97-001434 Construction Industry Licensing Board vs. Earl G. Burks
 Status: Closed
Recommended Order on Monday, November 24, 1997.


View Dockets  
Summary: Contractor, who served as qualifying agent for business, is responsible for business' failure to meet contractual duties and to satisfy judgment.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION , )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD )

22)

23Petitioner , )

25)

26vs. ) Case No. 97-1434

31)

32EARL G. BURKS , )

36)

37Respondent. )

39__________________________________)

40RECOMMENDED ORDER

42Pursuant to notice, a Section 120.57(1) hearing was held in

52this case on October 28, 1997, by video teleconference at sites

63in Miami and Tallahassee, Florida, before Stuart M. Lerner, a

73duly designated Administrative Law Judge of the Division of

82Administrative Hearings.

84APPEARANCES

85For Petitioner: Theodore R. Gay, Senior Attorney

92Seymour Stern, OPS Attorney

96Department of Business and

100Professional Regulation

102401 Northwest Second Avenue, Suite N-607

108Miami, Florida 33128

111For Respondent: Earl G. Burks, pro se

11812350 Southwest 132nd Court, No. 205

124Miami, Florida 33186

127STATEMENT OF THE ISSUES

1311. Whether Respondent committed the violations alleged in

139the Administrative Complaint.

1422. If so, what punitive action should be taken against

152Respondent.

153PRELIMINARY STATEMENT

155On September 25, 1996, the Department of Business and

164Professional Regulation (Department) issued an Administrative

170Complaint against Respondent. Paragraphs 1 through 16 of the

179Administrative Complaint alleged the following:

1841. Petitioner is the state agency charged

191with regulating the practice of contracting

197pursuant to Section 20.165, Florida Statutes,

203and Chapters 455 and 489, Florida Statutes.

2102. Respondent is, and has been at all times

219material hereto, a Certified General

224Contractor, in the State of Florida, having

231been issued license number CG C047384.

2373. Respondent's last known address is 12350

244S.W. 132nd Court, Miami, FL 33186.

2504. At all times material hereto, Respondent

257(hereinafter referred to as "Contractor") was

264the licensed qualifier for ANAC Services,

270Inc., and was therefore responsible for the

277acts, omissions, and financial responsibility

282of the business as it relates to contracting.

2905. On or about February 24, 1994, Respondent

298entered into a verbal contract with Erycina

305Webbe (hereinafter referred to as "Webbe") to

313negotiate an insurance settlement and re-

319construct Webbe's fire damaged home located

325at 5510 N.W. 10th Avenue, Miami, FL 33127.

3336. The verbal contract price was to be the

342entire insurance settlement which was

347$35,658.38.

3497. Respondent received $30,658.38 of the

356total contract price.

3598. Respondent did not obtain a permit from

367the Metro-Dade County Building Department.

3729. Said construction began in or around

379April, 1994, for about one-half day, at which

387time Respondent ceased all construction

392activities without just cause or notification

398to Webbe.

40010. At the time construction ceased,

406Respondent had completed considerably less

411than the agreed verbal contract price.

41711. Respondent was not entitled to retain

424said excess funds.

42712. Respondent failed to refund or otherwise

434reimburse Webbe.

43613. On November 28, 1995, Respondent and

443Webbe entered into a mediation agreement for

450which Respondent agreed to a judgment against

457him for $47,377.30 if he failed to recommence

466construction on Webbe's residence including

471obtaining building permits and receiving a

477Certificate of Occupancy, and paying the

483remainder of the money owed to Webbe within

491thirty (30) days after completion of said

498construction.

49914. Respondent failed to comply with the

506terms of the Mediation Agreement.

51115. On July 5, 1996, Webbe obtained a Final

520Judgment in the amount of $44,877.30 against

528Respondent in Case Number 95-9669 CA 01, In

536The Circuit Court Of The 11th Judicial

543Circuit, In And For Dade County, Florida.

55016. Respondent has failed to comply with the

558terms of said judgment.

562The Administrative Complaint further alleged that, based upon the

571allegations of fact set forth in paragraphs 1 through 16,

581Respondent was guilty of violating the following subsections of

590Section 489.129, Florida Statutes: subsection (1)(h)2 (Count I);

598subsection (1)(k) (Count II); subsection (1)(n) (Count III);

606subsection (1)(p) (Count IV); and subsection (1)(r) (Count V).

615Respondent subsequently requested a Section 120.57(1)

621hearing on the allegations made in the Administrative Complaint.

630On March 21, 1997, the matter was referred to the Division of

642Administrative Hearings for the assignment of an administrative

650law judge to conduct the Section 120.57(1) hearing Respondent had

660requested.

661As noted above, the hearing was held on October 28, 1997. 1

673Two witnesses testified at the hearing. Erycina Webbe, the

682homeowner referenced in the Administrative Complaint, testified

689for the Department. Respondent testified in his own defense. In

699addition to Webbe's and Respondent's testimony, 17 exhibits

707(Petitioner's Exhibits 1 through 8, 10, and 11, and Respondent's

717Exhibits 1 through 7) were offered and received into evidence.

727At the conclusion of the evidentiary portion of the hearing,

737the undersigned, on the record, announced that proposed

745recommended orders had to be filed no later than November 17,

7561997. The Department and Respondent filed their proposed

764recommended orders on November 17, 1997, and November 18, 1997,

774respectively. The parties' proposed recommended orders have been

782carefully considered by the undersigned.

787FINDINGS OF FACT

790Based upon the evidence adduced at hearing, and the record

800as a whole, the following findings of fact are made:

8101. Respondent is a general contractor.

8162. He is now, and has been at all times material to the

829instant case, licensed to engage in the contracting business in

839the State of Florida.

8433. He has held license number CG C047384 since 1989.

8534. Respondent is now, and has been since December 14, 1992,

864the primary qualifying agent for ANAC Services, Inc. (ANAC), a

874contracting business owned by Respondent and located in Miami,

883Florida.

