97-001370 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Argadys T. Iglesias Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 8, 2000.

Summary: Respondent failed to satisfy within a reasonable time a civil judgment against the business he qualified relating to the practice of contracting. Recommend administrative fine plus.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY )

LICENSING BOARD , )

)

Petitioner , ) Case No. 97-1370

)

vs. )

)

ARGADYS T. IGLESIAS , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on July 8, 1997, at Miami, Florida, before Errol H. Powell, a

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue

Suite N-607

Miami, Florida 33128

For Respondent : Argadys T. Iglesias, pro se

3091 Southwest 85th Avenue

Miami, Florida 33155

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

On November 26, 1996, the Department of Business and

Professional Regulation, Construction Industry Licensing Board,

hereinafter Petitioner, filed an Administrative Complaint against

Argadys T. Iglesias, hereinafter Respondent. Petitioner charged

Respondent with violating Subsection 489.129(1)(r), Florida

Statutes (1993), by 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. By an Election of

Rights form, Respondent disputed the allegations of fact and

requested a formal hearing. On March 17, 1997, this matter was

referred to the Division of Administrative Hearings.

This case was consolidated with Case No. 97-1369. However,

prior to hearing, the two cases were severed.

At hearing, Petitioner presented the testimony of two

witnesses and entered eight exhibits into evidence. Respondent

testified in his own behalf and entered no exhibits into

evidence. 1

However, Respondent was permitted to late-file on or before

July 16, 1997, a copy of the Town of Surfside's building permit

records, as an exhibit. Respondent filed the records on July 23,

1997. Petitioner did not file an objection to the records being

filed beyond July 16, 1997. The building permit records of the

Town of Surfside are hereby accepted into evidence as

Respondent's Composite Exhibit No. 1. 2

No transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the hearing. The parties filed

post-hearing submissions which have been considered in this

recommended order.

FINDINGS OF FACT

1. At all times material hereto, Argadys T. Iglesias,

hereinafter Respondent, was licensed as a certified general

contractor by the Department of Business and Professional

Regulation, Construction Industry Licensing Board, hereinafter

Petitioner. In February 1991, Petitioner issued Respondent

license number CG C052822 and placed the license on an inactive

status.

2. Effective February 23, 1993, Respondent's license status

was changed to active; and Petitioner became the qualifying agent

for Miami Construction Enterprises, Inc., hereinafter Miami

Construction. Since in or around August 1994, Respondent's

license has been on a delinquent status.

3. As qualifier, Miami Construction authorized Respondent

to act for it in matters concerning contracting and to supervise

construction undertaken by it.

4. At all times material hereto, Respondent was the primary

qualifying agent for Miami Construction.

5. At no time material hereto did Respondent have ownership

interest in Miami Construction. Juan Carlos Rodriguez was the

sole owner, having 100 per cent interest in Miami Construction,

and was its president.

6. At no time material hereto was Respondent a signatory on

any bank account maintained by Miami Construction.

7. At all times material hereto, Respondent was employed

full-time with Dade County, Florida, as a housing inspector.

8. On or about May 28, 1993, Miami Construction entered

into a written contract with Juan Marulanda for repair work on a

home at a cost of $14,520. The home, located at 8951 Hawthorne

Avenue, Surfside, Dade County, Florida, was owned by

Mr. Marulanda and his wife, Mildred Marulanda, and had been

damaged by Hurricane Andrew.

9. Juan Carlos Rodriguez entered into the contract on

behalf of Miami Construction. Mr. Rodriguez represented to

Mr. Marulanda that Miami Construction was licensed and insured.

10. On or about July 20, 1993, after demolition of the

existing damage to the home, building permit no. 24326 was issued

by the Town of Surfside for the repair work.

11. On or about August 20, 1993, Mr. Marulanda entered into

a second written contract with Miami Construction for work on his

home at a cost of $51,080. This second contract included change

orders, some of which Respondent was unaware of.

12. It is inferred and a finding is made that the contract

dated August 20, 1993, hereinafter the second contract,

superseded the contract dated May 28, 1993.

13. No subsequent building permit was issued for the work

under the second contract. It is inferred and a finding is made

that building permit no. 24326 also covered work performed in

accordance with the second contract.

14. Miami Construction performed the work on

Mr. Marulanda's home under Respondent's supervision.

15. At three different times during the construction on his

home, Mr. Marulanda observed Respondent examining the work being

performed. During one of Respondent's visits, Mr. Rodriguez

introduced Mr. Marulanda to Respondent, as the person who was in

charge of the construction.

16. The Marulandas paid for part of the construction being

performed on their home. 3

17. In addition to performing work on the Marulandas' home,

Miami Construction performed work on Mr. Marulanda's business

without the knowledge of Respondent.

