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

2253Replace interior door unit

2257Paint door/trim and jamb

2261Replace closet door

2264Seal then paint the walls and ceiling

2271twice (3 coats)

2274Install rod in closet

2278Install carpet/tile as per owner's

2283specifications

2284EXTERIOR LEFT SIDE

2287Description

2288Clean/paint stucco

2290R/R damaged storm shutter

2294ROOM: BEDROOM NO. 1/CLOSET

2298DESCRIPTION

2299Install B att insulation

2303R/R ceiling drywall- hung taped, light

2309texture, ready for paint

2313Chem. clean window

2316Seal then paint the walls and ceiling

2323twice (3 coats)

2326R/R interior door unit

2330Paint door/trim and jamb

2334R/R bi-fold closet door

2338Paint door

2340Install carpet/tile as per owner's

2345specifications

2346ROOM: BEDROOM NO. 2/CLOSET

2350Description

2351R/R ceiling/wall drywall- hung taped, light

2357texture, ready for paint

2361Install Batt insulation

2364ROOM: HALL/CLOSET

2366Description

2367Chem. clean/seal then paint the walls and

2374ceiling twice (3 coats)

2378Install carpet/tile as per owner's

2383specifications

2384Install Batt insulation

2387ROOM: HALL BATH

2390Description

2391Chem. clean tub

2394Chem. clean toilet

2397R/R toilet seat

2400Chem. clean sink/faucet

2403Seal/paint walls/ceilings

2405Chem. clean window

2408Chem. clean tile/grout

2411Paint int. door/frame

2414R/R tub/shower door

2417Install Batt insulation

2420ROOM: KITCHEN

2422Description

2423Seal then paint the walls and ceiling

2430twice (3) coats

2433R/R cabinetry- lower base units

2438R/R cabinetry- upper wall units

2443R/R countertop- flat laid formica

2448R/R sink/faucet

2450Install Batt insulation

2453ROOM: LIVING ROOM/DINING ROOM

2457Description

2458Seal then paint the walls and ceiling

2465twice (3) coats

2468Chem. clean aluminum windows

2472Install carpet/tile as per owner's

2477specifications

2478MISCELLANEOUS

2479Description

2480R/R damaged main entrance panel

2485Upgrade electrical system to current S.F.B.C.

2491standards

2492Complete construction clean-up and debris

2497removal.

249832. Respondent paid Webbe $2,500.00 in accordance with

2507paragraph 2b of the Mediation Agreement.

251333. Although work on the Project (as described in the

"2523Contract Proposal" attached to the Mediation Agreement) began

2531prior to January 1, 1996, as required by paragraph 1a of the

2543Mediation Agreement, the Project was not finished, or even near

2553completion, as of June 25, 1996.

255934. On that date, Webbe executed an Affidavit of Non-

2569Compliance, in which she asserted the following:

25761. A Mediation Agreement was executed by the

2584parties.

25852. Pursuant to said Agreement, Defendants

2591were to complete work by March 31, 1996.

25993. No work is being done on the property and

2609said construction is not completed.

26144. Defendants owe Plaintiff the amount of

2621Forty-four Thousand Eight Hundred Seventy-

2626seven and 30/100 ($44,877.30) Dollars.

263235. Webbe filed this Affidavit of Non-Compliance in Dade

2641County Circuit Case No 95-9669 CA 01 on June 28, 1996.

265236. On July 5, 1996, Dade County Circuit Court Judge Ronald

2663Friedman entered a Final Judgment in Dade County Circuit Case No

267495-9669 CA 01, which provided as follows:

2681THIS CAUSE having been agreed to by the

2689parties, pursuant to a Mediation Agreement,

2695and after being duly advised in the premises,

2703it is hereby,

2706ORDERED AND ADJUDGED:

2709That the Defendants ANAC SERVICES, INC., AND

2716EARL G. BURKS, are hereby ordered to pay to

2725the Plaintiff, ERYCINA WEBBE, the amount of

2732Forty-four Thousand Eight Hundred Seventy-

2737seven and 30/100 ($44,877.30) Dollars for all

2745of which let execution issue.

2750A copy of the Final Judgment was furnished Respondent and ANAC.

276137. The Final Judgment entered in Dade County Circuit Case

2771No 95-9669 CA 01 was not appealed, and it has not been vacated,

2784set aside, discharged, or fully satisfied.

