97-002139 Construction Industry Licensing Board vs. Raymond Guy Status: Closed Recommended Order on Thursday, September 25, 1997.

Summary: Roofing contractor is guilty of failing to satisfy, within a reasonable time, a civil judgment entered against him relating to his contracting activities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY LICENSING )

BOARD )

)

Petitioner , )

)

vs. ) Case No. 97-2139

)

RAYMOND GUY , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

this case on September 8, 1997, by video teleconference at sites

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

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Seymour Stern, OPS Attorney

Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N-607

Miami, Florida 33128

For Respondent: Harry G. Robbins, Esquire

Presidential Circle Building

4000 Hollywood Boulevard, Suite 630 North

Hollywood, Florida 33021

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violation alleged in

the Administrative Complaint?

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

Respondent?

PRELIMINARY STATEMENT

On February 21, 1997, the Department of Business and

Professional Regulation (Department) issued an Administrative

Complaint against Respondent. The Administrative Complaint read

as follows:

Petitioner, DEPARTMENT OF BUISNESS AND

PROFESSIONAL REGULATION, ("Petitioner"),

files this Administrative Complaint before

the Construction Industry Licensing Board,

against Raymond Guy, ("Respondent"), and

says:

1. Petitioner is the state agency charged

with regulating the practice of contracting

pursuant to Section 20.165, Florida Statutes,

and Chapters 455 and 489, Florida Statutes.

2. Respondent is, and has been at all times

material hereto, a Certified Roofing

Contractor, in the State of Florida, having

been issued license number CC C049569.

3. Respondent's last known address is 7130

Park Street, Hollywood, Florida 33024.

4. At all times material hereto, Respondent

was the license qualifying agent for Ray Guy

Roofing (hereinafter "Contractor") and was

therefore responsible for the acts,

omissions, and financial responsibility of

the business as it relates to contracting.

5. On or about September 1, 1992, the

Contractor contracted with Christopher Klein

hereinafter ("Customer") to reroof the

residence located at 7880 SW 132 Street,

Miami, Florida.

6. The contract price was Seven Thousand

Five Hundred dollars ($7,500.00).

7. Relating to the aforesaid construction

project, on or about June 30, 1995, the

Customer obtained a civil judgment against

the Contractor in the County Court, Eleventh

Judicial Circuit, Case No. 95-7415 CC 02.

8. The amount of the judgment was Five

Thousand Five Hundred dollars ($5,500.00)

plus costs in the sum of One Hundred and

Ninety-Eight dollars ($198.00), for a total

of Five Thousand Six Hundred and Ninety-Eight

dollars (5,698.00).

9. The Respondent failed to satisfy the

judgment within a reasonable time.

10. Based upon the foregoing, the Respondent

violated Section 489.129(1)(r), Florida

Statutes (1993), by failing to satisfy within

a reasonable time, the terms of a civil

judgment obtained against the licensee, or

the business organization qualified by the

licensee, relating to the practice of the

licensee's profession.

WHEREFORE, Petitioner respectfully requests

the Construction Industry Licensing Board

enter an Order imposing one or more of the

following penalties: place on probation,

reprimand the licensee, revoke, suspend, deny

the issuance or renewal of the certificate or

registration, require financial restitution

to a consumer, impose an administrative fine

not to exceed $5,000 per violation, require

continuing education, assess costs associated

with investigation and prosecution, impose

any or all penalties delineated within

Section 455.227(2), Florida Statutes, and/or

any other relief that the Board is authorized

to impose pursuant to Chapters 489, 455,

Florida Statutes, and/or the rules

promulgated thereunder.

Respondent subsequently requested a Section 120.57(1) hearing on

the allegations made in the Administrative Complaint. On May 8,

1997, the matter was referred to the Division of Administrative

Hearings for the assignment of an Administrative Law Judge to

conduct the Section 120.57(1) hearing Respondent had requested.

As noted above, the hearing was held on September 8, 1997.

A total of four witnesses testified at the hearing: Christopher

Klein, the homeowner referenced in the Administrative Complaint;

Respondent; John McConaghy, an employee of Ray Guy Roofing, Inc.;

and Patricia Diane Guy, Respondent's wife. In addition to the

testimony of these four witnesses, 17 exhibits (Petitioner's

Exhibits 1 through 17) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned, on the record, announced that proposed

recommended orders had to be filed no later than September 22,

1997. The Department filed its proposed recommended order on

September 22, 1997. The Department's proposed recommended

orders has been carefully considered by the undersigned. To

date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record

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

1. Respondent is a roofing contractor.

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

instant case, licensed to engage in the roofing contracting

business in the State of Florida.

