida Statutes (2007).

44342 It is unclear from the evidence presented at hearing whether,

4445at the time GGC stopped working on the Project, the percentage

4456of completion was less than the percentage of the total contract

4467price the Thompsons had paid GGC.

44733 A "person," as that term is used in Florida Statutes,

"4484includes individuals, children, firms, associations, joint

4490adventures, partnerships, estates, trusts, business trusts,

4496syndicates, fiduciaries, corporations, and all other groups or

4504combinations." § 1.01(3), Fla. Stat.

45094 Nowhere in its Proposed Recommended Order does the Department

4519argue that it presented such clear and convincing proof.

45285 There is no record evidence that Respondent has been

4538previously disciplined by the Board.

45436 Fining Respondent, in addition to suspending his licenses,

4552would be outside the "[n]ormal [p]enalty [r]ange" for a first

4562time violation of Section 489.129(1)(j), Florida Statutes. (The

"4570[n]ormal [p]enalty [r]ange" for such a violation is a fine (up

4581to $7,500.00) and/or probation, or a suspension.) An upward

4591departure from this "[n]ormal [p]enalty [r]ange," of the

4599magnitude recommended by the undersigned, is warranted in the

4608instant case because of the monetary harm suffered by the

4618Thompsons as a result of Respondent's violation. An upward

4627departure of any greater magnitude, however, in the opinion of

4637the undersigned, would be unjustifiable in light of the

4646apparently isolated nature of Respondent's wrongdoing.

4652Accordingly, the undersigned has declined to follow the

4660suggestion made by the Department in its Proposed Recommended

4669Order that the undersigned recommend that Respondent's licenses

4677be revoked and that he be fined a total of $10,000.00.

4689COPIES FURNISHED :

4692Brian P. Coats, Esquire

4696Department of Business and

4700Professional Regulation

47021940 North Monroe Street

4706Tallahassee, Florida 32399-2202

4709Gaetan Malschalck

47112510 Southwest 12th Street

4715Boynton Beach, Florida 33426

4719G. W. Harrell, Executive Director

4724Construction Industry Licensing Board

4728Department of Business and

4732Professional Regulation

4734Northwood Centre

47361940 North Monroe Street

4740Tallahassee, Florida 32399-0792

4743Ned Luczynski, General Counsel

4747Department of Business and

4751Professional Regulation

4753Northwood Centre

47551940 North Monroe Street

4759Tallahassee, Florida 32399-0792

4762NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4768All parties have the right to submit written exceptions within

477815 days from the date of this Recommended Order. Any exceptions

4789to this Recommended Order should be filed with the agency that

4800will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/27/2008
Proceedings: Recommended Order
PDF:
Date: 08/27/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/27/2008
Proceedings: Recommended Order (hearing held July 17, 2008). CASE CLOSED.
PDF:
Date: 08/18/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 08/11/2008
Proceedings: Transcript filed.
Date: 07/17/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/10/2008
Proceedings: Petitioner`s Pre-hearing Statement filed.
PDF:
Date: 05/29/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/29/2008
Proceedings: Notice of Hearing by Video Teleconference (hearing set for July 17, 2008; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 05/21/2008
Proceedings: Petitioner`s Response to Initial Order filed.
PDF:
Date: 05/19/2008
Proceedings: Initial Order.
PDF:
Date: 05/19/2008
Proceedings: Election of Rights filed.
PDF:
Date: 05/19/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 05/19/2008
Proceedings: Agency referral filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
05/19/2008
Date Assignment:
07/11/2008
Last Docket Entry:
08/27/2008
Location:
West Palm Beach, Florida
District:
Southern
Agency:
Department of Business and Professional Regulation
Suffix:
PL
 

Counsels

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Related Florida Statute(s) (10):

Related Florida Rule(s) (2):