96-004845 Construction Industry Licensing Board vs. John A. Tagliaferro Status: Closed Recommended Order on Monday, April 6, 1998.

Summary: Contractor should be fined $4000 and have his license suspended until he satisfies the civil judgment against him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

) Case No. 96-4845

vs. )

)

JOHN A. TAGLIAFERRO, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 16, 1998, via video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a duly

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ruby Seymour-Barr, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: John A. Tagliaferro, pro se

601 Northwest 103 Avenue, No. 357

Pembroke Pines, Florida 33026-6023

STATEMENT OF THE ISSUE

Whether the Respondent committed the acts alleged in the

Administrative Complaint and, if so, the penalty which should be

imposed.

PRELIMINARY STATEMENT

In a four-count Administrative Complaint dated June 25,

1996, the Department of Business and Professional Regulation

("Department") , charged, in Count I, that John A. Tagliaferro

violated Section 489.129(1)(h)2., Florida Statutes (1995), by

committing mismanagement or misconduct in the practice of

contracting which caused financial harm to a customer; in Count

II, that Mr. Tagliaferro violated Section 489.129(1)(k) by

abandoning a construction project in which he was engaged as a

contractor; in Count III, that Mr. Tagliaferro violated Section

489.129(1)(n) by committing incompetency or misconduct in

contracting; and, in Count IV, that Mr. Tagliaferro violated

Section 489.129(1)(r) by failing to satisfy within a reasonable

time a civil judgment against him and the business organization

he qualified which relates to the practice of contracting.

Mr. Tagliaferro timely requested a formal administrative hearing,

and the Department forwarded the request to the Division of

Administrative Hearings for assignment of an administrative law

judge. After one continuance, the case was heard on January 16,

1998.

The Department presented the testimony of Mirna Espina and

Petitioner’s Exhibits A, B, C, E, and F were offered and received

into evidence. Mr. Tagliaferro testified in his own behalf but

offered no exhibits into evidence.

A transcript was filed with the Division of Administrative

Hearings on February 11, 1998, and the Department timely filed

its proposed recommended order, which has been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation

is the state agency responsible for investigating and prosecuting

complaints made to the Department for violations of Chapter 489,

Part I, Florida Statutes. Sections 489.131(7)(e); 455.225,

Florida Statutes. Pursuant to Section 489.129(1), the

Construction Industry Licensing Board ("Board") is the entity

responsible for imposing discipline for any of the violations set

forth in that section.

2. At the times material to this proceeding,

Mr. Tagliaferro has been licensed by the Department as a

certified building contractor, having been assigned license

number CB C020944 by the Board. His license is currently

suspended for failure to make payments pursuant to the terms of a

stipulation adopted in a final order of the Board effective

June 20, 1994.

3. At all times material to this proceeding,

Mr. Tagliaferro was the licensed qualifying agent for C. J.

Construction Corporation.

4. On or about May 15, 1994, Mr. Tagliaferro, d/b/a C. J.

Construction Corporation, entered into a contract with

Mr. Esteban Garcia to build a second-floor addition to

Mr. Garcia's home located at 7541 Northwest 1st Court, Pembroke

Pines, Florida.

5. The contract specified that C. J. Construction

Corporation would construct an area approximately 24' x 17', and

the scope of the work included installing roof shingles to match

the existing roof, new windows, a stairway to the new second-

floor addition, a new entrance door, new electrical wiring for

the second-floor addition, and new plywood flooring over the

existing roof. No completion date was specified in the contract.

6. The price stated in the contract for this construction

was $17,000, with one-third of the price due on signing the

contact and the remainder due as the job progressed. On May 16,

1994, the date the contract was signed, Mr. Tagliaferro received

payment of $5,000.

7. The building plans were approved on or about August 11,

1994, and Mr. Tagliaferro began construction immediately

thereafter.

8. Payments were made to Mr. Tagliaferro by checks dated

August 30, 1994, September 22, 1994, and October 21, 1994, in the

amounts of $5,000, $3,000, and $2,000, respectively.

9. Mr. Tagliaferro found that it was necessary to change

the dimensions of the addition from 24' x 17' to 24' x 24' to

accommodate the stairway to be built to the second floor. Had

the addition been built to the original dimensions, the stairway

would have covered a window. Mr. Tagliaferro prepared a written

change order, with an estimate of $6500 to construct the addition

to the increased specifications. Although the change order was

never signed, Mr. Tagliaferro framed the addition at 24' x 24'.