8845. Erycina Webbe is a retired educator. She is now, and

895has been for approximately the past 30 years, the owner of a

907residence located at 5510 Northwest 10th Avenue in Miami, which

917she uses as rental property (Rental Property).

9246. In January of 1994, the Rental Property was extensively

934damaged by fire. At the time, the tenants of the Rental Property

946were Michelle Pogue and Vanessa Bartlett. Pogue and Bartlett are

956Webbe's nieces. After the fire, Pogue and Bartlett had to move

967out because the Rental Property was not in livable condition.

9777. Webbe was insured against damage to the Rental Property

987caused by fire. She therefore filed a claim with her insurer

998seeking payment for the loss she suffered as a result of the fire

1011that damaged the Rental Property.

10168. An insurance adjuster hired by Webbe's insurer initially

1025estimated that Webbe was due $27,678.29 under her insurance

1035policy for the damage to the Rental Property.

10439. Webbe thereafter contacted Respondent and discussed with

1051him the possibility of her hiring him to repair the Rental

1062Property.

106310. During the discussion, Respondent offered to help Webbe

1072obtain a larger insurance settlement than the $27,678.29 her

1082insurer had proposed to pay her.

108811. Respondent, as promised, provided such assistance.

109512. Webbe's insurer ultimately paid $35,658.38 in

1103settlement of Webbe's claim. Such payment was made by check

1113dated January 31, 1994 (Settlement Check).

111913. The Settlement Check was made payable to Webbe and

1129ANAC.

113014. On or about February 24, 1994, Webbe met Respondent at

1141a branch of the Great Western Bank, where ANAC maintained an

1152account. Webbe had with her the Settlement Check. She endorsed

1162the check and then gave it to Respondent, who deposited it in

1174ANAC's account at the bank. At the time of the deposit, the

1186account had a balance of $200.00. After the deposit was made,

1197Respondent, with the approval of the bank officer, withdrew

1206$10,000.00 from the account, $5,000.00 of which Respondent gave

1217to Webbe.

121915. In endorsing the Settlement Check and giving it to

1229Respondent for deposit in ANAC's account, Webbe was fulfilling

1238her obligation under a verbal agreement (Contract) with

1246Respondent (acting on behalf of ANAC) to pay for the repairs

1257that, pursuant to the terms of the Contract, ANAC was to make to

1270the Rental Property (Project).

127416. The Contract price for the Project was the amount of

1285the Settlement Check, less $5,000.00.

129117. Respondent (on behalf of ANAC) agreed to start the

1301Project no later than March 28, 1994, and to complete it no later

1314June 28, 1994.

131718. A building permit from the City of Miami was needed

1328before work on the project could begin. Respondent asked Webbe

1338to fill in her name, her address, and the address of the Rental

1351Property on a City of Miami building permit application form and

1362to sign the form. Webbe did so on March 29, 1994. She then

1375returned the form to Respondent for him to complete and submit to

1387the City of Miami.

139119. Webbe did not agree to assume the responsibility of

1401obtaining the permit needed to begin the Project.

140920. The responsibility, under the Contract, remained

1416ANAC's. 2

141821. ANAC, however, did not obtain the permit, and the

1428deadline for the completion of the Project passed without any

1438Project work having been done.

144322. Webbe retained the services of an attorney to assist

1453her in her efforts to have ANAC fulfill its contractual

1463obligation to complete the Project.

146823. Webbe's attorney contacted Respondent.

147324. Respondent (on behalf of ANAC) thereafter sent Webbe a

1483document entitled "Addendum to Contract between Mrs. Erycina R.

1492Webbe and ANAC Services, Inc." The document, which was signed by

1503Respondent and dated October 3, 1994, read as follows:

1512We hereby propose to start the reconstruction

1519project at 5510 N.W. 10th Avenue no later

1527than November 15, 1994. This project is to

1535be completed by February 15, 1995.

1541ANAC Services Inc. will compensate Mrs. Webbe

1548for loss [of] rent and the amount [will] be

1557mutually agreed upon by both parties.

156325. ANAC did not complete the Project by February 15, 1994.

1574In fact, no work had been done as of that date.

158526. There was no just cause for the delay in the

1596commencement of the Project.

160027. On May 12, 1995, Webbe (through her attorney) filed a

1611complaint in Dade County Circuit Court (in Case No. 95-9669 CA

162201), seeking a judgment for damages, plus interest and costs,

1632against ANAC and Respondent for breach of contract, conversion,

1641civil theft, and unjust enrichment.

164628. Respondent was served with a copy of the complaint. He

1657responded to the complaint by submitting the following written

1666answer:

1667My written defense to the above summons is

1675that I'd like to complete t[he] construction

1682work @ Mrs. Webbe['s] residence if she would

1690allow us. And the amount of money is

1698$30,000.00 dollars not $35,000.00 as to the

1707contract amount. 3 Mr. Jacobi [ Webbe's

1714attorney] please work out a settlement

1720arrangement.

172129. Webbe (along with her attorney) and Respondent (who was

1731not represented by counsel) participated in a court-ordered

1739mediation conference that was held on November 28, 1995.

174830. At the mediation conference, the parties entered into a

1758Mediation Agreement settling their dispute. The Mediation

1765Agreement was signed by Webbe and Respondent (in his individual

1775capacity and in his capacity as President of ANAC). It read as

1787follows:

1788THE PARTIES have agreed to abide by the

1796following:

17971. The Defendants agree to a Judgment

1804against them, jointly and severally, in the

1811amount of Forty-seven Thousand Seventy-seven

1816and 30/100 (Dollars).

