97-002141 Construction Industry Licensing Board vs. Robert Loeffler
 Status: Closed
Recommended Order on Monday, November 10, 1997.


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Summary: Licensee disciplined for not registering corporation through which he did business.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION , )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD , )

22)

23Petitioner , )

25)

26vs. ) Case No. 97-2141

31)

32ROBERT LOEFFLER , )

35)

36Respondent. )

38__________________________________)

39RECOMMENDED ORDER

41Pursuant to notice, the Division of Administrative Hearings,

49by its duly designated Administrative Law Judge, William J.

58Kendrick, held a formal hearing in the above-styled case on

68October 23, 1997, in Miami, Florida.

74APPEARANCES

75For Petitioner : Theodore R. Gay, Esquire

82Department of Business and

86Professional Regulation

88401 Northwest Second Avenue, Suite N-607

94Miami, Florida 33128

97For Respondent : No appearance at hearing.

104STATEMENT OF THE ISSUES

108At issue in this proceeding is whether Respondent committed

117the offenses set forth in the Administrative Complaint and, if

127so, what penalty should be imposed.

133PRELIMINARY STATEMENT

135By a three-count Administrative Complaint dated February 21,

1431997, Petitioner alleged that Respondent was guilty of (a) acting

153in the capacity of a contractor in a name other than the name on

167Respondent's license in violation of Section 489.129(1)(g),

174Florida Statutes; (b) violating a provision of Part I, Chapter

184489, Florida Statutes (Sections 489.199(2) and 489.127(1)(f),

191Florida Statutes), by engaging in contracting as a business

200organization without applying for certification in violation of

208Section 489.129(1)(j), Florida Statutes; and (c) failing to

216satisfy within a reasonable time, the terms of a civil judgment

227obtained against the license, or the business organization

235qualified by the license, relating to the practice of the

245licensee's profession, in violation of Section 489.129(1)(r),

252Florida Statutes.

254Respondent filed an election of rights whereby he contested

263the material facts alleged in the administrative complaint, and

272requested a formal hearing. Consequently, in May 1997 the matter

282was referred to the Division of Administrative Hearings for the

292assignment of an administrative law judge to conduct a formal

302hearing pursuant to Sections 120.569 and 120.57(1), Florida

310Statutes.

311At hearing, Petitioner called Anthony Pirrone and Gary Stein

320as witnesses, and its Exhibits 1-17 were received into evidence.

330Neither Respondent nor anyone on his behalf appeared at hearing;

340however, a "Legal Memorandum for Consideration in Connection with

349Formal Hearing" was filed on his behalf on October 9, 1997. That

361memorandum requested that official notice be taken of Exhibits A,

371B, and C to the memorandum and, without objection, Respondent's

381request was granted at hearing. Moreover, without objection,

389recognition was accorded Respondent's first request for

396admissions to Petitioner, and Petitioner's response thereto.

403The transcript of hearing was not ordered. Therefore, it

412was announced on the record that the parties were accorded ten

423days from the date of hearing to file proposed recommended

433orders. Petitioner elected to file such a proposal, and it has

444been duly considered in the preparation of this order.

453Respondent did not elect to file such a proposal, but the "Legal

465Memorandum for Consideration in Connection with Formal Hearing"

473filed on his behalf on October 9, 1997, has been duly considered.

485FINDINGS OF FACT

4881. Petitioner, Department of Business and Professional

495Regulation, Construction Industry Licensing Board (Department),

501is a state government licensing and regulatory agency charged

510with the duty and responsibility to prosecute administrative

518complaints pursuant to the laws of the State of Florida, in

529particular Section 20.165, Florida Statutes, and Chapters 120,

537455, and 489, Florida Statutes, and the rules promulgated

546pursuant thereto.

5482. At all times material hereto, Respondent, Robert

556Loeffler, was licensed by Petitioner as a certified general

565contractor, having been issued license number CG C040314. 1 At

575all times material, Respondent's certified general contractor's

582license authorized him to engage in the practice of contracting

592in his individual capacity only, and not as the qualifying agent

603of any business entity.

6073. At all times material, Respondent was the owner, sole

617director and sole officer of Loeffler Building and Design, Inc.

627("LBD"), a Florida corporation. At no time was LBD registered or

640certified to practice contracting in the State of Florida.

6494. In April 1993, Anthony Pirrone and his wife Sheila

659Pirrone purchased a home at 680 North Island Drive, Golden Beach,

670Florida. Before moving in, the Pirrones wanted the house

679renovated, and they negotiated with Respondent and arrived at an

689agreement whereby LBD, as contractor, would do the work.