3. He has held license number CC C049569 since 1989.

4. In the eight years that he has been licensed, he has

been disciplined once. On January 28, 1993, Respondent was

issued a Uniform Disciplinary Citation alleging that, "on the 8th

day of July, 1992, and the 19th day of August, 1992, [he] did

violate the following provisions of law: Section 489.129(1)(j),

Florida Statutes (1991), by violation of Section 489.119(5)(b),

Florida Statutes (1991), by committing the following act(s):

failing to include a license number on a contract and failing to

include a license number on an advertisement at: 771 S.W. 61st

Terrace, Hollywood, Florida 33023." Respondent did not contest

these allegations. Instead, he chose to pay a $200.00 fine for

having committed the violations alleged in the citation.

5. Respondent is now, and has been since February 21, 1990,

the primary qualifying agent for Ray Guy Roofing, Inc., a roofing

contracting business owned by Respondent and located in

Hollywood, Florida.

6. Respondent's brother, Rodney Guy (Rodney), is also in

the roofing business in the South Florida area. At all times

material to the instant case, Rodney engaged in such business

under the name "Hot Rods Roofing." In addition to having his own

business, Rodney also, on occasion, worked for Respondent.

7. In August of 1992, Rodney entered into a written

agreement (Contract) with Christopher Klein in which Rodney

agreed, for $7,000.00, to replace the damaged roof on Klein's

residence in Dade County 1 with a new roof with a seven-year

warranty (Project).

8. Subsequently, the Contract price was increased $500.00

to $7,500.00 by mutual agreement.

9. Prior to the commencement of work on the Project,

Respondent verbally agreed to assume Rodney's obligations under

the Contract.

10. Klein paid the Contract price in full, by check, in two

installments. Both checks were made out to Hot Rods Roofing (in

accordance with the instructions Klein was given) and cashed by

Rodney. The second check contained the following handwritten

notation made by Klein: "payment in full - roof - includes Ray

Guy Roofing, Inc."

11. The Project was completed on or before September 18,

1992. The work was done by Respondent and the employees of

Respondent's roofing business, including Rodney.

12. Following the completion of the Project, the roof

started to leak.

13. Klein thereafter unsuccessfully attempted to contact

Respondent and Rodney by telephone to apprise them of the

situation.

14. On or about August 1, 1993, Klein sent a letter to

Respondent and Rodney advising them of the leaks in the roof and

requesting that they "send someone to fix them."

15. Neither Respondent nor Rodney responded to Klein's

letter.

16. Klein therefore hired someone else to fix the leaks.

17. Leaks subsequently redeveloped in the roof.

18. Klein again unsuccessfully attempted to contact

Respondent and Rodney by telephone to bring the matter to their

attention.

19. On or about March 22, 1994, Klein sent Respondent and

Rodney a letter, which read as follows:

As you will recall, you acted as partners in

the installation of a new roof at my house

after Hurricane Andrew.

I have developed a leak and I have been

attempting to contact both of you for over a

month in connection with warranty work

related thereto. I am surprised that you

have ignored me because, as you will recall,

my hiring you resulted in your obtaining at

least 3 other jobs on my street.

Please contact me within one week to schedule

the repair. If I do not receive word from

you, I will be forced to hire another roofing

company and I will thereafter send you the

bill. The bill will be for the roof repairs

and to repair interior damage.

20. Neither Respondent nor Rodney responded to Klein's

request.

21. Klein made temporary repairs to the roof at his own

expense.

22. Klein, who is a member of The Florida Bar, subsequently

filed a complaint in Dade County Court (in Dade County Court Case

No. 95-7415 CC 02) seeking a judgment for damages, plus interest

and costs, against Ray Guy Roofing, Inc., Respondent, and Rodney

for breach of contract (Count I), negligence (Count II), and

breach of warranty (Count III).

23. Respondent was served with a copy of the complaint on

or about May 12, 1995.