279038. ANAC has performed only a portion of the repair work it

2802agreed (through Respondent) to perform (and was paid in full to

2813perform) for Webbe. 4

281739. At least some of the work was performed without the

2828appropriate building permit first having been obtained.

283540. A building permit for the Project was first obtained in

2846May of 1997.

284941. It was obtained by Webbe, after she had received

2859several code violation notices for unpermitted work on the Rental

2869Property.

287042. Webbe has had to spend approximately $20,000.00 (in

2880addition to what she paid ANAC) to pay for repairs that ANAC was

2893supposed to make under the Contract.

289943. The Rental Property is now in rentable condition,

2908although all of the repairs that ANAC (through Respondent) agreed

2918to make have yet to be made.

292544. The Rental Property has been rented and occupied since

2935August 14, 1997.

293845. Other than the $2,500.00 payment made in accordance

2948with paragraph 2b of the Mediation Agreement, Webbe has not been

2959refunded any of the Contract Price. 5

2966CONCLUSIONS OF LAW

296946. The Department has been vested with the statutory

2978authority to issue licenses to those qualified applicants seeking

2987to engage in the building contracting business in the State of

2998Florida. Section 489.115, Florida Statutes.

300347. A business entity, like ANAC, may obtain such a

3013license, but only through a licensed "qualifying agent." Section

3022489.119, Florida Statutes.

302548. There are two types of "qualifying agents": "primary

3035qualifying agents," and "secondary qualifying agents."

304149. A "primary qualifying agent" is defined in subsection

3050(4) of Section 489.105, Florida Statutes, as follows:

"3058Primary qualifying agent" means a person who

3065possesses the requisite skill, knowledge, and

3071experience, and has the responsibility to

3077supervise, direct, manage and control the

3083contracting activities of the business

3088organization with which he is connected; who

3095has the responsibility to supervise, direct,

3101manage, and control construction activities

3106on a job for which he has obtained the

3115building permit; and whose technical and

3121personal qualifications have been determined

3126by investigation and examination as provided

3132in this part, as attested by the

3139[D]epartment.

314050. A "secondary qualifying agent" is defined in subsection

3149(5) of Section 489.105, Florida Statutes, as follows:

"3157Secondary qualifying agent" means a person

3163who possesses the requisite skill, knowledge,

3169and experience, and has the responsibility to

3176supervise, direct, manage, and control

3181construction activities on a job for which he

3189has obtained a permit, and whose technical

3196and personal qualifications have been

3201determined by investigation and examination

3206as provided in this part, as attested by the

3215[D]epartment.

321651. The "responsibilities" of "qualifying agents" are

3223further described in Section 489.1195, Florida Statutes, which

3231provides, in pertinent part, as follows:

3237(1) A qualifying agent is a primary

3244qualifying agent unless he is a secondary

3251qualifying agent under this section.

3256(a) All primary qualifying agents for a

3263business organization are jointly and equally

3269responsible for supervision of all operations

3275of the business organization; for all field

3282work at all sites; and for financial matters,

3290both for the organization in general and for

3298each specific job. . . .

330452. The Construction Industry Licensing Board (Board) may

3312take any of the following punitive actions against a contractor

3322serving as the "primary qualifying agent" for a business entity

3332if (a) an administrative complaint is filed alleging that the

3342contractor or the business entity committed any of the acts

3352proscribed by Section 489.129(1), Florida Statutes, and (b) it is

3362shown that the allegations of the complaint are true: revoke or

3373suspend the contractor's license; place the contractor on

3381probation; reprimand the contractor; deny the renewal of the

3390contractor's license; impose an administrative fine not to exceed

3399$5,000.00 per violation; require financial restitution to the

3408victimized consumer(s); require the contractor to take continuing

3416education courses; or assess costs associated with the

3424Department's investigation and prosecution. Proof greater than a

3432mere preponderance of the evidence must be submitted. Clear and

3442convincing evidence of the contractor's guilt is required. See

3451Department of Banking and Finance, Division of Securities and

3460Investor Protection v. Osborne Stern and Company , 670 So. 2d 932,

3471935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

34821987); McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA

34941995); Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fla. 1st DCA

35061994); Nair v. Department of Business and Professional

3514Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save

3527v. Department of Business Regulation , 601 So. 2d 245 (Fla. 1st

3538DCA 1992); Munch v. Department of Professional Regulation , 592

3547So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department

3558of Law Enforcement , 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v.