10. Mr. Tagliaferro installed the plywood flooring over the

existing roof, framed the addition, installed the roof trusses,

installed plywood sheeting on the exterior walls and roof,

installed the new staircase, and tin-tagged the roof.

11. Mr. Tagliaferro called for an inspection of the framing

on October 27, 1994. The framing did not pass inspection because

there was no approved copy of the plans on site, as required.

Mr. Tagliaferro did not remove the plans from the site prior to

the inspection.

12. After the failed inspection on October 27, 1994, a

member of Mr. Tagliaferro's family died, and it was necessary for

him to go to New York, where he remained for three or four days.

Mr. Tagliaferro telephoned Mr. Garcia's daughter, Mirna Espina,

and told her that he was in New York to take care of personal

matters.

13. When he returned, he contacted the architect to have

another set of plans drawn up so he could re-submit them for

approval and continue construction.

14. Ms. Espina telephoned Mr. Tagliaferro numerous times

after October 27 to ask when he intended to return to complete

the construction. She received no answer and left messages on

the answering machine. Mr. Tagliaferro did not return her calls.

15. At some point after October 27, Ms. Espina went to the

police department and asked that a police officer accompany her

to Mr. Tagliaferro's house so she could talk to him and ask when

he intended to return to complete the construction.

Mr. Tagliaferro answered the door and, when the police officer

asked when he was going to finish the construction job, Mr.

Tagliaferro explained that he had a problem but intended to

return to complete the job. When the police officer told him to

tell the truth about whether he intended to complete the job,

Mr. Tagliaferro did not respond and closed his door. Mr. Garcia,

Ms. Espina, and her husband decided to complete the project

themselves in early-to-mid December 1994.

16. Although he eventually obtained another set of plans,

Mr. Tagliaferro did not return to the Garcia house to complete

the addition. As of October 21, 1994, when he was last on the

job, Mr. Tagliaferro had not installed roof shingles, new

windows, an entrance door, wirelath or stucco on the exterior

walls, electrical wiring, sheet rock with popcorn ceiling, or

insulation, and he had not extended the air conditioning ductwork

to the new addition.

17. A proposal for the installation of wirelath and stucco,

dated December 10, 1994, was prepared by Repairs Unlimited, Inc.,

and was accepted by Mr. Garcia. On January 11 and 30, 1995,

respectively, Mr. Garcia also accepted proposals from Miller

Roofing to install asphalt shingles on the roof and from Cayamas

Electric Corporation to do the electrical work in the addition.

Numerous receipts from building supply stores attest to the

materials purchased by Mr. Garcia to complete the project, and a

statement dated January 30, 1995, indicates that repair and

reinstallation work was performed for Mr. Garcia by Samuel Benson

on January 15, 22, and 29. These contracts total $5,421.00.

18. Mr. Garcia hired an attorney on December 16, 1994, and

filed suit against Mr. Tagliaferro in circuit court. A hearing

was held, which Mr. Tagliaferro attended. On May 18, 1995, a

final judgment was entered against Mr. Tagliaferro directing him

to pay to Mr. Garcia and Ms. Espina $15,000 and costs of $250,

with interest accruing at the rate of eight percent per annum.

19. Mr. Tagliaferro has not satisfied the judgment and has

not engaged in any discussions with Mr. Garcia or Ms. Espina to

arrange for payment of the judgment.

20. The evidence presented by the Department is not

sufficient to support a finding of fact that Mr. Tagliaferro

abandoned the Garcia construction project. The only evidence

presented to support such a finding was the hearsay-within-

hearsay testimony of Ms. Espina that her father, Mr. Garcia, told

her that Mr. Tagliaferro told him that he did not intend to

complete the project. The evidence is sufficient, however, to

permit the inference that Mr. Tagliaferro was precluded from

completing work on the project prior to the expiration of ninety

days from October 21, 1994, when he last worked on the project.

21. Although the evidence establishes that Mr. Garcia was

harmed financially by Mr. Tagliaferro's failure to complete the

addition, no evidence was presented by the Department to support

a finding of fact that Mr. Tagliaferro caused the financial harm

by mismanaging the construction project or by engaging in

misconduct. Specifically, the Department presented no evidence

to support its assertion that Mr. Tagliaferro completed only

thirty percent of the job before Mr. Garcia took over the

construction. Therefore, it failed to establish that the amount

paid to Mr. Tagliaferro exceeded the percentage of

completion.