24. Shortly thereafter Klein received a telephone call from

Respondent, who wanted to speak to Klein about the lawsuit.

During their telephone conversation, they agreed to meet at 5:30

p.m. on May 17, 1995, at Klein's residence to discuss the

possibility of settling the lawsuit.

25. Respondent did not show up for the meeting, nor did he

telephone or otherwise communicate with Klein to explain his

absence.

26. Respondent also failed to respond to Klein's

complaint. 2

27. On June 30, 1995, pursuant to Klein's written request,

a Final Default Judgment was entered against Respondent and Ray

Guy Roofing, Inc., 3 in Dade County Court Case No. 95-7415 CC 02.

The Final Default Judgment provided as follows:

THIS CAUSE came before the Court this date on

Plaintiff's Motion for Final Default Judgment

against Defendants Raymond Guy, Individually

and Ray Guy Roofing, Inc., and the Court

having noted that said Defendants were duly

served and defaulted herein, and the court

being otherwise duly advised in the premises,

it is thereupon

ORDERED that Plaintiff's Motion is granted

and that

Plaintiff, Christopher J. Klein, hereby

recovers from Defendants, Ray Guy Roofing,

Inc., and Raymond Guy, Individually, the

principal sum of $5,500.00 plus costs in the

sum of $198.00, making a total sum due of

$5,698.00, for which sum let execution issue.

Klein sent a copy of the Final Default Judgment to Respondent by

United States Mail on or about July 21, 1995.

28. The Final Default Judgment was not appealed, and it has

not been vacated, set aside, discharged, or satisfied, in whole

or in part.

CONCLUSIONS OF LAW

29. The Department has been vested with the statutory

authority to issue licenses to those qualified applicants seeking

to engage in the roofing contracting business in the State of

Florida. Section 489.115, Florida Statutes.

30. A business entity, like Ray Guy Roofing, Inc., may

obtain such a license, but only through a licensed "qualifying

agent." Section 489.119, Florida Statutes.

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

qualifying agents," and "secondary qualifying agents."

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

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

"Primary qualifying agent" means a person who

possesses the requisite skill, knowledge, and

experience, and has the responsibility to

supervise, direct, manage and control the

contracting activities of the business

organization with which he is connected; who

has the responsibility to supervise, direct,

manage, and control construction activities

on a job for which he has obtained the

building permit; and whose technical and

personal qualifications have been determined

by investigation and examination as provided

in this part, as attested by the

[D]epartment.

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

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

"Secondary qualifying agent" means a person

who possesses the requisite skill, knowledge,

and experience, and has the responsibility to

supervise, direct, manage, and control

construction activities on a job for which he

has obtained a permit, and whose technical

and personal qualifications have been

determined by investigation and examination

as provided in this part, as attested by the

[D]epartment.

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

further described in Section 489.1195, Florida Statutes, which

provides, in pertinent part, as follows:

(1) A qualifying agent is a primary

qualifying agent unless he is a secondary

qualifying agent under this section.

(a) All primary qualifying agents for a

business organization are jointly and equally

responsible for supervision of all operations

of the business organization; for all field

work at all sites; and for financial matters,

both for the organization in general and for

each specific job. . . .

35. The Construction Industry Licensing Board (Board) may

take any of the following punitive actions against a contractor

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

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

contractor or the business entity committed any of the acts

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

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

suspend the contractor's license; place the contractor on

probation; reprimand the contractor; deny the renewal of the

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

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

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

education courses; or assess costs associated with the

Department's investigation and prosecution. Proof greater than a

mere preponderance of the evidence must be submitted. Clear and

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

Department of Banking and Finance, Division of Securities and

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

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

1987); McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA

1995); Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fla. 1st DCA

1994); Nair v. Department of Business and Professional

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

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

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

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

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

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

Section 120.57(1)(h), Florida Statutes ("[f]indings of fact shall

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

licensure disciplinary proceedings or except as otherwise

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

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

facts to which the witnesses testify must be distinctly

remembered; the testimony must be precise and explicit and the

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

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

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

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

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

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

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

against the contractor may be based only upon those offenses

specifically alleged in the administrative complaint. See

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

1st DCA 1996); Kinney v. Department of State , 501 So. 2d 129, 133

(Fla. 5th DCA 1987); Hunter v. Department of Professional

Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

36. The Administrative Complaint issued in the instant case

alleges that punitive action should be taken against Respondent

because he violated Section 489.129(1)(r), Florida Statutes, by

failing to timely satisfy the Final Default Judgment entered in

Dade County Court Case No. 95-7415 CC 02 against him and Ray Guy

Roofing, Inc., the business entity for which he was (and still

is) the primary qualifying agent.