18. At some point during the construction on his home ,

Mr. Marulanda became dissatisfied with the work being performed.

On December 2, 1993, Mr. Marulanda informed the Town of Surfside

that he wanted to cancel building permit no. 24326 based upon

"Irreconcilible [sic] differences" and that he wanted an owner's

building permit. On December 2, 1993, the Town of Surfside

issued Mr. Marulanda an owner's building permit for

"nonstructural" work.

19. Respondent did not receive notification of

Mr. Marulanda's cancellation of the building permit even though

Mr. Marulanda notified Miami Construction. When Respondent

eventually became aware of the building permit's cancellation, he

considered Mr. Marulanda's action as firing him and Miami

Construction from the job.

20. Mr. Marulanda obtained the services of an attorney and

in 1994 filed a civil complaint in the Eleventh Judicial Circuit,

Dade County, Florida, Case No. 94-3201-CA-01, against Miami

Construction and Mr. Rodriguez for alleged violations of the

second contract. Respondent was not named as a defendant. The

complaint alleged, among other things, breach of agreement,

unjust enrichment, fraud, and conversion.

21. In or around February 1994, after operating for

approximately one year, Miami Construction ceased doing business.

22. On February 25, 1994, a copy of the complaint was

served upon Respondent, through service of process, as a director

of Miami Construction.

23. No direct evidence was presented at hearing to show

that Respondent was a director of Miami Construction. 4

24. Respondent did not defend the lawsuit. Respondent

believed that, since he was not named in the lawsuit, he could

not defend it without the cooperation of Mr. Rodriguez, which he

did not have. Additionally, after having communicated with the

attorney representing Mr. Marulanda in the court action,

Respondent believed erroneously that only Miami Construction and

Mr. Rodriguez would be affected by the outcome of the court case.

25. On October 12, 1994, Mr. Marulanda obtained a default

final judgment against Mr. Rodriguez and Miami Construction from

the Circuit Court. 5 The default final judgment ordered the

following:

1. That a final judgment be and the same is

hereby entered in favor of PLAINTIFF and

against the DEFENDANTS, jointly and

severally, in the amount of $43,304.06.

2. That PLAINTIFF additionally recover from

said DEFENDANT [sic] costs herein taxed in

the sum of $197.00.

3. That PLAINTIFF recover from said

DEFENDANT [sic] attorney's fees herein taxed

in the sum of $3,012.50.

for all of which let execution issue.

26. The default final judgment does not show that a copy of

it was furnished to Respondent, but does show that a copy was

furnished to the named defendants, Mr. Rodriguez and Miami

Construction.

27. The default final judgment has not been set-aside,

vacated, appealed, satisfied, or discharged in bankruptcy in

whole or in part.

28. Respondent has not made a single payment toward

satisfaction of the default final judgment or offered to

negotiate a payment plan. 6

29. Since in or around August 1994, Respondent's license

has been on a delinquent status.

30. Respondent is no longer a housing inspector with Dade

County; however, he remains employed with Dade County.

Respondent is required to have his license to continue his

employment with Dade County in his present position.

CONCLUSIONS OF LAW

31. Pursuant to Section 120.569, Florida Statutes

(Supp. 1996) and Subsection 120.57(1), Florida Statutes

(Supp. 1996), the Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto.

32. License revocation proceedings are penal in nature.

The burden of proof is on the Petitioner to establish the

truthfulness of the allegations of the Administrative Complaint

by clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection v.

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

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

33. Section 489.129, Florida Statutes (1993), provides in

pertinent part:

(1) The board may take any of the following

actions against any certificateholder [sic]

or registrant: place on probation or

reprimand the license, revoke,

suspend, . . ., require financial restitution

to a consumer, impose an administrative fine

not to exceed $5,000 per violation, . . ., or

assess costs associated with investigation

and prosecution, if the contractor, . . ., or

business organization for which the

contractor is a primary qualifying agent or

is a secondary qualifying agent responsible

under s. 489.1195 is found guilty of any of

the following acts:

* * *

(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.

34. Section 489.1195, Florida Statutes (1993), provides in

pertinent part:

(1) A qualifying agent is a primary

qualifying agent unless he is a secondary

qualifying agent under this section.

(a) All primary qualifying agents for a

business organization are jointly and equally

responsible for supervision of all operations

of the business organization; for all field

work at all sites; and for financial matters,

both for the organization in general and for

each specific job.

35. A primary qualifying agent is defined in Section

489.105, Florida Statutes (1993), as follows:

(4) "Primary qualifying agent" means a

person who possesses the requisite skill,

knowledge, and experience, and has the

responsibility, to supervise, direct, manage,

and control the contracting activities of the

business organization with which he is

connected; who has the responsibility to

supervise, direct, manage, and control

construction activities on a job for which he

has obtained the building permit; and whose

technical and personal qualifications have

been determined by investigation and

examination as provided in this part, as

attested by the department.