3571Department of Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988);

3582Section 120.57(1)(h), Florida Statutes ("Findings of fact shall

3591be based on a preponderance of the evidence, except in penal or

3603licensure disciplinary proceedings or except as otherwise

3610provided by statute."). "'[C]lear and convincing evidence

3618requires that the evidence must be found to be credible; the

3629facts to which the witnesses testify must be distinctly

3638remembered; the testimony must be precise and explicit and the

3648witnesses must be lacking in confusion as to the facts in issue.

3660The evidence must be of such weight that it produces in the mind

3673of the trier of fact a firm belief or conviction, without

3684hesitancy, as to the truth of the allegations sought to be

3695established.'" In re Davey , 645 So. 2d 398, 404 (Fla. 1994),

3706quoting, with approval, from Slomowitz v. Walker , 429 So. 2d 797,

3717800 (Fla. 4th DCA 1983). Furthermore, the punitive action taken

3727against the contractor may be based only upon those offenses

3737specifically alleged in the administrative complaint. See

3744Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

37551st DCA 1996); Chrysler v. Department of Professional Regulation ,

3764627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of

3776Business and Professional Regulation , 625 So. 2d 1237, 1238-39

3785(Fla. 2d DCA 1993); Arpayoglou v. Department of Professional

3794Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992); Willner v.

3805Department of Professional Regulation, Board of Medicine , 563 So.

38142d 805, 806 (Fla. 1st DCA 1992); Celaya v. Department of

3825Professional Regulation, Board of Medicine , 560 So. 2d 383, 384

3835(Fla. 3d DCA 1990); Kinney v. Department of State , 501 So. 2d

3847129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of

3857Professional Regulation , 465 So. 2d 1324, 1325 (Fla. 1st DCA

38671985); Hunter v. Department of Professional Regulation , 458 So.

38762d 842, 844 (Fla. 2d DCA 1984).

388353. The Administrative Complaint issued in the instant case

3892alleges that punitive action should be taken against Respondent

3901for violations of Section 489.129(1)(h)2, Florida Statutes (Count

3909I), Section 489.129(1)(k), Florida Statutes (Count II), Section

3917489.129(1)(n), Florida Statutes (Count III), Section

3923489.129(1)(p), Florida Statutes (Count IV) and Section

3930489.129(1)(r), Florida Statutes (Count V), which were committed

3938in connection with a residential construction project that ANAC

3947(through Respondent) agreed to undertake for Erycina Webbe at a

3957time when Respondent was ANAC's primary qualifying agent.

396554. At all times material to the instant case, Section

3975489.129(1)(h)2, Florida Statutes, has authorized the Board to

3983take punitive action against a contractor if the contractor or

3993the business entity for which the contractor is a primary

4003qualifying agent:

4005Commit[s] mismanagement or misconduct in the

4011practice of contracting. Financial

4015mismanagement or misconduct occurs

4019when: . . .

40232. The contractor has abandoned a customer's

4030job and the percentage of completion is less

4038than the percentage of the total contract

4045price paid to the contractor as of the time

4054of abandonment, unless the contractor is

4060entitled to retain such funds under the terms

4068of the contract or refunds the excess funds

4076within 30 days after the date the job is

4085abandoned.

408655. At all times material to the instant case, Section

4096489.129(1)(k), Florida Statutes, has authorized the Board to take

4105punitive action against a contractor if the contractor or the

4115business entity for which the contractor is a primary qualifying

4125agent:

4126Abandon[s] a construction project in which

4132the contractor is engaged or under contract

4139as a contractor. A project may be presumed

4147abandoned after 90 days if the contractor

4154terminates the project without just cause or

4161without proper notification to the owner,

4167including the reason for termination, or

4173fails to perform work without just cause for

418190 consecutive days.

418456. At all times material to the instant case, Section

4194489.129(1)(n), Florida Statutes, has authorized the Board to take

4203punitive action against a contractor if the contractor or the

4213business entity for which the contractor is a primary qualifying

4223agent "[c]ommit[s] incompetency or misconduct in the practice of

4232contracting."