18192. Said Judgment shall be recorded upon the

1827filing of an Affidavit of Non-Compliance

1833filed by the Plaintiff as to any of the

1842following events:

1844a) If the Defendants do not commence

1851construction on the property located at 5510

1858N.W. Tenth Avenue, Miami, FL 33127, pursuant

1865to the attached Contract Proposal, on or

1872before January 1, 1996;

1876b) If the Defendants do not pay Two Thousand

1885Five Hundred and No/100 ($2,5000.00) Dollars

1892to the Plaintiff on or before January 1,

19001996; or

1902c) If the Defendants do not complete the

1910aforementioned construction on or before

1915March 31, 1996.

19183. Defendants shall be responsible for

1924compliance with the pulling of all permits

1931and securing a Certificate of Occupancy

1937within said time period.

19414. Upon proper completion [of] the work,

1948including Certificate of Occupancy and

1953clearance of all violations presently on the

1960property, if any, Defendants will receive a

1967credit in the amount of Thirty-five Thousand

1974Six Hundred Fifty-eight and 38/100

1979($35,658.38) Dollars.

1982a) If work is complete by completion date,

1990as specified above, Defendants will receive

1996and additional credit of Four Thousand Five

2003Hundred and No/100 ($4,500.00) Dollars

2009against said Judgment.

2012b) The Defendants will have thirty (30) days

2020in order to pay the remainder of the amount

2029owed to Plaintiff.

2032c) If payment is not made within thirty (30)

2041days Plaintiff will apply for a Judgment by

2049Affidavit of Non-Compliance.

20525. Each party shall bear their own costs and

2061fees.

206231. The "attached Contract Proposal" (referred to paragraph

20702a of the Mediation Agreement) provided, in pertinent part, as

2080follows:

2081We hereby propose to furnish the materials

2088and labor necessary for the completion of the

2096following:

2097EXTERIOR ROOF

2099Description

2100R/R/ damaged sheathing

2103Re-roof damaged roofing/shingles

2106Chem. clean soffit/repaint

2109EXTERIOR FRONT

2111Description

2112Clean pressure wash exterior; seal or prime

2119then paint with two finish coats

2125Paint exterior fascia/soffit

2128R/R ornamental iron- security grill door

2134R/R exterior door

2137Paint door exterior, per side

2142Paint door trim and jamb, per side

2149EXTERIOR RIGHT SIDE

2152Description

2153Stucco or exterior plaster repair

2158Clean stucco

2160Paint stucco

2162R/R two exterior doors @ utility room and

2170kitchen

2171EXTERIOR REAR

2173Description

2174Stucco or exterior plaster repair

2179Clean/paint stucco

2181Re-establish location of cable wires

2186R/R aluminum windows- 2 each

2191Install/paint baseboards

2193Replace interior door unit

2197Paint door/trim and jamb

2201Replace closet door

2204Paint closet door

2207Seal then paint the walls and ceiling

2214twice (3 coats)

2217Install rod in closet

2221Install carpet/tile as per owner's

2226specifications

2227ROOM: BEDROOM NO. 3/CLOSET

2231DESCRIPTION

2232R/R ceiling/wall drywall- hung, taped, light

2238texture , ready for paint

2242install Batt insulation

2245R/R aluminum windows- 2 each

2250I nstall/paint baseboards

2253R eplace interior door unit

2258P aint door/trim and jamb

2263R eplace closet door

2267S eal then paint the walls and ceiling

2275twice (3 coats)

2278Install rod in closet

2282Install carpet/tile as per owner's

2287specifications

2288EXTERIOR LEFT SIDE

2291Description

2292Clean/paint stucco

2294R/R damaged storm shutter

2298ROOM: BEDROOM NO. 1/CLOSET

2302DESCRIPTION

2303I nstall B att insulation

2308R/R ceiling drywall- hung taped, light

2314texture, ready for paint

2318Chem. clean window

2321Seal then paint the walls and ceiling

2328twice (3 coats)

2331R/R interior door unit

2335Paint door/trim and jamb

2339R/R bi-fold closet door

2343Paint door

2345Install carpet/tile as per owner's

2350specifications

2351ROOM: BEDROOM NO. 2/CLOSET

2355Description

2356R/R ceiling/wall drywall- hung taped, light

2362texture, ready for paint

2366Install Batt insulation

2369ROOM: HALL/CLOSET

2371Description

2372Chem. clean/seal then paint the walls and

2379ceiling twice (3 coats)

2383Install carpet/tile as per owner's

2388specifications

2389Install Batt insulation

2392ROOM: HALL BATH

2395Description

2396Chem. clean tub

2399Chem. clean toilet

2402R/R toilet seat

2405Chem. clean sink/faucet

2408Seal/paint walls/ceilings

2410Chem. clean window

2413Chem. clean tile/grout

2416Paint int. door/frame

2419R/R tub/shower door

2422Install Batt insulation

2425ROOM: KITCHEN

2427Description

2428Seal then paint the walls and ceiling

2435twice (3) coats

2438R/R cabinetry- lower base units

2443R/R cabinetry- upper wall units

2448R/R countertop- flat laid formica

2453R/R sink/faucet

2455Install Batt insulation

2458ROOM: LIVING ROOM/DINING ROOM

2462Description

2463Seal then paint the walls and ceiling

2470twice (3) coats

2473Chem. clean aluminum windows

2477Install carpet/tile as per owner's

2482specifications

2483MISCELLANEOUS

2484Description

2485R/R damaged main entrance panel

2490Upgrade electrical system to current S.F.B.C.

2496standards

2497Complete construction clean-up and debris

2502removal.

250332. Respondent paid Webbe $2,500.00 in accordance with

2512paragraph 2b of the Mediation Agreement.

251833. Although work on the Project (as described in the

"2528Contract Proposal" attached to the Mediation Agreement) began

2536prior to January 1, 1996, as required by paragraph 1a of the

2548Mediation Agreement, the Project was not finished, or even near

2558completion, as of June 25, 1996.

256434. On that date, Webbe executed an Affidavit of Non-

2574Compliance, in which she asserted the following:

25811. A Mediation Agreement was executed by the

2589parties.

25902. Pursuant to said Agreement, Defendants

2596were to complete work by March 31, 1996.