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

defines "reasonable time" for the purposes of Subsection

489.129(1)(r). Although the said Rule was promulgated subsequent

to Respondent's conduct, the Rule is applicable to the instant

case. 7 The said Rule defines "reasonable time" as follows:

"[N]inety (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."

At the time of hearing, no payment plan had been agreed upon and

not a single payment had been made in an effort to satisfy the

default final judgment. Almost two years and nine months had

elapsed since the default final judgment had been entered, and it

had not been satisfied. The default final judgment has not been

satisfied within a reasonable time. Even assuming that the

definition was not applicable, failure to satisfy the civil money

judgment after almost two years and nine months have elapsed is

beyond a reasonable time.

37. Respondent is prohibited from challenging the

correctness or validity of the default final judgment. When a

judgment or decree, including a default judgment, has been

rendered by a court of competent jurisdiction and the judgment or

decree has not been reversed, neither party to that judgment or

decree is allowed to challenge its correctness or validity.

Department of Health and Rehabilitative Services v. Wood , 600

So. 2d 1298, 1300 (Fla. 5th DCA 1992); McGraw v. Department of

State, Division of Licensing , 491 So. 2d 1193, 1195 (Fla. 1st DCA

1986); AGB Oil Company v. Crystal Exploration and Production

Company , 406 So. 2d 1165, 1167 (Fla. 3d DCA 1981), rev. denied

413 So. 2d 875 (Fla. 1982); The Florida Bar v. Vernell , 374

So. 2d 473, 475 (Fla. 1979); The Florida Bar v. Onett , 504 So. 2d

388, 390 (Fla. 1987). The undersigned is prohibited from going

behind the default final judgment; however, mitigating

circumstances may be presented to show that discipline should not

be imposed. Vernell , supra ; Onett , supra .

38. The default judgment obtained by the Mr. Marulanda is

against Miami Construction and Mr. Rodriguez. Respondent is the

primary qualifier of Miami Construction. As the primary

qualifier, Respondent, as well as Miami Construction, is

statutorily responsible for the financial matters of Miami

Construction and for the satisfaction of any civil judgment

obtained against Miami Construction. Even though Respondent has

created a grave concern as to whether the construction damages

ordered in the final default judgment are correct or valid,

Respondent may not challenge the correctness or validity of the

default judgment against Miami Construction and, in turn, the

undersigned is prohibited from going behind the default judgment.

However, Respondent may present mitigating circumstances as to

disciplinary action against him.

39. Petitioner has demonstrated that Respondent violated

Subsection 489.129(1)(r) by failing to satisfy, within a

reasonable time, the terms of a civil judgment obtained against

the business organization qualified by the licensee, relating to

the practice of the licensee's profession.

40. Regarding penalty, Rule 61G4-17.001, Florida

Administrative Code, provides guidelines for disciplinary action

and provides in pertinent part:

(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 . . . .

* * *

(20) For any violation occurring after

October 1, 1989, the board may assess the

costs of investigation and prosecution. The

assessment of such costs may be made in

addition to the penalties provided by these

guidelines without demonstration of

aggravating factors set forth in rule 61G4-

17.002.

(21) For any violation occurring after

October 1, 1988, the board may order the

contractor to make restitution in the amount

of financial loss suffered by the consumer.

Such restitution may be ordered in addition

to the penalties provided by these guidelines

without demonstration of aggravating factors

set forth in rule 61G4-17.002, and to the

extend [sic] that such order does not

contravene federal bankruptcy law.

* * *

(23) [T]he board will consider a mutually

agreed upon payment plan as satisfaction of

such a judgment so long as the payments are

current.

41. Rule 61G4-17.001 was not in effect at the time of

Respondent's conduct, and the rule, which was in effect at the

time of Respondent's conduct, did not contain a reference to

Subsection 489.129(1)(r). Petitioner's argument in determining

the approach and rationale to use in addressing this circumstance

is persuasive. Although there was an absence of a reference to

Subsection 489.129(1)(r), the rule in effect did contain language

currently found in Rule 61G4-17.001(22), Florida Administrative

Code, which authorizes the use of the penalty guideline

prescribed for the violation most closely resembling the

violation in question. Applying Rule 61G4-17.001(22) to the

instant case, the violation most closely resembling a violation

of Subsection 489.129(1)(r) is a violation of Subsection

489.129(1)(h), Florida Statutes, (mismanagement or misconduct

causing financial harm to a customer). The penalty guideline for

a violation of Subsection 489.129(1)(h) is found at Rule 61G4-

17.001(8), Florida Administrative Code, which provides, as a

first violation, a fine of $750 to $1,500 and/or probation.