6985. In February 1994, the Pirrones and Respondent, as

707president of LBD executed a written contract, dated August 16,

7171993, for the improvements. By that time, LBD had already done

728some work, and the Pirrones had already made some payments to

739LBD.

7406. Indeed, in or about July 1993, Respondent, on behalf of

751LBD, submitted an application for a demolition permit to the Town

762of Golden Beach. The application listed "Loeffler Building and

771Design" as the contractor, and named Respondent, with his license

781number, as the corporation's qualifier. The permit was issued

790August 9, 1993.

7937. On or about November 3, 1993, Respondent, on behalf of

804LBD, submitted an application for a permit to commence the

814renovations and improvements contemplated by the agreement with

822the Pirrones. The application listed "Loeffler Building," which

830is understood to mean Loeffler Building and Design, Inc., as the

841contractor, and again named Respondent, with his license number,

850as the corporation's qualifier. The permit was issued November

8595, 1993.

8618. LBD continued work on the Pirrone home until August

8711994, when all work ceased. On December 5, 1994, incident to the

883pending dispute between the parties, the Pirrones terminated

891their agreement with LBD.

8959. The Pirrones and LBD asserted claims against each other,

905and the claims became the subject of litigation between them.

915The claims were arbitrated, and on July 24, 1995, the arbitrator

926issued an award denying LBD's claim against the Pirrones,

935andgranting the Pirrones' claim against LBD in the amount of

945$62,315.81, together with interest and administrative fees, for a

955total award of $65,512.13. On October 26, 1995, a final judgment

967confirming the arbitrator's award was entered in the Circuit

976Court, Dade County, Florida, Case No. 95-01131.

98310. At the time of hearing, neither Respondent nor LBD had

994made any payment on the judgment, nor had they entered into an

1006agreement with the Pirrones to satisfy the judgment by making

1016periodic payments. 2

101911. Respondent has had no prior complaints filed against

1028him with the Department.

1032CONCLUSIONS OF LAW

103512. The Division of Administrative Hearings has

1042jurisdiction over the parties to, and the subject matter of,

1052these proceedings. Sections 120.569, 120.57(1), and 120.60(5),

1059Florida Statutes (Supp. 1996).

106313. Where, as here, the Department proposes to take

1072punitive action against a licensee, it must establish the grounds

1082for disciplinary action by clear and convincing evidence .

1091Section 120.57(1)(h), Florida Statutes (Supp. 1996), and

1098Department of Banking and Finance v. Osborne Stern and Co. ,

1108670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight

1121that it produces in the mind of the trier of fact a firm belief

1135or conviction, without hesitancy, as to the truth of the

1145allegations sought to be established." Slomowitz v. Walker ,

1153429 So. 2d 797, 800 (Fla. 4th DCA 1983). Moreover, the

1164disciplinary action taken may be based only upon the offenses

1174specifically alleged in the administrative complaint. See Kinney

1182v. Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987) ;

1194Sternberg v. Department of Professional Regulation, Board of

1202Medical Examiners , 465 So. 2d 1324 (Fla. 1st DCA 1985); and

1213Hunter v. Department of Professional Regulation , 458 So. 2d 844

1223(Fla. 2d DCA 1984). Finally, in determining whether Respondent

1232violated the provisions of Section 489.129(1) as alleged in the

1242administrative complaint, one "must bear mind that it is, in

1252effect, a penal statute. . . . This being true, the statute must

1265be strictly construed and no conduct is to be regarded as

1276included within it that is not reasonably proscribed by it."

1286Lester v. Department of Professional and Occupational Regulation ,

1294348 So. 2d 923, 925 (Fla. 1st DCA 1977).

130314. Pertinent to this case, Section 489.129, Florida

1311Statutes (Supp. 1996) , 3 provides:

1316(1 ) The board may take any of the

1325following actions against any

1329certificateholder or registrant: place on

1334probation or reprimand the licensee, revoke,

1340suspend . . . require financial restitution

1347to a consumer for financial harm directly

1354related to a violation of a provision of this

1363part , impose an administrative fine not to

1370exceed $5,000 per violation, require

1376continuing education, or assess costs

1381associated with investigation and

1385prosecution, if the contractor, financially

1390responsible officer, or business organization

1395for which the contractor is a primary

1402qualifying agent, a financially responsible

1407officer, or a secondary qualifying agent

1413responsible under s. 489.1195 is found guilty

1420of any of the following acts:

1426* * *

1429(g ) Acting in the capacity of a contractor

1438under any certificate or registration issued

1444hereunder except in the name of the

1451certificateholder or registrant as set forth

1457on the issued certificate or registration, or

1464in accordance with the personnel of the

1471certificateholder or registrant as set forth

1477in the application for the certificate or

1484registration, or as later changed as provided

1491in this part.