26043. No work is being done on the property and

2614said construction is not completed.

26194. Defendants owe Plaintiff the amount of

2626Forty-four Thousand Eight Hundred Seventy-

2631seven and 30/100 ($44,877.30) Dollars.

263735. Webbe filed this Affidavit of Non-Compliance in Dade

2646County Circuit Case No 95-9669 CA 01 on June 28, 1996.

265736. On July 5, 1996, Dade County Circuit Court Judge Ronald

2668Friedman entered a Final Judgment in Dade County Circuit Case No

267995-9669 CA 01, which provided as follows:

2686THIS CAUSE having been agreed to by the

2694parties, pursuant to a Mediation Agreement,

2700and after being duly advised in the premises,

2708it is hereby,

2711ORDERED AND ADJUDGED:

2714That the Defendants ANAC SERVICES, INC., AND

2721EARL G. BURKS, are hereby ordered to pay to

2730the Plaintiff, ERYCINA WEBBE, the amount of

2737Forty-four Thousand Eight Hundred Seventy-

2742seven and 30/100 ($44,877.30) Dollars for all

2750of which let execution issue.

2755A copy of the Final Judgment was furnished Respondent and ANAC.

276637. The Final Judgment entered in Dade County Circuit Case

2776No 95-9669 CA 01 was not appealed, and it has not been vacated,

2789set aside, discharged, or fully satisfied.

279538. ANAC has performed only a portion of the repair work it

2807agreed (through Respondent) to perform (and was paid in full to

2818perform) for Webbe. 4

282239. At least some of the work was performed without the

2833appropriate building permit first having been obtained.

284040. A building permit for the Project was first obtained in

2851May of 1997.

285441. It was obtained by Webbe, after she had received

2864several code violation notices for unpermitted work on the Rental

2874Property.

287542. Webbe has had to spend approximately $20,000.00 (in

2885addition to what she paid ANAC) to pay for repairs that ANAC was

2898supposed to make under the Contract.

290443. The Rental Property is now in rentable condition,

2913although all of the repairs that ANAC (through Respondent) agreed

2923to make have yet to be made.

293044. The Rental Property has been rented and occupied since

2940August 14, 1997.

294345. Other than the $2,500.00 payment made in accordance

2953with paragraph 2b of the Mediation Agreement, Webbe has not been

2964refunded any of the Contract Price. 5

2971CONCLUSIONS OF LAW

297446. The Department has been vested with the statutory

2983authority to issue licenses to those qualified applicants seeking

2992to engage in the building contracting business in the State of

3003Florida. Section 489.115, Florida Statutes.

300847. A business entity, like ANAC, may obtain such a

3018license, but only through a licensed "qualifying agent." Section

3027489.119, Florida Statutes.

303048. There are two types of "qualifying agents": "primary

3040qualifying agents," and "secondary qualifying agents."

304649. A "primary qualifying agent" is defined in subsection

3055(4) of Section 489.105, Florida Statutes, as follows:

"3063Primary qualifying agent" means a person who

3070possesses the requisite skill, knowledge, and

3076experience, and has the responsibility to

3082supervise, direct, manage and control the

3088contracting activities of the business

3093organization with which he is connected; who

3100has the responsibility to supervise, direct,

3106manage, and control construction activities

3111on a job for which he has obtained the

3120building permit; and whose technical and

3126personal qualifications have been determined

3131by investigation and examination as provided

3137in this part, as attested by the

3144[D]epartment.

314550. A "secondary qualifying agent" is defined in subsection

3154(5) of Section 489.105, Florida Statutes, as follows:

"3162Secondary qualifying agent" means a person

3168who possesses the requisite skill, knowledge,

3174and experience, and has the responsibility to

3181supervise, direct, manage, and control

3186construction activities on a job for which he

3194has obtained a permit, and whose technical

3201and personal qualifications have been

3206determined by investigation and examination

3211as provided in this part, as attested by the

3220[D]epartment.

322151. The "responsibilities" of "qualifying agents" are

3228further described in Section 489.1195, Florida Statutes, which

3236provides, in pertinent part, as follows:

3242(1) A qualifying agent is a primary

3249qualifying agent unless he is a secondary

3256qualifying agent under this section.

3261(a) All primary qualifying agents for a

3268business organization are jointly and equally

3274responsible for supervision of all operations

3280of the business organization; for all field

3287work at all sites; and for financial matters,

3295both for the organization in general and for

3303each specific job. . . .

330952. The Construction Industry Licensing Board (Board) may

3317take any of the following punitive actions against a contractor

3327serving as the "primary qualifying agent" for a business entity

3337if (a) an administrative complaint is filed alleging that the

3347contractor or the business entity committed any of the acts

3357proscribed by Section 489.129(1), Florida Statutes, and (b) it is

3367shown that the allegations of the complaint are true: revoke or

3378suspend the contractor's license; place the contractor on

3386probation; reprimand the contractor; deny the renewal of the

3395contractor's license; impose an administrative fine not to exceed

3404$5,000.00 per violation; require financial restitution to the

3413victimized consumer(s); require the contractor to take continuing

3421education courses; or assess costs associated with the

3429Department's investigation and prosecution. Proof greater than a

3437mere preponderance of the evidence must be submitted. Clear and

3447convincing evidence of the contractor's guilt is required. See

3456Department of Banking and Finance, Division of Securities and

3465Investor Protection v. Osborne Stern and Company , 670 So. 2d 932,

3476935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

34871987); McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA

34991995); Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fla. 1st DCA

35111994); Nair v. Department of Business and Professional

3519Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save

3532v. Department of Business Regulation , 601 So. 2d 245 (Fla. 1st

3543DCA 1992); Munch v. Department of Professional Regulation , 592

3552So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department

3563of Law Enforcement , 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v.

