97-002141
Construction Industry Licensing Board vs.
Robert Loeffler
Status: Closed
Recommended Order on Monday, November 10, 1997.
Recommended Order on Monday, November 10, 1997.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION , )
16CONSTRUCTION INDUSTRY LICENSING )
20BOARD , )
22)
23Petitioner , )
25)
26vs. ) Case No. 97-2141
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.
- Date
- Proceedings
- Date: 05/17/2000
- Proceedings: Final Order (after District Court 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.
- 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.