423357. At all times material to the instant case, Section

4243489.129(1)(p), Florida Statutes, has authorized the Board to take

4252punitive action against a contractor if the contractor or the

4262business entity for which the contractor is a primary qualifying

4272agent "[p]roceeds on any job without obtaining applicable local

4281building department permits and inspections."

428658. At all times material to the instant case, Section

4296489.129(1)(r), Florida Statutes, has authorized the Board to take

4305punitive action against a contractor if the contractor or the

4315business entity for which the contractor is a primary qualifying

4325agent:

4326Fail[s] to satisfy within a reasonable time,

4333the terms of a civil judgment obtained

4340against the licensee, or the business

4346organization qualified by the licensee,

4351relating to the practice of the licensee's

4358profession.

435959. The failure to satisfy a civil judgment in violation of

4370Section 489.129(1)(r), Florida Statutes, is a continuing offense

4378that is not completed until the judgment is satisfied. See Haupt

4389v. State , 499 So. 2d 16, 17 (Fla. 2d DCA 1986).

440060. According to Rule 61G4-17.001(23), Florida

4406Administrative Code, "[f]or purposes of Section 489.129(1)(r),

4413F.S., 'reasonable time' means ninety (90) days following the

4422entry of a civil judgment that is not appealed." 6

443261. A contractor may not defend against a charge of failing

4443to satisfy an unappealed civil judgment (in violation of Section

4453489.129(1)(r), Florida Statutes) by challenging the correctness

4460or the validity of the judgment. See The Florida Bar v. Onett ,

4472504 So. 2d 388, 389 (Fla. 1987); The Florida Bar v. Vernell , 374

4485So. 2d 473, 475 (Fla. 1979); Department of Health and

4495Rehabilitative Services v. Wood , 600 So. 2d 1298, 1300 (Fla. 5th

4506DCA 1992); McGraw v. Department of State, Division of Licensing ,

4516491 So. 2d 1193, 1195 (Fla. 1st DCA 1986).

452562. A licensed contractor who "[f]ail[s] to satisfy within

4534a reasonable time, the terms of a civil judgment obtained against

4545the licensee, or the business organization qualified by the

4554licensee, relating to the practice of the licensee's profession,"

4563is guilty of violating Section 489.129(1)(r), Florida Statutes,

4571regardless of the licensee's ability to pay the judgment. The

4581failure to pay need not be willful for there to be such a

4594violation. Section 489.129(1)(r), Florida Statutes, was designed

4601to protect the public against contractors who fail to meet their

4612legal obligations, whether they have the financial ability to do

4622so or not.

462563. The foregoing statutory provisions are "in effect,

4633. . . penal statute[s] . . . This being true the[y] must be

4647strictly construed and no conduct is to be regarded as included

4658within [them] that is not reasonably proscribed by [them].

4667Furthermore, if there are any ambiguities included such must be

4677construed in favor of the . . . licensee." Lester v. Department

4689of Professional and Occupational Regulations , 348 So. 2d 923, 925

4699(Fla. 1st DCA 1977); see also Whitaker v. Department of Insurance

4710and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996)("Because

4722the statute [Section 626.954(1)(x)4, Florida Statutes] is penal

4730in nature, it must be strictly construed with any doubt resolved

4741in favor of the licensee.").

474764. An examination of the evidentiary record in the instant

4757case reveals that the Department clearly and convincingly proved

4766(primarily through the testimony of Webbe 7 ) that the violations

4777alleged in Counts I through V of the Administrative Complaint

4787were committed and that these are violations for which Respondent

4797should be held liable. Punitive action against Respondent is

4806therefore warranted.

480865. In determining the particular punitive action the

4816Department should take against Respondent for having committed

4824these violations alleged in the Administrative Complaint, it is

4833necessary to consult Chapter 61G4-17, Florida Administrative

4840Code, which contains the Board's "disciplinary guidelines." Cf.

4848Williams v. Department of Transportation , 531 So. 2d 994, 996

4858(Fla. 1st DCA 1988)(agency required to comply with its

4867disciplinary guidelines when taking disciplinary action against

4874its employees).

487666. Rule 61G4-17.001, Florida Administrative Code,

4882provides, in pertinent part, as follows:

4888Normal Penalty Ranges. The following

4893guidelines shall be used in disciplinary

4899cases, absent aggravating or mitigating

4904circumstances and subject to the other

4910provisions of this Chapter. . . .