3576Department of Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988);

3587Section 120.57(1)(h), Florida Statutes ("Findings of fact shall

3596be based on a preponderance of the evidence, except in penal or

3608licensure disciplinary proceedings or except as otherwise

3615provided by statute."). "'[C]lear and convincing evidence

3623requires that the evidence must be found to be credible; the

3634facts to which the witnesses testify must be distinctly

3643remembered; the testimony must be precise and explicit and the

3653witnesses must be lacking in confusion as to the facts in issue.

3665The evidence must be of such weight that it produces in the mind

3678of the trier of fact a firm belief or conviction, without

3689hesitancy, as to the truth of the allegations sought to be

3700established.'" In re Davey , 645 So. 2d 398, 404 (Fla. 1994),

3711quoting, with approval, from Slomowitz v. Walker , 429 So. 2d 797,

3722800 (Fla. 4th DCA 1983). Furthermore, the punitive action taken

3732against the contractor may be based only upon those offenses

3742specifically alleged in the administrative complaint. See

3749Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

37601st DCA 1996); Chrysler v. Department of Professional Regulation ,

3769627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of

3781Business and Professional Regulation , 625 So. 2d 1237, 1238-39

3790(Fla. 2d DCA 1993); Arpayoglou v. Department of Professional

3799Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992); Willner v.

3810Department of Professional Regulation, Board of Medicine , 563 So.

38192d 805, 806 (Fla. 1st DCA 1992); Celaya v. Department of

3830Professional Regulation, Board of Medicine , 560 So. 2d 383, 384

3840(Fla. 3d DCA 1990); Kinney v. Department of State , 501 So. 2d

3852129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of

3862Professional Regulation , 465 So. 2d 1324, 1325 (Fla. 1st DCA

38721985); Hunter v. Department of Professional Regulation , 458 So.

38812d 842, 844 (Fla. 2d DCA 1984).

388853. The Administrative Complaint issued in the instant case

3897alleges that punitive action should be taken against Respondent

3906for violations of Section 489.129(1)(h)2, Florida Statutes (Count

3914I), Section 489.129(1)(k), Florida Statutes (Count II), Section

3922489.129(1)(n), Florida Statutes (Count III), Section

3928489.129(1)(p), Florida Statutes (Count IV) and Section

3935489.129(1)(r), Florida Statutes (Count V), which were committed

3943in connection with a residential construction project that ANAC

3952(through Respondent) agreed to undertake for Erycina Webbe at a

3962time when Respondent was ANAC's primary qualifying agent.

397054. At all times material to the instant case, Section

3980489.129(1)(h)2, Florida Statutes, has authorized the Board to

3988take punitive action against a contractor if the contractor or

3998the business entity for which the contractor is a primary

4008qualifying agent:

4010Commit[s] mismanagement or misconduct in the

4016practice of contracting. Financial

4020mismanagement or misconduct occurs

4024when: . . .

40282. The contractor has abandoned a customer's

4035job and the percentage of completion is less

4043than the percentage of the total contract

4050price paid to the contractor as of the time

4059of abandonment, unless the contractor is

4065entitled to retain such funds under the terms

4073of the contract or refunds the excess funds

4081within 30 days after the date the job is

4090abandoned.

409155. At all times material to the instant case, Section

4101489.129(1)(k), Florida Statutes, has authorized the Board to take

4110punitive action against a contractor if the contractor or the

4120business entity for which the contractor is a primary qualifying

4130agent:

4131Abandon[s] a construction project in which

4137the contractor is engaged or under contract

4144as a contractor. A project may be presumed

4152abandoned after 90 days if the contractor

4159terminates the project without just cause or

4166without proper notification to the owner,

4172including the reason for termination, or

4178fails to perform work without just cause for

418690 consecutive days.

418956. At all times material to the instant case, Section

4199489.129(1)(n), Florida Statutes, has authorized the Board to take

4208punitive action against a contractor if the contractor or the

4218business entity for which the contractor is a primary qualifying

4228agent "[c]ommit[s] incompetency or misconduct in the practice of

4237contracting."

423857. At all times material to the instant case, Section

4248489.129(1)(p), Florida Statutes, has authorized the Board to take

4257punitive action against a contractor if the contractor or the

4267business entity for which the contractor is a primary qualifying

4277agent "[p]roceeds on any job without obtaining applicable local

4286building department permits and inspections."

429158. At all times material to the instant case, Section

4301489.129(1)(r), Florida Statutes, has authorized the Board to take

4310punitive action against a contractor if the contractor or the

4320business entity for which the contractor is a primary qualifying

4330agent:

4331Fail[s] to satisfy within a reasonable time,

4338the terms of a civil judgment obtained

4345against the licensee, or the business

4351organization qualified by the licensee,

4356relating to the practice of the licensee's

4363profession.

436459. The failure to satisfy a civil judgment in violation of

4375Section 489.129(1)(r), Florida Statutes, is a continuing offense

4383that is not completed until the judgment is satisfied. See Haupt

4394v. State , 499 So. 2d 16, 17 (Fla. 2d DCA 1986).

440560. According to Rule 61G4-17.001(23), Florida

4411Administrative Code, "[f]or purposes of Section 489.129(1)(r),

4418F.S., 'reasonable time' means ninety (90) days following the

4427entry of a civil judgment that is not appealed." 6

443761. A contractor may not defend against a charge of failing

4448to satisfy an unappealed civil judgment (in violation of Section

4458489.129(1)(r), Florida Statutes) by challenging the correctness

4465or the validity of the judgment. See The Florida Bar v. Onett ,

4477504 So. 2d 388, 389 (Fla. 1987); The Florida Bar v. Vernell , 374

4490So. 2d 473, 475 (Fla. 1979); Department of Health and

4500Rehabilitative Services v. Wood , 600 So. 2d 1298, 1300 (Fla. 5th

4511DCA 1992); McGraw v. Department of State, Division of Licensing ,

4521491 So. 2d 1193, 1195 (Fla. 1st DCA 1986).

453062. A licensed contractor who "[f]ail[s] to satisfy within

4539a reasonable time, the terms of a civil judgment obtained against

4550the licensee, or the business organization qualified by the

4559licensee, relating to the practice of the licensee's profession,"

4568is guilty of violating Section 489.129(1)(r), Florida Statutes,

4576regardless of the licensee's ability to pay the judgment. The

4586failure to pay need not be willful for there to be such a

4599violation. Section 489.129(1)(r), Florida Statutes, was designed

4606to protect the public against contractors who fail to meet their

4617legal obligations, whether they have the financial ability to do

4627so or not.