42. The mitigating and aggravating circumstances to be

considered are found at Rule 61G4-17.002, Florida Administrative

Code, 8 and are as follows:

(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.

43. Having considered the totality of the circumstances of

the case at hand in light of the guidelines for disciplinary

action, it is the view of the undersigned that Petitioner require

Respondent to do the following as discipline: (a) pay a $1,000

administrative fine; (b) pay restitution or, in the alternative,

to provide proof of satisfaction of the final default judgment;

and pay costs of investigation and prosecution by Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and Professional

Regulation, Construction Industry Licensing Board enter a final

order:

1. Finding that Argadys T. Iglesias violated Subsection

489.129(1)(r), Florida Statutes.;

2. Imposing a $1,000 administrative fine;

3. Requiring Argadys T. Iglesias to pay restitution to Juan

Marulanda for the monetary damages awarded in the default final

judgment entered in the Eleventh Judicial Circuit, Dade County,

Florida, Case No. 94-3201-CA-01 on October 12, 1994, or, in the

alternative, to provide proof of satisfaction of the said default

final judgment; and

4. Requiring Argadys T. Iglesias to pay all reasonable

costs of investigation and prosecution associated with the

Department of Business and Professional Regulation's

investigation and prosecution of the charges set forth in the

Administrative Complaint. 9

DONE AND ENTERED this 5th day of November, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of November, 1997.

ENDNOTES

1/ At hearing, Respondent made an ore tenus motion for

continuance based upon his counsel being unavailable for hearing.

Petitioner objected to a continuance. After hearing arguments,

the motion was denied.

2/ The cover letter accompanying Respondent's Composite Exhibit

No. 1 is not a part of the Exhibit and is considered to be

additional argument by Respondent. Moreover, the Exhibit

contains some hand-written notes in pencil on the homeowner's

permit issued December 2, 1993. It is evident that these notes

are not a part of the document, but have been added. Therefore,

the hand-written notes are not considered in this recommended

order.

3/ The record in these proceedings includes cancelled checks

from the Marulandas, with some of the checks being made payable

to Miami Construction, Inc. and some to Juan Carlos Rodriguez,

personally. These cancelled checks were not entered into

evidence at hearing by either party, but they are a part of the

record, having been filed with the Division of Administrative

Hearings at the time of referral of this case.

4/ Petitioner entered into evidence a computer printout of the

corporate record of Miami Construction from the Department of

State, Division of Corporations. The printout clearly states

that it is not an official record. The printout is hearsay

evidence. No direct evidence was presented at hearing for the

hearsay evidence to supplement or explain. The printout is not

an exception to the hearsay rule of evidence. Therefore,

pursuant to Chapter 120, Florida Statutes, the printout is

insufficient to establish a finding a fact.

5/ In Petitioner's Exhibit No. 5, Mr. Marulanda's affidavit of

damages submitted to the circuit court contains two items that

are not included in the second contract (the superseding

contract) between Mr. Marulanda and Miami Construction. Those

items are the "Air conditioning" and the "Gate".

6/ In his proposed recommended order, Respondent states that he

made an attempt to correct "any short comings" by Mr. Rodriguez

and to "rehabilitate" by spending "over $8,000.00" to "fix"

Mr. Marulanda's home after the permit was cancelled by

Mr. Marulanda. At hearing, no testimony was presented regarding

such efforts by Respondent, and, therefore, these representations

by Respondent are not considered in this recommended order.

7/ Because Rule 61G4-17.001(23), Florida Administrative Code,

clarified existing law by defining "reasonable time," the

definition may be applied to cases where the alleged violation of

Subsection 489.129(1)r, Florida Statutes, occurred prior to the

said Rule's effective date. Cf. Agency for Health Care

Administration v. Associated Industries of Florida, Inc. , 678 So.

2d 1239, 1256 (Fla. 1996); Nussbaum v. Mortgage Service America

Company , 913 F.Supp. 1548, 1557 (S.D. Fla. 1995).

8 / At the time of Respondent's conduct, the wording of the rule

in effect was the same as Rule 61G4-17.002, Florida

Administrative Code, only the numbering was different.

9/ Rule 61G4-12.018, Florida Administrative Code, requires the

Department of Business and Professional Regulation to "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." Fundamental fairness requires that the Board provide

Respondent an opportunity to dispute and challenge the accuracy

and/or reasonableness of the itemization of investigative and

prosecutorial costs before the Board determines the amount of

costs Respondent will be required to pay.

COPIES FURNISHED:

Theodore R. Gay, Senior Attorney

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue, Suite N-607

Miami, Florida 33128

Argadys T. Iglesias, pro se

3091 Southwest 85th Avenue

Miami, Florida 33155

Rodney Hurst, Executive Director

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.