4917(8) 489.129(1)(h): Mismanagement or

4921misconduct causing financial harm to the

4927customer. First violation, $750 to $1,500

4934fine and/or probation; repeat violation,

4939$1,500 to $5,000 fine and/or probation,

4947suspension, or revocation. . . .

4953(11) 489.129(1)(k): Abandonment. First

4957violation, $500 to $2,000 fine; repeat

4964violation, revocation and $5,000 fine. . . .

4973(14) Misconduct or incompetency in the

4979practice of contracting as set forth in

4986Section 489.129(1)(n), Florida Statutes,

4990shall include, but is not limited to:

4997(a) Failure to honor a warranty.

5003(b) Violation of any provision of Chapter

501061G4, Florida Administrative Code, or Chapter

5016489, Part I, F.S.

5020(c) Failure to abide by the terms of a

5029mediation agreement.

5031(d) The following guidelines shall apply to

5038cases involving misconduct or incompetency in

5044the practice of contracting, absent

5049aggravating or mitigating circumstances:

50531. Misconduct by failure to honor warranty.

5060First violation, $500 to $1,000 fine; repeat

5068violation, $1,000 to $2,000 fine and/or

5076probation, suspension, or revocation.

50802. Violation of any provision of Chapter

508761G4, Florida Administrative Code, or Chapter

5093489, Part I, F.S. First violation, $500 to

5101$1,000 fine; repeat violations $1,000 to

5109$5,000 fine and/or probation, suspension or

5116revocation.

51173. Any other form of misconduct or

5124incompetency. First violation, $250 to

5129$1,000 fine and/or probation; repeat

5135violations $1,000 to $5,000 fine and/or

5143probation, suspension or revocation. . . .

5150(16) 489.129(1)(p): Proceeding on any job

5156without obtaining applicable local building

5161department permits and/or inspections.

5165(a) Late permits. Contractor pulls permit

5171after starting job but prior to completion of

5179same and does not miss any inspections.

5186First violation, $100 fine; repeat violation,

5192$500 to $1,000 fine.

5197(b) Failure to call for inspections. First

5204violation, $100 fine; repeat violation, $500

5210to $2,500 fine and probation, suspension, or

5218revocation.

5219(c) Job finished without a permit having

5226been pulled, or no permit until caught after

5234job, or late permit during the job resulting

5242in missed inspection or inspections. First

5248violation, $500 to $1,500 fine; repeat

5255violation, $1,000 to $2,500 fine and/or

5263probation, suspension, or revocation. . . .

5270(18) Failure to satisfy a civil judgment

5277obtained against the licensee or the business

5284organization qualified by the licensee within

5290a reasonable time. First violation, $500 to

5297$1,000 fine and/or proof of satisfaction of

5305civil judgment; repeat violation, $1,000 to

5312$5,000 fine and/or proof of satisfaction of

5320civil judgment, probation, suspension or

5325revocation. . . .

5329(20) For any violation occurring after

5335October 1, 1989, the board may assess the

5343costs of investigation and prosecution. The

5349assessment of such costs may be made in

5357addition to the penalties provided by these

5364guidelines without demonstration of

5368aggravating factors set forth in rule 61G4-

537517.002.

5376(21) For any violation occurring after

5382October 1, 1988, the board may order the

5390contractor to make restitution in the amount

5397of financial loss suffered by the consumer.

5404Such restitution may be ordered in addition

5411to the penalties provided by these guidelines

5418without demonstration of aggravating factors

5423set forth in rule 61G4-17.002, and to the

5431extent that such order does not contravene

5438federal bankruptcy law. . . .

5444(23) . . . . The Board will consider a

5454mutually agreed upon payment plan as

5460satisfaction of such a judgment so long as

5468the payments are current.

547267. "Repeat violation," as used in Chapter 61G4-17, Florida

5481Administrative Code, is described in Rule 61G4-17.003, Florida

5489Administrative Code, as follows:

5493(1) As used in this rule, a repeat violation

5502is any violation on which disciplinary action

5509is being taken where the same licensee had

5517previously had disciplinary action taken

5522against him or received a letter of guidance

5530in a prior case; and said definition is to

5539apply (i) regardless of the chronological

5545relationship of the acts underlying the

5551various disciplinary actions, and

5555(ii) regardless of whether the violations in

5562the present or prior disciplinary actions are

5569of the same or different subsections of the

5577disciplinary statutes.