463063. The foregoing statutory provisions are "in effect,

4638. . . penal statute[s] . . . This being true the[y] must be

4652strictly construed and no conduct is to be regarded as included

4663within [them] that is not reasonably proscribed by [them].

4672Furthermore, if there are any ambiguities included such must be

4682construed in favor of the . . . licensee." Lester v. Department

4694of Professional and Occupational Regulations , 348 So. 2d 923, 925

4704(Fla. 1st DCA 1977); see also Whitaker v. Department of Insurance

4715and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996)("Because

4727the statute [Section 626.954(1)(x)4, Florida Statutes] is penal

4735in nature, it must be strictly construed with any doubt resolved

4746in favor of the licensee.").

475264. An examination of the evidentiary record in the instant

4762case reveals that the Department clearly and convincingly proved

4771(primarily through the testimony of Webbe 7 ) that the violations

4782alleged in Counts I through V of the Administrative Complaint

4792were committed and that these are violations for which Respondent

4802should be held liable. Punitive action against Respondent is

4811therefore warranted.

481365. In determining the particular punitive action the

4821Department should take against Respondent for having committed

4829these violations alleged in the Administrative Complaint, it is

4838necessary to consult Chapter 61G4-17, Florida Administrative

4845Code, which contains the Board's "disciplinary guidelines." Cf .

4854Williams v. Department of Transportation , 531 So. 2d 994, 996

4864(Fla. 1st DCA 1988)(agency required to comply with its

4873disciplinary guidelines when taking disciplinary action against

4880its employees).

488266. Rule 61G4-17.001, Florida Administrative Code,

4888provides, in pertinent part, as follows:

4894Normal Penalty Ranges. The following

4899guidelines shall be used in disciplinary

4905cases, absent aggravating or mitigating

4910circumstances and subject to the other

4916provisions of this Chapter. . . .

4923(8) 489.129(1)(h): Mismanagement or

4927misconduct causing financial harm to the

4933customer. First violation, $750 to $1,500

4940fine and/or probation; repeat violation,

4945$1,500 to $5,000 fine and/or probation,

4953suspension, or revocation. . . .

4959(11) 489.129(1)(k): Abandonment. First

4963violation, $500 to $2,000 fine; repeat

4970violation, revocation and $5,000 fine. . . .

4979(14) Misconduct or incompetency in the

4985practice of contracting as set forth in

4992Section 489.129(1)(n), Florida Statutes,

4996shall include, but is not limited to:

5003(a) Failure to honor a warranty.

5009(b) Violation of any provision of Chapter

501661G4, Florida Administrative Code, or Chapter

5022489, Part I, F.S.

5026(c) Failure to abide by the terms of a

5035mediation agreement.

5037(d) The following guidelines shall apply to

5044cases involving misconduct or incompetency in

5050the practice of contracting, absent

5055aggravating or mitigating circumstances:

50591. Misconduct by failure to honor warranty.

5066First violation, $500 to $1,000 fine; repeat

5074violation, $1,000 to $2,000 fine and/or

5082probation, suspension, or revocation.

50862. Violation of any provision of Chapter

509361G4, Florida Administrative Code, or Chapter

5099489, Part I, F.S. First violation, $500 to

5107$1,000 fine; repeat violations $1,000 to

5115$5,000 fine and/or probation, suspension or

5122revocation.

51233. Any other form of misconduct or

5130incompetency. First violation, $250 to

5135$1,000 fine and/or probation; repeat

5141violations $1,000 to $5,000 fine and/or

5149probation, suspension or revocation. . . .

5156(16) 489.129(1)(p): Proceeding on any job

5162without obtaining applicable local building

5167department permits and/or inspections.

5171(a) Late permits. Contractor pulls permit

5177after starting job but prior to completion of

5185same and does not miss any inspections.

5192First violation, $100 fine; repeat violation,

5198$500 to $1,000 fine.

5203(b) Failure to call for inspections. First

5210violation, $100 fine; repeat violation, $500

5216to $2,500 fine and probation, suspension, or

5224revocation.

5225(c) Job finished without a permit having

5232been pulled, or no permit until caught after

5240job, or late permit during the job resulting

5248in missed inspection or inspections. First

5254violation, $500 to $1,500 fine; repeat

5261violation, $1,000 to $2,500 fine and/or

5269probation, suspension, or revocation. . . .

5276(18) Failure to satisfy a civil judgment

5283obtained against the licensee or the business

5290organization qualified by the licensee within

5296a reasonable time. First violation, $500 to

5303$1,000 fine and/or proof of satisfaction of

5311civil judgment; repeat violation, $1,000 to

5318$5,000 fine and/or proof of satisfaction of

5326civil judgment, probation, suspension or

5331revocation. . . .

5335(20) For any violation occurring after

5341October 1, 1989, the board may assess the

5349costs of investigation and prosecution. The

5355assessment of such costs may be made in

5363addition to the penalties provided by these

5370guidelines without demonstration of

5374aggravating factors set forth in rule 61G4-

538117.002.

5382(21) For any violation occurring after

5388October 1, 1988, the board may order the

5396contractor to make restitution in the amount

5403of financial loss suffered by the consumer.

5410Such restitution may be ordered in addition

5417to the penalties provided by these guidelines

5424without demonstration of aggravating factors

5429set forth in rule 61G4-17.002, and to the

5437extent that such order does not contravene

5444federal bankruptcy law. . . .