1494* * *

1497(j ) Failing in any material respect to

1505comply with the provisions of this part or

1513violating a rule or lawful order of the

1521board.

1522* * *

1525(r ) Failing to satisfy within a reasonable

1533time, the terms of a civil judgment obtained

1541against the licensee, or the business

1547organization qualified by the licensee,

1552relating to the practice of the licensee's

1559profession. (Emphasis added.)

1562And, pertinent to the violation of Subsection 489.129(1)(j)

1570charged in this case, Section 489.119(2), Florida Statutes,

1578provides that if an individual "proposes to engage in contracting

1588as a business organization . . . the business organization must

1599apply for certification or registration through a qualifying

1607agent, or the individual applicant must apply for certification

1616or registration under the fictitious name," and Section

1624489.127(1), Florida Statutes, provides that "No person shall:

1632. . . (f) Engage in the business or act in the capacity of a

1647contractor or advertise himself or a business organization as

1656available to engage in the business or act in the capacity of a

1669contractor without being duly registered or certified. . . ."

167915. Here, the proof demonstrates with the requisite degree

1688of certainty that Respondent engaged in the business of

1697contracting through Loeffler Building and Design, Inc., without

1705first obtaining certification of the business organization, as

1713required by law. Sections 489.119(2) and 489.127(1)(f), Florida

1721Statutes. Consequently, Respondent violated the provisions of

1728Subsection 489.129(1)(j), Florida Statutes, as alleged in

1735Count II of the Administrative Complaint. Such conduct also

1744constitutes a violation of Subsection 489.129(1)(g), Florida

1751Statutes, as alleged in Count I of the Administrative Complaint,

1761since Respondent, while licensed as an individual, did business

1770through Loeffler Building and Design, Inc., a name different from

1780that set forth on his certification.

178616. While Petitioner has sustained the charges encompassed

1794by Counts I and II of the Administrative Complaint, it has failed

1806with regard to Count III. Section 489.129(1), Florida Statutes,

1815only authorizes the Construction Industry Licensing Board (Board)

1823to take disciplinary action under the following circumstances:

1831(1 ) The board may take . . . action[ ]

1842against any certificateholder . . . if the

1850contractor, financially responsible officer,

1854or business organization for which the

1860contractor is a primary qualifying agent, a

1867financially responsible officer, or a

1872secondary qualifying agent responsible under

1877s. 489.1195 is found guilty of any of the

1886following acts:

1888* * *

1891(r ) Failing to satisfy within a reasonable

1899time, the terms of a civil judgment obtained

1907against the licensee, or the business

1913organization qualified by the licensee,

1918relating to the practice of the licensee's

1925profession.

192617. Notably, the civil judgment was not obtained against

1935the licensee and the business organization against which the

1944judgment was obtained, Loeffler Building and Design, Inc., was

1953not "qualified" by the licensee as that term is used in Sections

1965489.119 and 489.1195, Florida Statutes. Given that the subject

1974statute is a penal statute, it must, as heretofore noted, "be

1985strictly construed and no conduct is to be regarded as included

1996within it that is not reasonably proscribed by it." Lester v.

2007Department of Professional and Occupational Regulation , supra .

2015Indeed, it would be rather incongruous to conclude otherwise,

2024when Petitioner has pled and demonstrated that Respondent

2032violated the provisions of Section 489.129(l)(j), Florida

2039Statutes, by contracting under the name of Loeffler Building and

2049Design, Inc., without having applied to the Board for

2058certification or registration as its licensed qualifier.

2065Accordingly, Petitioner has failed to demonstrate that Respondent

2073violated the provisions of Section 489.129(l)(r), Florida

2080Statutes, as alleged in Count III of the Administrative

2089Complaint.

209018. Having reached the foregoing conclusions, it remains to

2099resolve the appropriate penalty that should be imposed.