22. Additionally, the Department presented no evidence to

establish the relevant standards of competency in the practice of

contracting or the manner in which Mr. Tagliaferro failed to meet

those standards in the work done on the Garcia project.

23. It is, however, uncontroverted that Mr. Tagliaferro has

not satisfied a judgment entered against him and C. J.

Construction Corporation in May 1995 in favor of Mr. Garcia and

Ms. Espina.

CONCLUSIONS OF LAW

24. The Division of Administrative hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to Section 120.569(1), Florida Statutes

(1997).

25. In its Administrative Complaint, the Department seeks

penalties which include suspension or revocation of

Mr. Tagliaferro's license and/or the imposition of an

administrative fine. Therefore, it has the burden of proving by

clear and convincing evidence that Mr. Tagliaferro committed the

violations alleged in the Administrative Complaint. Department

of Banking and Finance, Division of Securities and Investor

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

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

26. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989),

the court explained:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

27. Section 489.129(1), Florida Statutes, provides in

pertinent part:

(1) The board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate,

registration, or certificate of authority,

require financial restitution to a consumer

for financial harm directly related to a

violation of a provision of this part, impose

an administrative fine not to exceed $5,000

per violation, require continuing education,

or assess costs associated with investigation

and prosecution, if the contractor,

financially responsible officer, or business

organization for which the contractor is a

primary qualifying agent, a financially

responsible officer, or a secondary

qualifying agent responsible under s.

489.1195 is found guilty of any of the

following acts:

***

(h) Committing mismanagement or misconduct

in the practice of contracting that causes

financial harm to a customer. Financial

mismanagement or misconduct occurs when:

***

2. The contractor has abandoned a customer's

job and the percentage of completion is less

than the percentage of the total contract

price paid to the contractor as of the time

of abandonment, unless the contractor is

entitled to retain such funds under the terms

of the contract or refunds the excess funds

within 30 days after the date the job is

abandoned;

***

(k) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presumed abandoned after 90 days if the

contractor terminates the project without

just cause or without proper notification to

the owner, including the reason for

termination, or fails to perform work without

just cause for 90 consecutive days.

***

(n) Committing incompetency or misconduct in

the practice of contracting.

***

(r) Failing to satisfy within a reasonable

time, the terms of a civil judgment obtained

against the licensee, or the business

organization qualified by the licensee,

relating to the practice of the licensee's

profession.

28. Rule 61G4-17.001(23), Florida Administrative Code,

provides that "[f]or purposes of Section 489.129(1)(r), F.S.,

"reasonable time" means ninety (90) days following the entry of a

civil judgment that is not appealed. The Board will consider a

mutually agreed upon payment plan as satisfaction of such a

judgment so long as the payments are current."

29. Based on the findings of fact herein, the Department

has proven by clear and convincing evidence that Mr. Tagliaferro

is guilty of violating Section 489.129(1)(r).

30. Pursuant to Rule 61G4-17.001(14)(b), "misconduct," as

that term is used in Section 489.129(1)(n), includes a violation

of any provision of Chapter 489, Part I, Florida Statutes.

Consequently, based on the findings of facts herein and the

conclusion of law that Mr. Tagliaferro is guilty of violating

Section 489.129(1)(r), the Department has proven by clear and

convincing evidence that Mr. Tagliaferro violated Section

489.129(1)(n).

31. Based on the findings of fact herein, the Department

has failed to prove by clear and convincing evidence that

Mr. Tagliaferro violated Section 489.129(1)(h)2. or Section

489.129(1)(k), and Counts I and II of the Administrative

Complaint should be dismissed.

32. The range of penalties which may be imposed on

Mr. Tagliaferro for violating Sections 489.129(1)(n) and (r) are

set forth in Rule 61G4-17.001 as follows:

The following guidelines shall be used in

disciplinary cases, absent aggravating or

mitigating circumstances and subject to other

provisions of this Chapter.

***

(14) Misconduct or incompetency in the

practice of contracting as set forth in

Section 489.129(1)(n), Florida Statutes,

shall include, but is not limited to:

***

(b) Violation of any provision of Chapter

61G4, Florida Administrative Code, or Chapter

489, Part I, F.S.

