98-001266 Construction Industry Licensing Board vs. Steve G. Peters Status: Closed Recommended Order on Monday, August 16, 1999.

Summary: Roofing contractor failed to pay a judgment assessing $28,000 in damages, plus attorney`s fees, costs, and interest, within a reasonable time. Administrative fine and restitution/payment of judgment and appropriate penalties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1266

)

STEVE G. PETERS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

January 13, 1999, in Fort Lauderdale, Florida, before Patricia

Hart Malono, a duly-designated administrative law judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue

Suite N-607

Miami, Florida 33128

For Respondent: John P. Seiler, Esquire

Law Offices of Seiler & Sautter

2900 East Oakland Park Boulevard

Suite 200

Fort Lauderdale, Florida 33306

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Amended Administrative Complaint dated July 15, 1998, and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

This case was originally referred to the Division of

Administrative Hearings on March 13, 1998, by the Department of

Business and Professional Regulation ("Department") for

assignment of an administrative law judge to conduct a formal

hearing involving an Administrative Complaint dated May 31, 1996,

charging Steve G. Peters with various violations of

Section 489.129, Florida Statutes (1993). Mr. Peters denied the

allegations in the Administrative Complaint and requested a

formal hearing. Accordingly, the Department referred the matter

to the Division of Administrative Hearings for assignment of an

administrative law judge. On April 13, 1998, the Department

filed a Motion for Relinquishment of Jurisdiction, to which

Mr. Peters did not object. In an order entered April 28, 1998,

the motion was granted, the file of the Division of

Administrative Hearings was closed, and the matter was returned

to the Department.

On August 27, 1998, the Department filed a Motion to Reopen

File, Amend Administrative Complaint, and to Schedule Hearing.

The Respondent did not file a response in opposition to this

motion, the motion was granted in an order entered October 2,

1998, and the file of the Division of Administrative Hearings was

reopened. In the seven-count Amended Administrative Complaint

dated July 15, 1998, the Department of Business and Professional

Regulation ("Department") charged Mr. Peters with violating

Sections 489.119(2) and 489.129(1)(e), (f), (h)2., (k), (n), and

(r), Florida Statutes (1993). These charges are based on

Mr. Peters' acts and omissions with respect to the re-roofing of

a residence owned by Victor Sher and on Mr. Peters' failure to

satisfy a final judgment that was entered against him in a

lawsuit brought by Mr. Sher arising out of the re-roofing

project.

At the hearing, the Department presented the testimony of

Victor Sher and of Mr. Sher's attorney, David Tangora. The

Department's Exhibits 1 through 13 were offered into evidence;

the Department's Exhibits 4 through 13 were received into

evidence at the hearing, and ruling was withheld on the

Department's Exhibits 1 through 3. Mr. Peters testified in his

own behalf, and the Respondent's Exhibits 1 through 4 were

offered and received into evidence.

Mr. Peters objected to the admission into evidence of the

Department's Exhibits 1, 2, and 3 on the grounds that they were

not properly authenticated. Ruling was withheld on the

admissibility of these three exhibits to allow the parties the

opportunity to present further legal argument. The Department's

Exhibit 1 purports to be copies of recor ds on file with the

Construction Industry Licensing Board ("Board"); a certificate of

authenticity is attached to the records, which is signed by

Rodney L. Hurst, who identifies himself as the Executive Director

and Records Custodian of the Board. In the certificate,

Mr. Hurst states that the documents attached to the certificate

are true and correct copies of records on file with the Board.

Finally, Mr. Hurst's signature is preceded by the following

attestation: "Witness my hand and the official seal of the

Construction Industry Licensing Board . . . ." The document is

under seal.

Mr. Peters maintains that, in addition to the above

information, a public record is not properly authenticated unless

it contains a final certification of a second official, given

under oath, attesting to the genuineness of the signature, to the

official position of the person signing the certificate of

authenticity, and to the genuineness of the seal placed on the

certificate. This argument is rejected. The certificate of

authenticity comprising part of the Department's Exhibit 1

satisfies the requirements for self-authentication of copies of

public records set forth in Section 90.902(1) and (4), Florida

Statutes. In addition, Section 489.113(8), Florida Statutes,

constitutes specific legislative authorization for the

admissibility of the Department's Exhibit 1 and provides as

follows: "Any public record of the [Construction Industry

Licensing] board, when certified by the executive director of the

board or his representative, may be received as prima facie

evidence in any administrative or judicial proceeding." The

Department's Exhibit 1 is received into evidence.

The Department's Exhibits 2 and 3 consist of certificates

signed by Rodney L. Hurst, who identifies himself as the

Executive Director and Records Custodian of the Board, in which

he certifies that a diligent search of the records of the Board

revealed that the two persons who were the subjects of the

certificates were not then and never had been licensed as state-

certified or state-registered contractors in Florida.