2107Pertinent to this issue, Rule 61G4-17.001, Florida Administrative

2115Code, provides the following guidelines to be used in

2124disciplinary cases under Chapter 489, absent aggravating or

2132mitigating circumstances:

2134(7 ) 489.129(1)(g), 489.119: Failure to

2140qualify a firm, and/or acting under a name

2148not on license. First violation, $100 fine;

2155repeat violation $750 to $1,500 fine.

2162* * *

2165(10 ) 489.129(1)(j): Failing in any

2171material respect to comply with the

2177provisions of Part I of Chapter 489.

2184* * *

2187(i ) 489.119: Failure to register qualified

2194business organization. First violation, $250

2199to $500 fine; repeat violation, $500 to

2206$1,000 fine and/or probation, suspension or

2213revocation.

2214* * *

2217(20 ) For any violation occurring after

2224October 1, 1989, the board may assess the

2232costs of investigation and prosecution. The

2238assessment of such costs may be made in

2246addition to the penalties provided by these

2253guidelines without demonstration of

2257aggravating factors set forth in rule

226361G4-17.002.

2264(21 ) For any violation occurring after

2271October 1, 1988, the board may order the

2279contractor to make restitution in the amount

2286of financial loss suffered by the consumer.

2293Such restitution may be ordered in addition

2300to the penalties provided by these guidelines

2307without demonstration of aggravating factors

2312set forth in rule 61G4-17.002, and to the

2320extent that such order does not contravene

2327federal bankruptcy law.

233019. According to Rule 61G4-17.002, Florida Administrative

2337Code, the circumstances which may be considered in mitigation or

2347aggravation of the penalty include, but are not limited to, the

2358following:

2359(1 ) Monetary or other damage to the

2367licensee's customer, in any way associated

2373with the violation , which damage licensee has

2380not relieved, as of the time the penalty is

2389to be assessed. (This provision shall not be

2397given effect to the extent it would

2404contravene federal bankruptcy law.)

2408(2 ) Actual job-site violations of building

2415codes, or conditions exhibiting gross

2420negligence, incompetence, or misconduct by

2425the licensee, which have not been corrected

2432as of the time the penalty is being assessed.

2441(3 ) The severity of the offense.

2448(4 ) The danger to the public.

2455(5 ) The number of repetitions of offenses.

2463(6 ) The number of complaints filed against

2471the licensee.

2473(7 ) The length of time the licensee has

2482practiced.

2483(8 ) The actual damage, physical or

2490otherwise, to the licensee's customer.

2495(9 ) The deterrent effect of the penalty

2503imposed.

2504(10 ) The effect of the penalty upon the

2513licensee's livelihood.

2515(11 ) Any efforts at rehabilitation.

2521(12 ) Any other mitigating or aggravating

2528circumstances. (Emphasis added.)

253120. Having considered the circumstances of the instant

2539case, with due regard for the guidelines for disciplinary action,

2549and considering that there is no nexus between the violations

2559found and any financial harm to the customer, it would be

2570inappropriate to order restitution and the appropriate penalty

2578for the violations found would be an administrative fine in the

2589sum of $250.00.

2592RECOMMENDATION

2593Based on the foregoing Findings of Fact and Conclusions of

2603Law, it is

2606RECOMMENDED that a final order be entered dismissing

2614Count III of the Administrative Complaint, finding Respondent

2622guilty of Counts I and II of the Administrative Complaint, and

2633imposing an administrative fine of $250.00 against Respondent.

2641It is further RECOMMENDED that the final order assess the

2651reasonable costs of investigation and prosecution against

2658Respondent. 4

2660DONE AND ENTERED this 10th day of November, 1997, in

2670Tallahassee, Leon County, Florida.

2674___________________________________

2675WILLIAM J. KENDRICK

2678Administrative Law Judge

2681Division of Administrative Hearings

2685The DeSoto Building

26881230 Apalachee Parkway

2691Tallahassee, Florida 32399-3060

2694(904) 488- 9675 SUNCOM 278-9675

2699Fax Filing (904) 921-6847

2703Filed with the Clerk of the

2709Division of Administrative Hearings

2713this 10th day of November, 1997.

2719ENDNOTES

27201/ Respondent's license expired for lack of renewal on August

273031, 1996. However, the status or change in status of a

2741certificate holder or registrant does not alter the Board's right

2751to take disciplinary action for acts or omissions committed while

2761holding a certificate registration. Section 489.116(7), Florida

2768Statutes.

27692/ Pursuant to a final order of the Construction Industry

2779Licensing Board (CILB) filed January 27, 1997, the Pirrones

2788received $25,000 from the Construction Industries Recovery Fund.