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

489.129(1)(r), Florida Statutes, has authorized the Board to take

punitive action against a contractor if the contractor or the

business entity for which the contractor is a primary qualifying

agent:

Fail[s] to satisfy within a reasonable time,

the terms of a civil judgment obtained

against the licensee, or the business

organization qualified by the licensee,

relating to the practice of the licensee's

profession.

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

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

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

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

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

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

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

entry of a civil judgment that is not appealed." 4

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

to satisfy an unappealed civil judgment (in violation of Section

489.129(1)(r), Florida Statutes) by challenging the correctness

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

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

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

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

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

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

41. An examination of the evidentiary record in the instant

case reveals that the Department has clearly and convincingly

established that, as alleged in the Administrative Complaint, in

violation of Section 489.129(1)(r), Florida Statutes, Respondent

failed to satisfy within a reasonable time the Final Default

Judgment entered against him and Ray Guy Roofing, Inc., in Dade

County Court Case No. 95-7415 CC 02, a civil judgment "relating

to the practice of [his] profession." 5 Punitive action against

Respondent is therefore warranted.

42. In determining the particular punitive action the Board

should take against Respondent for having committed this

violation of Section 489.129(1)(r), Florida Statutes, it is

necessary to consult Chapter 61G4-17, Florida Administrative

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

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

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

disciplinary guidelines when taking disciplinary action against

its employees).

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

provides, in pertinent part, as follows:

Normal Penalty Ranges. The following

guidelines shall be used in disciplinary

cases, absent aggravating or mitigating

circumstances and subject to the other

provisions of this Chapter. . . .

(18) Failure to satisfy a civil judgment

obtained against the licensee or the business

organization qualified by the licensee within

a reasonable time. First violation, $500 to

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

civil judgment; repeat violation, $1,000 to

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

civil judgment, probation, suspension or

revocation.

(19) For purposes of these guidelines,

violations for which the Respondent has

previously been issued a citation pursuant to

Section 455.224, F.S., and rule 61G4-19.001,

shall be considered repeat violations.

(20) For any violation occurring after

October 1, 1989, the board may assess the

costs of investigation and prosecution. The

assessment of such costs may be made in

addition to the penalties provided by these

guidelines without demonstration of

aggravating factors set forth in rule 61G4-

17.002.

(21) For any violation occurring after

October 1, 1988, the board may order the

contractor to make restitution in the amount

of financial loss suffered by the consumer.

Such restitution may be ordered in addition

to the penalties provided by these guidelines

without demonstration of aggravating factors

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

extent that such order does not contravene

federal bankruptcy law. . . .

(23) . . . The Board will consider a

mutually agreed upon payment plan as

satisfaction of such a judgment so long as

the payments are current.

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

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

Administrative Code, as follows:

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

is any violation on which disciplinary action

is being taken where the same licensee had

previously had disciplinary action taken

against him or received a letter of guidance

in a prior case; and said definition is to

apply (i) regardless of the chronological

relationship of the acts underlying the

various disciplinary actions, and

(ii) regardless of whether the violations in

the present or prior disciplinary actions are

of the same or different subsections of the

disciplinary statutes.

(2) The penalty given in the above list for

repeat violations is intended to apply only

to situations where the repeat violation is

of a different subsection of Chapter 489 than

the first violation. Where, on the other

hand, the repeat violation is the very same

type of violation as the first violation, the

penalty set out above will generally be

increased over what is otherwise shown for

repeat violations on the above list.

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

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

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

or several cases being considered together, the penalties shall

normally be cumulative and consecutive."

46. The aggravating and mitigating circumstances which are

to be considered before a particular penalty is chosen are listed

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

follows:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the licensee

has not relieved, as of the time the penalty

is to be assessed. (This provision shall not

be given effect to the extent it would

contravene federal bankruptcy law.)

(2) Actual job-site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being assessed.

(3) The severity of the offense.

(4) The danger to the public.

(5) The number of repetitions of offenses.