Mr. Hurst's signature is preceded by the following attestation:

"Witness my hand and the official seal of the Construction

Industry Licensing Board . . . ." The document is under seal.

These certificates satisfy the requirements for self-

authentication set forth in Section 90.902(1) and (4), Florida

Statutes. The Department's Exhibits 2 and 3 are received into

evidence.

After the Department rested its case-in-chief, Mr. Peters

made a motion for a directed verdict, asserting that the

Department had failed to submit sufficient evidence to support

any of the counts in the Amended Administrative Complaint.

Before Mr. Peters could present argument in support of the

motion, the Department interjected that such a motion is

inappropriate because, once a case such as this goes to final

hearing, an administrative law judge of the Division of

Administrative Hearings has authority only to enter a recommended

order for the Department's consideration. The Department's

counsel further stated that the Department would not " nolle

prosequi " any of the counts in the Amended Administrative

Complaint. Because the Department is correct that an

administrative law judge cannot enter a "directed verdict" at the

close of the Department's case, the motion was denied. See

Section 120.57(1)(k), Florida Statutes (Supp. 1998).

The transcript of the hearing was filed with the Division of

Administrative Hearings, and the Department timely filed proposed

findings of fact and conclusions of law. Even though he

requested and was granted an extension of time in which to file

proposed findings of fact and conclusions of law, Mr. Peters did

not do so.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation

is the state agency responsible for investigating and prosecuting

complaints made to the Department for violations of Chapter 489,

Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225,

Florida Statutes. Pursuant to Section 489.129(1), the

Construction Industry Licensing Board ("Board") is the entity

responsible for imposing discipline for any of the violations set

forth in that section.

2. At all times material to this proceeding, Mr. Peters was

licensed by the Board as a certified roofing contractor, having

been issued license number CC C029551. This license authorized

him to engage in business as a roofing contractor as an

individual and not as the qualifying agent of any business

entity.

3. Victor Sher owned and resided in a home located at

400 East Tropical Way in Plantation, Broward County, Florida. On

or about June 9, 1993, and July 1, 1993, Mr. Sher accepted two

written proposals to replace the roof on his home, which

proposals were submitted to him by R. J. Bonneau on behalf of RJB

International. The proposals were signed by Mr. Sher and by

"R. J. Bonneau, P.E., for the firm." Pursuant to these

contracts, Mr. Sher paid a deposit in the amount of $5,500 to RJB

International by check dated June 7, 1993; and, by check dated

July 1, 1993, Mr. Sher paid RJB International an additional $800.

Also, by check dated July 1, 1993, Mr. Sher paid Monier, a roof

tile supplier, $5,738.35 for materials.

4. At some point after the first contract between Mr. Sher

and RJB International was executed, Mr. Bonneau asked Mr. Peters

to submit an estimate of the cost of re-roofing Mr. Sher's house.

Mr. Peters sub mitted an estimate of $16,520 based on

specifications provided by Mr. Bonneau, 1 and Mr. Bonneau accepted

the estimate. It was Mr. Peters' understanding that RJB

International was the general contractor for the project,

operating under a contract with Mr. Sher, and that he was the

roofing subcontractor for the project, operating under a

"contract" with RJB International based on Mr. Bonneau's

acceptance of his estimate for the re-roofing work. He expected

to be paid by RJB International.

5. On or about June 22, 1993, Mr. Peters obtained a

building permit from the City of Plantation for the roof

replacement project on Mr. Sher's residence. Mr. Peters began

working on the Sher re-roofing project on or about June 23, 1993.

6. By checks dated July 23, August 16, August 19, and

August 23, 1993, Mr. Sher paid Mr. Peters $800, $2,432, $2,000,

and $1,000, respectively, totaling $6,232. Mr. Peters was

surprised to receive payment directly from Mr. Sher, but he

assumed that that was the arrangement between Mr. Sher and RJB

International. He never received any of the $6,200 Mr. Sher paid

to RJB International.

7. Mr. Peters worked on the project until late August or

early September 1993, when he stopped working on the project

because he had not received payment for the work completed to

date. Mr. Peters requested payment from Mr. Sher, only to be

referred to RJB International, which in turn, referred him to

Mr. Sher. When Mr. Peters stopped working on the Sher residence,

he advised Mr. Sher that he would complete the work as soon as he

received the payments he considered due. Mr. Peters estimated

that, when he left the job, $1,000 to $1,500 worth of work

remained to complete the re-roofing project. He did not hear

anything more from Mr. Sher or RJB International, and, in 1995,

he moved to Ohio.

8. After Mr. Peters stopped work on Mr. Sher's roof,

Mr. Sher obtained an owner's building permit and completed the

project.