5579(2) The penalty given in the above list for

5588repeat violations is intended to apply only

5595to situations where the repeat violation is

5602of a different subsection of Chapter 489 than

5610the first violation. Where, on the other

5617hand, the repeat violation is the very same

5625type of violation as the first violation, the

5633penalty set out above will generally be

5640increased over what is otherwise shown for

5647repeat violations on the above list.

565368. Rule 61G4-17.005, Florida Administrative Code, provides

5660that "[w]here several of the . . . violations [enumerated in

5671Rule 61G4-17.001, Florida Administrative Code] shall occur in one

5680or several cases being considered together, the penalties shall

5689normally be cumulative and consecutive."

569469. The aggravating and mitigating circumstances which are

5702to be considered before a particular penalty is chosen are listed

5713in Rule 61G4-17.002, Florida Administrative Code. They are as

5722follows:

5723(1) Monetary or other damage to the

5730licensee's customer, in any way associated

5736with the violation, which damage the licensee

5743has not relieved, as of the time the penalty

5752is to be assessed. (This provision shall not

5760be given effect to the extent it would

5768contravene federal bankruptcy law.)

5772(2) Actual job-site violations of building

5778codes, or conditions exhibiting gross

5783negligence, incompetence, or misconduct by

5788the licensee, which have not been corrected

5795as of the time the penalty is being assessed.

5804(3) The severity of the offense.

5810(4) The danger to the public.

5816(5) The number of repetitions of offenses.

5823(6) The number of complaints filed against

5830the licensee.

5832(7) The length of time the licensee has

5840practiced.

5841(8) The actual damage, physical or

5847otherwise, to the licensee's customer.

5852(9) The deterrent effect of the penalty

5859imposed.

5860(10) The effect of the penalty upon the

5868licensee's livelihood.

5870(11) Any efforts at rehabilitation.

5875(12) Any other mitigating or aggravating 8

5882circumstances.

588370. Having considered the facts of the instant case in

5893light of the provisions of Chapter 61G4-17, Florida

5901Administrative Code, it is the view of the undersigned that the

5912appropriate punitive action to take against Respondent in the

5921instant case is to require him to: (a) pay a fine in the amount

5935of $4,500.00; (b) submit proof of satisfaction of the Final

5946Judgment entered against him in Dade County Court Case No. 95-

59579669 CA 01; and (c) reimburse the Department for all reasonable

5968costs associated with the investigation that led to the filing of

5979the charges set forth in the Administrative Complaint 9 and for

5990all reasonable costs associated with its successful prosecution

5998of these charges. 10

6002RECOMMENDATION

6003Based on the foregoing Findings of Fact and Conclusions of

6013Law, it is

6016RECOMMENDED that the Department issue a final order

6024(1) finding Respondent guilty of the violations alleged in all

6034five counts of the Administrative Complaint, and (2) disciplining

6043Respondent for having committed these violations by requiring him

6052to: (a) pay a fine of $4,500.00; (b) submit proof of

6064satisfaction of the Final Default Judgment entered in Dade County

6074Court Case No. 95-9669 CA; and (c) reimburse the Department for

6085all reasonable costs associated with the Department's

6092investigation and prosecution of the charges set forth in the

6102Administrative Complaint.

6104DONE AND ENTERED this 24th day of November, 1997, in

6114Tallahassee, Leon County, Florida.

6118___________________________________

6119STUART M. LERNER

6122Administrative Law Judge

6125Division of Administrative Hearings

6129The DeSoto Building

61321230 Apalachee Parkway

6135Tallahassee, Florida 32399-3060

6138(904) 488-9675 SUNCOM 278-9675

6142Fax Filing (904) 921-6847

6146Filed with the Clerk of the

6152Division of Administrative Hearings

6156this 24th day of November, 1997.

6162ENDNOTES

61631 The hearing was originally scheduled to commence on July 23,

61741997, but was continued, at Respondent's request.

61812 This finding is based on Webbe's testimony concerning the

6191matter, which the undersigned finds more believable than

6199Respondent's testimony to the contrary.

62043 The complaint had erroneously alleged that the Contract price

6214was the full amount of the Settlement Check, rather than said

6225amount, less $5,000.00.