(6) The number of complaints filed against

the licensee.

(7) The length of time the licensee has

practiced.

(8) The actual damage, physical or

otherwise, to the licensee's customer.

(9) The deterrent effect of the penalty

imposed.

(10) The effect of the penalty upon the

licensee's livelihood.

(11) Any efforts at rehabilitation.

(12) Any other mitigating or aggravating

circumstances.

47. Having considered the facts of the instant case in

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

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

appropriate punitive action to take against Respondent in the

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

of $1,000.00; (b) submit proof of satisfaction of the Final

Default Judgment entered against him and Ray Guy Roofing, Inc.,

in Dade County Court Case No. 95-7415 CC 02; and (c) reimburse

the Department for all reasonable costs associated with the

investigation that led to the filing of the charges set forth in

the Administrative Complaint 6 and for all reasonable costs

associated with its successful prosecution of these charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order

(1) finding Respondent guilty of the violation of Section

489.129(1)(r), Florida Statutes, alleged in the Administrative

Complaint, and (2) disciplining Respondent for having committed

this violation by requiring him to: (a) pay a fine of $1,000.00;

(b) submit proof of satisfaction of the Final Default Judgment

entered in Dade County Court Case No. 95-7415 CC 02; and

(c) reimburse the Department for all reasonable costs associated

with the Department's investigation and prosecution of the

charges set forth in the Administrative Complaint.

DONE AND ENTERED this 25th day of September, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of September, 1997.

ENDNOTES

1 The roof had been damaged by Hurricane Andrew.

2 At no time had Klein advised Respondent that it was unnecessary

for Respondent to answer the complaint.

3 Klein had been unable to locate Rodney and to have process

served on him.

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

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

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

be applied in cases where the alleged violation of Section

489.129(1)(r), Florida Statutes, occurred prior to its [Rule

61G4-17.001(23)'s] effective date. Cf. Agency for Health Care

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

2d 1239, 1256 (Fla. 1996)("The law is clear in this state that

there can be no retroactive application of substantive law

without a clear directive from the legislature. However,

procedural provisions and modifications for the purposes of

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

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

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

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

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

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

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

in its operation than is a judicial determination construing and

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

5 The evidence submitted by Respondent is insufficient to support

a finding of his or his business' inability to pay the judgment

due to indigence or insolvency. See Eberhardt v. Eberhardt , 590

So. 2d 1134. 1135 (Fla. 4th DCA 1992)("A party is not an indigent

simply by declaring himself indigent."). Although Respondent's

wife testified that Respondent did not have the funds to pay

Klein, there were no details presented concerning Respondent's or

his business' current or past assets, liabilities, net worth, or

income. Without such information, the undersigned is unwilling

to find that Respondent has failed to satisfy the judgment due to

lack of funds, particularly in light of the evidence suggesting

that, since the entry of the judgment, Respondent has remained in

business and that he has had the money to retain and pay counsel

to represent him in this matter. Cf . Bain v. State , 642 So. 2d

578 (Fla. 5th DCA 1994)("The only evidence offered the trial

court about future inability to pay the amount of the losses

suffered by the victim came from Bain herself, which the court

was entitled to accept or reject based on credibility."). In any

event, a licensed contractor who "[f ]ail[s] to satisfy within a

reasonable time, the terms of a civil judgment obtained against

the licensee, or the business organization qualified by the

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

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

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

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

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

to protect the public against contractors who fail to meet their

legal obligations, whether they have the financial ability to do

so or not.

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

Department is required

to submit to the Board an itemized listing of

all costs related to investigation and

prosecution of an administrative complaint

when said complaint is brought before the

Board for final agency action.

Fundamental fairness requires that the Board provide a respondent

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

reasonableness of the Department's itemization of investigative

and prosecutorial costs before determining the amount of costs a

respondent will be required to pay.

COPIES FURNISHED:

Seymour Stern, OPS Attorney

Department of Business and Professional Regulation

401 Northwest Second Avenue, Suite N-607

Miami, Florida 33128

Harry G. Robbins, Esquire

Presidential Circle Building

4000 Hollywood Boulevard, Suite 630 North

Hollywood, Florida 33021

Rodney Hurst, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211

Lynda L. Goodgame, General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this recommended order should be filed with the agency that will

issue the final order in this case.