9. In September 1994, Mr. Sher filed a five-count complaint

against Mr. Peters and Rosaire J. Bonneau d/b/a RJB International

in the Circuit Court of the Seventeenth Judicial Circuit in

Broward County, Florida, in which he sought to recover damages he

allegedly suffered as a result of re-roofing project; three

counts of the complaint, breach of contract, negligence, and

conversion, named only Mr. Peters as defendant.

10. A default was entered against Mr. Peters, and, in a

final judgment entered on the default on May 19, 1995, Mr. Peters

was ordered to pay to Mr. Sher $28,142.70 in damages, plus

$1,740.00 in attorney's fees and costs, for a total of

$29,882.70, with interest accruing on this sum at the rate of

eight percent per year. In addition, Mr. Peters was assessed

$4,447.45 in prejudgment interest. Mr. Peters was listed on the

judgment as a person to whom a copy was furnished, but he did not

receive the copy.

11. Mr. Peters first learned of the existence of the

judgment in October 1997, when he received a copy of the

Department's Administrative Complaint dated May 31, 1996. In

late 1997 or early 1998, Mr. Peters received notification of the

judgment from another source, and he also received a letter from

Mr. Sher's insurance company advising him that they had paid

Mr. Sher approximately $30,000 in damages and were looking to

Mr. Peters for reim bursement.

12. Mr. Peters subsequently retained an attorney to try to

negotiate with Mr. Sher. Mr. Peters was willing to pay $1,000 to

satisfy the judgment because he believed that the roof could have

been finished for that amount. Mr. Sher did not accept the

offer.

13. In a letter to Mr. Peter's attorney dated August 26,

1998, Mr. Sher's attorney enclosed a copy of the judgment against

Mr. Peters and indicated that his client would be willing to

negotiate a payment arrangement with Mr. Peters.

14. At the time of the final hearing, Mr. Peters had not

satisfied the judgment in whole or in part or made any

arrangements with Mr. Sher for payment of the award; Mr. Peters

had not moved to set aside, vacate, or discharge the judgment in

bankruptcy; and he had not appealed the judgment. 2

15. Mr. Peters has been subject to two previous

disciplinary actions relating to his state certification as a

roofing contractor. The first disciplinary action against

Mr. Peters resulted in entry of a final order in January 1988, in

which he was found guilty of contracting in a name not on his

license and of failing to qualify a business organization; an

administrative fine of $1,000 was imposed. The second

disciplinary action resulted in entry of a final order in

January 19 94, in which he was found guilty of failing to have his

license number on a contract and imposing an administrative fine

of $100.

16. The Department provided an affidavit at the hearing in

which it claimed that it had incurred costs of investigating and

prosecuting this case totaling $879.35, excluding legal costs.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to Sections 120.569 and .57(1), Florida

Statutes (1997).

18. In its Amended Administrative Complaint, the Department

seeks to impose penalties on Mr. Peters which include revocation

or suspension of his certification as a roofing contractor and

the imposition of an administrative fine. Accordingly, the

Department has the burden of proving by clear and convincing

evidence that Mr. Peters committed the offenses alleged in the

Amended Administrative Complaint. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932, 933-34 (Fla. 1996).

19. The Department conceded in the proposed conclusions of

law filed with the Division of Administrative Hearings that it

failed to prove by clear and convincing evidence that Mr. Peters

committed the violations alleged in Counts I through VI of the

Amended Administrative Complaint. Therefore, the only remaining

dispute concerns Count VII of the complaint, in which the

Department has alleged that Mr. Peters violated Section

489.129(1)(r), Florida Statutes.

20. Section 489.129(1) provides in pertinent part:

The board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or 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, or assess costs

associated with investigation and

prosecution, if the contractor, financially

responsible officer, or business organization

for which the contractor is primary

qualifying agent or is a secondary qualifying

agent responsible under s. 489.1195 is found

guilty of any of the following acts:

* * *

(r) 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.

21. Rule 61G4-17.001(23), Florida Administrative Code,

defines "reasonable time" for the purposes of Section

489.129(1)(r) as follows: "[N] inety (90) days following the

entry of a civil judgment that is not appealed. The Board will

consider a mutually agreed upon payment plan as satisfaction of

such a judgment so long as the payments are current."

22. Based on the findings of fact herein, the Department

has met its burden of proving by clear and convincing evidence

that Mr. Peters has violated Section 489.129(1)(r). Although the

rule defining "reasonable time" was promulgated subsequent to

entry of the final judgment against Mr. Peters, the rule

definition applies in this case because Mr. Peters' obligation to

pay the judgment within a "reasonable time" is a continuing

obligation. Even though Mr. Peters learned of the judgment in

late 1997 or early 1998, the judgment obtained by Mr. Sher in

May 1995 had not been vacated or reversed as of January 13, 1999,

nor had Mr. Peters satisfied the judgment or devised a payment

plan acceptable to Mr. Sher.