5450(23) . . . . The Board will consider a

5460mutually agreed upon payment plan as

5466satisfaction of such a judgment so long as

5474the payments are current.

547867. "Repeat violation," as used in Chapter 61G4-17, Florida

5487Administrative Code, is described in Rule 61G4-17.003, Florida

5495Administrative Code, as follows:

5499(1) As used in this rule, a repeat violation

5508is any violation on which disciplinary action

5515is being taken where the same licensee had

5523previously had disciplinary action taken

5528against him or received a letter of guidance

5536in a prior case; and said definition is to

5545apply (i) regardless of the chronological

5551relationship of the acts underlying the

5557various disciplinary actions, and

5561(ii) regardless of whether the violations in

5568the present or prior disciplinary actions are

5575of the same or different subsections of the

5583disciplinary statutes.

5585(2) The penalty given in the above list for

5594repeat violations is intended to apply only

5601to situations where the repeat violation is

5608of a different subsection of Chapter 489 than

5616the first violation. Where, on the other

5623hand, the repeat violation is the very same

5631type of violation as the first violation, the

5639penalty set out above will generally be

5646increased over what is otherwise shown for

5653repeat violations on the above list.

565968. Rule 61G4-17.005, Florida Administrative Code, provides

5666that "[w]here several of the . . . violations [enumerated in

5677Rule 61G4-17.001, Florida Administrative Code] shall occur in one

5686or several cases being considered together, the penalties shall

5695normally be cumulative and consecutive."

570069. The aggravating and mitigating circumstances which are

5708to be considered before a particular penalty is chosen are listed

5719in Rule 61G4-17.002, Florida Administrative Code. They are as

5728follows:

5729(1) Monetary or other damage to the

5736licensee's customer, in any way associated

5742with the violation, which damage the licensee

5749has not relieved, as of the time the penalty

5758is to be assessed. (This provision shall not

5766be given effect to the extent it would

5774contravene federal bankruptcy law.)

5778(2) Actual job-site violations of building

5784codes, or conditions exhibiting gross

5789negligence, incompetence, or misconduct by

5794the licensee, which have not been corrected

5801as of the time the penalty is being assessed.

5810(3) The severity of the offense.

5816(4) The danger to the public.

5822(5) The number of repetitions of offenses.

5829(6) The number of complaints filed against

5836the licensee.

5838(7) The length of time the licensee has

5846practiced.

5847(8) The actual damage, physical or

5853otherwise, to the licensee's customer.

5858(9) The deterrent effect of the penalty

5865imposed.

5866(10) The effect of the penalty upon the

5874licensee's livelihood.

5876(11) Any efforts at rehabilitation.

5881(12) Any other mitigating or aggravating 8

5888circumstances.

588970. Having considered the facts of the instant case in

5899light of the provisions of Chapter 61G4-17, Florida

5907Administrative Code, it is the view of the undersigned that the

5918appropriate punitive action to take against Respondent in the

5927instant case is to require him to: (a) pay a fine in the amount

5941of $4,500.00; (b) submit proof of satisfaction of the Final

5952Judgment entered against him in Dade County Court Case No. 95-

59639669 CA 01; and (c) reimburse the Department for all reasonable

5974costs associated with the investigation that led to the filing of

5985the charges set forth in the Administrative Complaint 9 and for

5996all reasonable costs associated with its successful prosecution

6004of these charges. 10

6008RECOMMENDATION

6009Based on the foregoing Findings of Fact and Conclusions of

6019Law, it is

6022RECOMMENDED that the Department issue a final order

6030(1) finding Respondent guilty of the violations alleged in all

6040five counts of the Administrative Complaint, and (2) disciplining

6049Respondent for having committed these violations by requiring him

6058to: (a) pay a fine of $4,500.00; (b) submit proof of

6070satisfaction of the Final Default Judgment entered in Dade County

6080Court Case No. 95-9669 CA; and (c) reimburse the Department for

6091all reasonable costs associated with the Department's

6098investigation and prosecution of the charges set forth in the

6108Administrative Complaint.

6110DONE AND ENTERED this 24th day of November, 1997, in

6120Tallahassee, Leon County, Florida.

6124___________________________________

6125STUART M. LERNER

6128Administrative Law Judge

6131Division of Administrative Hearings

6135The DeSoto Building

61381230 Apalachee Parkway

6141Tallahassee, Florida 32399-3060

6144(904) 488-9675 SUNCOM 278-9675

6148Fax Filing (904) 921-6847

6152Filed with the Clerk of the

6158Division of Administrative Hearings

6162this 24th day of November, 1997.

6168ENDNOTES

61691 The hearing was originally scheduled to commence on July 23,

61801997, but was continued, at Respondent's request.

61872 This finding is based on Webbe's testimony concerning the

6197matter, which the undersigned finds more believable than

6205Respondent's testimony to the contrary.

62103 The complaint had erroneously alleged that the Contract price

6220was the full amount of the Settlement Check, rather than said

6231amount, less $5,000.00.

62354 Moreover, the repair work that ANAC has done has not been done

6248entirely to Webbe's satisfaction.

62525 Respondent testified that he returned $30,000.00 to Webbe

6262shortly after depositing the Settlement Check in ANAC's account.

6271This testimony, which is not supported by any documentary

6280evidence, has been rejected because it is less credible than

6290Webbe's testimony to the contrary.

62956 Because it merely clarified existing law (by defining the term

"6306reasonable time," as used in Section 489.129(1)(r), Florida

6314Statutes), Rule 61G4-17.001(23), Florida Administrative Code, may

6321be applied in cases where the alleged violation of Section

6331489.129(1)(r), Florida Statutes, occurred prior to its [Rule

633961G4-17.001(23)'s] effective date. Cf. Agency for Health Care

6347Administration v. Associated Industries of Florida, Inc. , 678 So.