62294 Moreover, the repair work that ANAC has done has not been done

6242entirely to Webbe's satisfaction.

62465 Respondent testified that he returned $30,000.00 to Webbe

6256shortly after depositing the Settlement Check in ANAC's account.

6265This testimony, which is not supported by any documentary

6274evidence, has been rejected because it is less credible than

6284Webbe's testimony to the contrary.

62896 Because it merely clarified existing law (by defining the term

"6300reasonable time," as used in Section 489.129(1)(r), Florida

6308Statutes), Rule 61G4-17.001(23), Florida Administrative Code, may

6315be applied in cases where the alleged violation of Section

6325489.129(1)(r), Florida Statutes, occurred prior to its [Rule

633361G4-17.001(23)'s] effective date. Cf. Agency for Health Care

6341Administration v. Associated Industries of Florida, Inc. , 678 So.

63502d 1239, 1256 (Fla. 1996)("The law is clear in this state that

6363there can be no retroactive application of substantive law

6372without a clear directive from the legislature. However,

6380procedural provisions and modifications for the purposes of

6388clarity are not so restricted."); Nussbaum v. Mortgage Service

6398America Company , 913 F. Supp. 1548, 1557 (S.D. Fla. 1995)("A new

6410rule intended to clarify or apply the law to a new factual

6422setting does not constitute a substantive change in the law. A

6433rule meant to clarify an unsettled area of the law does not

6445change the law, but rather clarifies 'what the law according to

6456the agency is and has always been,' and 'is no more retroactive

6469in its operation than is a judicial determination construing and

6479applying a statute to a case in hand.'")

64887 There is no "rule that a single witness's testimony can never

6500provide clear and convincing evidence that a licensing or

6509practice act has been violated." Werner v. Department of

6518Insurance and Treasurer , 689 So. 2d 1211, 1213 (Fla. 1st DCA

65291997).

65308 A licensee's penalty may not be increased beyond the "normal

6541penalty ranges" based upon acts of misconduct that are not

6551alleged in the administrative complaint. See Klein v. Department

6560of Business and Processional Regulation , 625 So. 2d 1237, 1238-39

6570(Fla. 2d DCA 1993); Bernal v. Department of Professional

6579Regulation, Board of Medicine , 517 So. 2d 113, 114 (Fla. 3d DCA

65911987), approved , 531 So. 2d 967 (Fla. 1988).

65999 Pursuant to Rule 61G4-12.018, Florida Administrative Code, the

6608Department is required

6611to submit to the Board an itemized listing of

6620all costs related to investigation and

6626prosecution of an administrative complaint

6631when said complaint is brought before the

6638Board for final agency action.

6643Fundamental fairness requires that the Board provide a respondent

6652with an opportunity to dispute and challenge the accuracy and/or

6662reasonableness of the Department's itemization of investigative

6669and prosecutorial costs before determining the amount of costs a

6679respondent will be required to pay.

668510 The undersigned disagrees with the suggestion made by the

6695Department in its proposed recommended order that there is reason

6705to deviate from the "normal penalty ranges" in the instant case

6716and revoke Respondent's license. The Department has not shown

6725that the circumstances surrounding Respondent's violations are

6732significantly more "aggravating" than those which are typically

6740present when a contractor engages in the type of misconduct in

6751which it has been alleged and proven Respondent has engaged.

6761COPIES FURNISHED:

6763Theodore R. Gay, Senior Attorney

6768Seymour Stern, OPS Attorney

6772Department of Business

6775and Professional Regulation

6778401 Northwest Second Avenue, Suite N-607

6784Miami, Florida 33128

6787Earl G. Burks, pro se

679212350 Southwest 132nd Court, No. 205

6798Miami, Florida 33186

6801Rodney Hurst, Executive Director

6805Construction Industry Licensing Board

68097960 Arlington Expressway, Suite 300

6814Jacksonville, Florida 32211

6817Lynda L. Goodgame, General Counsel

6822Department of Business

6825and Professional Regulation

68281940 North Monroe Street

6832Tallahassee, Florida 32399-0792

6835NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6841All parties have the right to submit written exceptions within 15

6852days from the date of this recommended order. Any exceptions to

6863this recommended order should be filed with the agency that will

6874issue 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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