23. Rule 61G4-17.001, Florida Administrative Code, sets

forth penalty guidelines for disciplinary action and provides in

pertinent part:

The following guidelines shall be used in

disciplinary cases, absent aggravating or

mitigating circumstances and subject to 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, suspension or revocation.

* * *

(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

extend [sic] that such order does not

contravene federal bankruptcy law.

24. Rule 61G4-17.003, Florida Administrative Code, provides

in pertinent part:

(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 regardless of whether the violations in

the present and prior disciplinary actions

are of the same or different subsections of

the disciplinary statutes.

Mr. Peters was subject to disciplinary action in 1988 and 1994,

albeit for relatively minor offenses. Pursuant to Rule 61G4-

17.003(1), the violation of Section 489.129(1)(r) must be

considered a repeat violation.

25. Rule 61G4-17.002, Florida Administrative Code, sets

forth the mitigating and aggravating circumstances to be

considered in determining the appropriate penalty to be imposed

in this case:

Circumstances which may be considered for the

purposes of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

(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.

26. In the proposed recommendation submitted with the

Department's proposed findings of fact and conclusions of law,

the Department has suggested that Mr. Peters be found guilty only

"of having violated Section 489.129(1)(r), as alleged in Count

VII of the Amended Administrative Complaint," and the Department

has suggested the disciplinary action it considers appropriate

for this violation. With the exception of the Department's

recommendation that Mr. Peters be required to pay $879.35, plus

further costs accrued prior to the Board's entering its final

order, as costs for the investigation and prosecution of this

case, 3 the Department's suggested penalties are reasonable in

light of the permitted penalties set forth in Section 489.129(1),

of the range of penalties set forth in Rule 61G4-17.001(18) for a

repeat offense, and of the aggravating and mitigating factors

established by the Board in Rule 61G4-17.002.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Construction Industry Licensing

Board enter a final order:

1. Dismissing Counts I through VI of the Amended

Administrative Complaint against Steve G. Peters;

2. Finding Mr. Peters guilty of having violated Section

489.129(1)(r), Florida Statutes, as alleged in Count VII of the

Amended Administrative Complaint;

3. Imposing an administrative fine on Mr. Peters in the

amount of $2,000;

4. Requiring that Mr. Peters pay all reasonable costs of

investigation and prosecution associated with the Department of

Business and Professional Regulation's investigation and

prosecution of the charges set forth in the Amended

Administrative Complaint; and

5. Requiring that Mr. Peters either pay restitution to

Victor Sher in the amount of $28,142.70 or, in the alternative,

provide proof of satisfaction of the May 9, 1995, civil judgment.

DONE AND ENTERED this 16th day of August, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of August, 1999.

ENDNOTES

1 / Mr. Peters never saw the contracts between Mr. Sher and RJB

International.

2 / Mr. Peters presented testimony at the final hearing regarding

the legal sufficiency of service of process of the complaint

filed in the circuit court, the validity of the allegations

stated in the complaint, and his failure to receive a copy of the

judgment at the time it was entered. These issues cannot be

resolved in this forum. Mr. Peters is prohibited from

challenging the correctness or validity of the default final

judgment. When a judgment or decree, including a default

judgment, has been rendered by a court of competent jurisdiction

and the judgment or decree has not been reversed, neither party

to that judgment or decree is allowed to challenge its

correctness or validity. Department of Health and Rehabilitative

Services v. Wood , 600 So. 2d 1298, 1300 (Fla. 5th DCA 1992).

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

Department to "submit to the [appropriate] 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 Mr. Peters the opportunity to

dispute the accuracy and/or reasonableness of the costs claimed

by the Department before the Board determines the amount of costs

he will be required to pay.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue

Suite N-607

Miami, Florida 33128

John P. Seiler, Esquire

Law Offices of Seiler & Sautter

2900 East Oakland Park Boulevard

Suite 200

Fort Lauderdale, Florida 33306

William Woodyard, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney L. Hurst, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.

1 Mr. Peters never saw the contracts between Mr. Sher and RJB

International.

2 Mr. Peters raised questions at the final hearing regarding the

legal sufficiency of service of process of the complaint, the

validity of the allegations stated in the complaint, and his

failure to receive a copy of the judgment at the time it was

entered. These issues cannot be resolved in this forum.

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

Department of Business and Professional Regulation 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

Respondent an opportunity to dispute and challenge the accuracy

and/or reasonableness of the itemization of investigative and

prosecutorial costs before the Board determines the amount of

costs Respondent will be required to pay.