***

(d) The following guidelines shall apply to

cases involving misconduct or incompetency in

the practice of contracting, absent

aggravating or mitigating circumstances:

***

2. Violation of any provision of Chapter

61G4, Florida Administrative Code, or Chapter

489, Part I, F.S. First violation, $500 to

$1,000 fine; repeat violations $1,000 to

$5,000 fine and/or probation, suspension or

revocation.

***

(18) Failure to satisfy a civil judgment

obtained against the licensee or the business

organization qualified by the licensee within

a reasonable time. First violation, $500 to

$1,000 fine and/or proof of satisfaction of

civil judgment; repeat violation, $1,000 to

$5,000 fine and/or proof of satisfaction of

civil judgment, probation, suspension or

revocation.

33. Rule 61G4-17.003 provides:

(1) As used in this rule, a repeat violation

is any violation on which disciplinary action

is being taken where the same licensee had

previously had disciplinary action taken

against him or received a letter of guidance

in a prior case; and said definition is to

apply regardless of whether the violations in

the present and prior disciplinary actions

are of the same or different subsections of

the disciplinary statutes.

(2) The penalty given in the above list [in

Rule 61G4-17.001] for repeat violations is

intended to apply only to situations where

the repeat violation is of a different

subsection of Chapter 489 than the first

violation. Where, on the other hand, the

repeat violation is the very same type of

violation as the first violation, the penalty

set out above will generally be increased

over what is otherwise shown for repeat

violations in the above list.

Based on the findings of facts herein, the Department has proven

that Mr. Tagliaferro has had disciplinary action taken against

him for previous violations of Chapter 489. Therefore, the

penalty ranges given in Rule 61G4-17.001 for repeat violations

should be used in determining the appropriate penalties in this

case.

34. In Section 489.129(1) and Rule 61G4-17.001(20), the

Board is authorized to assess the costs of investigation and

prosecution, in addition to the penalties imposed. The

Department presented no evidence to establish the amount of costs

at the formal hearing but, rather, cited Rule 61G4-12.018 in its

proposed recommended order to support its requests that such

costs be assessed and that the record be kept open for

presentation of the statement of costs to the Board. Rule 61G4-

12.018 provides that "[t]he Department shall submit to the Board

an itemized listing of all costs related to investigation and

prosecution of an administrative complaint when said complaint is

brought before the Board for final agency action." There is

nothing in this rule to suggest that the fact-finding role of the

administrative law judge is transferred to the Board with regard

to the determination of the amount of the costs to be assessed.

Therefore, the assessment of such costs in this case is not

appropriate given the lack of proof of the amount claimed and the

corresponding inability of Mr. Tagliaferro to challenge the

Department's statement of costs.

35. Rule 61G4-17.002, Florida Administrative Code, sets

forth the aggravating and mitigating circumstances which may be

considered for the purposes of mitigation or aggravation of

penalty. The rule provides that the factors

shall include, but are not limited to, the

following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the licensee

has not relieved, as of the time the penalty

is to be assessed. (This provision shall not

be given effect to the extent it would

contravene federal bankruptcy law.)

(2) Actual job-site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being assessed.

(3) The severity of the offense.

(4) The danger to the public.

(5) The number of repetitions of offenses.

(6) The number of complaints filed against

the licensee.

(7) The length of time the licensee has

practiced.

(8) The actual damage, physical or

otherwise, to the licensee's customer.

(9) The deterrent effect of the penalty

imposed.

(10) The effect of the penalty upon the

licensee's livelihood.

(11) Any efforts at rehabilitation.

(12) Any other mitigating or aggravating

circumstances.

36. The penalty guidelines and aggravating and mitigating

factors have been evaluated in light of the facts found herein in

determining the recommended penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Construction Industry Licensing

Board enter a Final Order:

(1) Finding John A. Tagliaferro guilty of having violated

Section 489.129(1)(n) and Section 489.129(1)(r), Florida

Statutes;

(2) Dismissing Counts I and II of the Administrative

Complaint;

(3) Imposing an administrative fine of $4,000; and

(4) Suspending Mr. Tagliaferro's license as a building

contractor until he submits proof that he has satisfied the

judgment entered against him on May 18, 1995, in Case No.

94-15660 (21), in the Circuit Court of the Seventeenth Judicial

Circuit, in and for Broward County, Florida.

DONE AND ENTERED this 6th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of April, 1998.

COPIES FURNISHED:

Ruby Seymour-Barr, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

John A. Tagliaferro, pro se

601 Northwest 103 Avenue

No. 357

Pembroke Pines, Florida 33026-6023

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.