97-001434
Construction Industry Licensing Board vs.
Earl G. Burks
Status: Closed
Recommended Order on Monday, November 24, 1997.
Recommended Order on Monday, November 24, 1997.
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.
- Date
- Proceedings
- Date: 03/20/1998
- Proceedings: Final Order filed.
- 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.