63562d 1239, 1256 (Fla. 1996)("The law is clear in this state that

6369there can be no retroactive application of substantive law

6378without a clear directive from the legislature. However,

6386procedural provisions and modifications for the purposes of

6394clarity are not so restricted."); Nussbaum v. Mortgage Service

6404America Company , 913 F. Supp. 1548, 1557 (S.D. Fla. 1995)("A new

6416rule intended to clarify or apply the law to a new factual

6428setting does not constitute a substantive change in the law. A

6439rule meant to clarify an unsettled area of the law does not

6451change the law, but rather clarifies 'what the law according to

6462the agency is and has always been,' and 'is no more retroactive

6475in its operation than is a judicial determination construing and

6485applying a statute to a case in hand.'")

64947 There is no "rule that a single witness's testimony can never

6506provide clear and convincing evidence that a licensing or

6515practice act has been violated." Werner v. Department of

6524Insurance and Treasurer , 689 So. 2d 1211, 1213 (Fla. 1st DCA

65351997).

65368 A licensee's penalty may not be increased beyond the "normal

6547penalty ranges" based upon acts of misconduct that are not

6557alleged in the administrative complaint. See Klein v. Department

6566of Business and Processional Regulation , 625 So. 2d 1237, 1238-39

6576(Fla. 2d DCA 1993); Bernal v. Department of Professional

6585Regulation, Board of Medicine , 517 So. 2d 113, 114 (Fla. 3d DCA

65971987), approved , 531 So. 2d 967 (Fla. 1988).

66059 Pursuant to Rule 61G4-12.018, Florida Administrative Code, the

6614Department is required

6617to submit to the Board an itemized listing of

6626all costs related to investigation and

6632prosecution of an administrative complaint

6637when said complaint is brought before the

6644Board for final agency action.

6649Fundamental fairness requires that the Board provide a respondent

6658with an opportunity to dispute and challenge the accuracy and/or

6668reasonableness of the Department's itemization of investigative

6675and prosecutorial costs before determining the amount of costs a

6685respondent will be required to pay.

669110 The undersigned disagrees with the suggestion made by the

6701Department in its proposed recommended order that there is reason

6711to deviate from the "normal penalty ranges" in the instant case

6722and revoke Respondent's license. The Department has not shown

6731that the circumstances surrounding Respondent's violations are

6738significantly more "aggravating" than those which are typically

6746present when a contractor engages in the type of misconduct in

6757which it has been alleged and proven Respondent has engaged.

6767COPIES FURNISHED:

6769Theodore R. Gay, Senior Attorney

6774Seymour Stern, OPS Attorney

6778Department of Business

6781and Professional Regulation

6784401 Northwest Second Avenue, Suite N-607

6790Miami, Florida 33128

6793Earl G. Burks, pro se

679812350 Southwest 132nd Court, No. 205

6804Miami, Florida 33186

6807Rodney Hurst, Executive Director

6811Construction Industry Licensing Board

68157960 Arlington Expressway, Suite 300

6820Jacksonville, Florida 32211

6823Lynda L. Goodgame, General Counsel

6828Department of Business

6831and Professional Regulation

68341940 North Monroe Street

6838Tallahassee, Florida 32399-0792

6841NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6847All parties have the right to submit written exceptions within 15

6858days from the date of this recommended order. Any exceptions to

6869this recommended order should be filed with the agency that will

6880issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 03/20/1998
Proceedings: Final Order filed.
PDF:
Date: 03/19/1998
Proceedings: Agency Final Order
PDF:
Date: 03/19/1998
Proceedings: Recommended Order
PDF:
Date: 11/24/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 10/28/97.
Date: 11/20/1997
Proceedings: Letter to T. Gay & CC: E. Burks from Judge Lerner (& enclosed cc: respondent`s proposed recommended order) sent out.
Date: 11/18/1997
Proceedings: Letter to Judge Lerner from Earl Burks (RE: proposed recommended order) filed.
Date: 11/17/1997
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 11/04/1997
Proceedings: (Petitioner) Notice of Filing and Serving Petitioner`s Exhibit II; Exhibit filed.
Date: 11/03/1997
Proceedings: Notice of Filing and Serving Respondent`s Exhibit 6 & 7; Exhibits filed.
Date: 10/28/1997
Proceedings: Video Hearing Held; see case file for applicable time frames.
Date: 10/27/1997
Proceedings: Notice of Appearance as Co-Counsel (S. Stern) filed.
Date: 10/27/1997
Proceedings: Letter to Stuart Lerner from Earl Burks (Re: Exhibits and Hearing Date) (filed via facsimile).
Date: 10/20/1997
Proceedings: Notice of Filing and Serving Petitioner`s Exhibit 10; Exhibit 10 filed.
Date: 08/20/1997
Proceedings: Notice of Hearing by Video Teleconference sent out. (Video Final Hearing set for 10/28/97; 9:15am; Miami & Tallahassee)
Date: 08/01/1997
Proceedings: (Petitioner) Conferred Response to July 23, 1997 Order Granting Continuance (filed via facsimile).
Date: 07/23/1997
Proceedings: Order Granting Continuance sent out. (hearing cancelled; parties to give available hearing information by 8/1/97)
Date: 07/14/1997
Proceedings: (From T. Gay) Notice of Substitution of Counsel; Notice of Filing and Serving Exhibits; Exhibits filed.
Date: 05/02/1997
Proceedings: Notice of Hearing by Video sent out. (Video Final Hearing set for 7/23/97; 1:00pm; Miami & Tallahassee)
Date: 04/08/1997
Proceedings: (Petitioner) Response to Initial Order (filed via facsimile).
Date: 03/27/1997
Proceedings: Initial Order issued.
Date: 03/21/1997
Proceedings: Agency Referral letter; Statement of Facts in Dispute, letter form; Administrative Complaint; Election of Rights filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
03/21/1997
Date Assignment:
07/21/1997
Last Docket Entry:
03/20/1998
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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