2797In exchange, the Pirrones executed a partial assignment of their

2807judgment to the CILB. As a result of that payment, and pursuant

2819to the final order, Respondent's license was suspended until

2828repayment of the monies paid by the fund.

28363/ Subsection 489.129(1) was amended by Chapter 96-298,

2844Section 8, Laws of Flor ida, to include the language that has been

2857emphasized in the text.

28614/ Rule 61G4-12.018, Florida Administrative Code, requires the

2869Department of Business and Professional Regulation to "submit to

2878the Board an itemized listing of all costs related to

2888investigation and prosecution of an administrative complaint when

2896said complaint is brought before the Board for final agency

2906action." Fundamental fairness requires that the Board provide

2914Respondent an opportunity to dispute and challenge the accuracy

2923and/or reasonableness of the itemization of investigative and

2931prosecutorial costs before the Board determines the amount of

2940costs Respondent will be required to pay.

2947COPIES FURNISHED:

2949Theodore R. Gay, Esquire

2953Department of Business and

2957Professional Regulation

2959401 NW 2nd Avenue, Suite N-607

2965Miami, Florida 33128

2968Mr. Robert Loeffler

2971Post Office Box 641

2975Denver, North Carolina 28037

2979Rodney Hurst, Executive Director

2983Construction Industry Licensing Board

29877960 Arlington Expressway, Suite 300

2992Jacksonville, Florida 32211-7467

2995Lynda L. Goodgame, General Counsel

3000Department of Business and

3004Professional Regulation

30061940 North Monroe Street

3010Tallahassee, Florida 32399-0792

3013NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3019All parties have the right to submit written exceptions within 15

3030days from the date of this Recommended Order. Any exceptions to

3041this Recommended Order should be filed with the agency that will

3052issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 05/17/2000
Proceedings: Final Order (after District Court Opinion) filed.
PDF:
Date: 05/05/2000
Proceedings: Agency Final Order
PDF:
Date: 08/04/1999
Proceedings: Opinion filed.
Date: 08/04/1999
Proceedings: (Notice of Agency Appeal, 1-DCA Case No. 98-1492,) when Opinion filed, Reversed and Remanded to the agency filed.
PDF:
Date: 08/03/1999
Proceedings: Opinion
PDF:
Date: 03/20/1998
Proceedings: Final Order filed.
PDF:
Date: 03/19/1998
Proceedings: Agency Final Order
PDF:
Date: 11/10/1997
Proceedings: Recommended Order
PDF:
Date: 11/10/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 10/23/97.
Date: 11/03/1997
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 10/23/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 10/17/1997
Proceedings: Order sent out. (J. Dean Motion to Withdraw as Counsel is Granted; Hearing to Begin as Planned on 10/23/97)
Date: 10/16/1997
Proceedings: Petitioner`s Response to Respondent Robert Loeffler`s First Request for Admissions (filed via facsimile).
Date: 10/10/1997
Proceedings: Petitioner`s Response to Respondent`s Consented Motion to Withdraw as Counsel for Respondent (filed via facsimile).
Date: 10/09/1997
Proceedings: Respondent`s Legal Memorandum for Consideration in Connection With Formal Hearing; Consented Motion to Withdraw as Counsel for Respondent; (Proposed) Order filed.
Date: 09/25/1997
Proceedings: Order sent out. (Respondent`s motion for continuance is denied)
Date: 09/25/1997
Proceedings: Petitioner`s Response to Respondent`s Consented Motion for Continuance of Hearing (filed via facsimile).
Date: 09/24/1997
Proceedings: (Respondent) Consented Motion for Continuance of Hearing filed.
Date: 09/17/1997
Proceedings: Respondent Robert Loefler`s First Request for Admissions filed.
Date: 06/13/1997
Proceedings: Notice of Hearing sent out. (hearing set for 10/23/97; 8:30am; Miami)
Date: 05/27/1997
Proceedings: (Petitioner) Response to Initial Order filed.
Date: 05/23/1997
Proceedings: (From J. Dean) Notice of Appearance for Respondent filed.
Date: 05/12/1997
Proceedings: Initial Order issued.
Date: 05/08/1997
Proceedings: Agency Referral letter; Administrative Complaint; Election of Rights filed.

Case Information

Judge:
WILLIAM J. KENDRICK
Date Filed:
05/08/1997
Date Assignment:
05/12/1997
Last Docket Entry:
05/17/2000
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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