01-003124PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Manuel Rivero Status: Closed Recommended Order on Wednesday, December 12, 2001.

Summary: Contractor disciplined for abandoning a project and failing to satisfy a judgment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3124PL

)

MANUEL RIVERO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held by video

teleconference at sites in Miami and Tallahassee, Florida, on

October 23, 2001, by Florence Snyder Rivas, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings .

APPEARANCES

For Petitioner: Diane Snell Perera, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N - 607

Miami, Florida 33128

For Respondent: Manuel Rivero

61 East 16th Street

Hialeah, Florida 33010

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses a s set forth in

the Administrative Complaint dated June 13, 2000, and if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 13, 2000,

Petitioner alleged that Respondent had violated the laws

regulating his pro fessional activities as a certified general

contractor. Specifically, the three - count Administrative

Complaint charged the Respondent violated: Section

489.129(1)(k), Florida Statutes (1995), by abandoning a

professional project; Section 489.129(1)(r), F lorida Statutes

(1997), by failing to satisfy the terms of a civil judgment

within a reasonable time; and of violating Section

489.129(1)(j), Florida Statutes, by failing to obtain a

qualified business certificate of authority.

Respondent timely requested a formal hearing pursuant to

Chapter 120, Florida Statutes. Respondent appeared at the

hearing and was represented by his son as a qualified

representative.

At the final hearing the Petitioner presented the

testimony of Manual Chamizo and Serajo Ascunce. Jose D .

Mitrani was tendered by Petitioner and received without

objection as an expert regarding the construction profession.

Petitioner's Exhibits 1 - 9 and Respondent's Exhibits 1 - 3

were accepted into evidence during the video hearing, but were

not filed with the Division of Administrative Hearings .

The transcript of the hearing was filed November 15,

2001. The parties timely filed their respective Proposed

Recommended Orders which have been carefully considered in the

preparation of this Recommended Ord er.

FINDINGS OF FACT

1. At all times material to this case, Respondent is a

licensed Certified General Contractor in the State of Florida.

2. At all times material to this case, Respondent was

the qualifying agent for Rivero Construction, Inc.

3. On or about June 20, 1996, Respondent contracted with

Manuel Chamizo (Chamizo) to construct a parking lot with

drainage at 4735 Palm Avenue, Hialeah, Florida, and to repave

the parking lot at 4719 Palm Avenue, Hialeah, Florida, for the

total price of $7,090.00.

4. Chamizo paid Rivero Construction, Inc., the full

contract price.

5. Respondent constructed the parking lot at 4735 Palm

Avenue, but did so in a substandard manner. Specifically, the

parking lot flooded and was rendered unusable because

Respondent ha d broken a sewer pipe during construction. After

being notified of the problem, Respondent failed to correct

it.

6. Respondent failed to perform any of the contracted

work at 4719 Palm Avenue.

7. Dissatisfied with Respondent's performance, Chamizo

sued Rivero Construction, Inc., for damages in the County

Court in and for Miami - Dade County, Florida.

8. On or about August 24, 1998, the lawsuit was

concluded in Chamizo's favor with the entry of a final

judgment against Rivero Construction, Inc.

9. Respo ndent has failed to satisfy the final judgment.

10. Respondent has failed to obtain a qualified business

certificate of authority.

11. Petitioner has incurred costs of $1,669.09 in the

investigation and prosecution of Respondent.

CONCLUSIONS OF LAW

1 2. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

this proceeding. Section 120.57, Florida Statutes.

13. Petitioner is empowered to revoke, suspend or

otherwise discipline the license of a contract or for any or

all of the violations charged in the Administrative Complaint.

Section 489.129, Florida Statutes (1995).

14. To prevail, Petitioner must prove its allegations by

clear and convincing evidence. Ferris v. Turlington , 510 So.

2d 292 (Fla. 198 7).

15. Count 1 of the Administrative Complaint charges the

Respondent with violating Section 489.129(1)(k), Florida

Statutes(1995), which prohibits:

. . . abandoning a construction project in

which the contractor is engaged or under

contract as a contrac tor. A project may be

presumed abandoned after 90 days if the

contractor terminates the project without

just cause or without proper notification

to the owner, including the reason for

termination, or fails to perform work

without just cause for 90 consec utive days.

16. There is clear and convincing evidence that

Respondent, after being paid the full contract price,

performed negligently with respect to the property at 4735

Palm Avenue, and failed to correct his deficient performance.

With respect to th e property at 4719 Palm Avenue, Respondent

failed to perform at all.

17. Count II of the Administrative Complaint charges the

Respondent with violating Section 489.129(1)(r), Florida

Statutes (1997), which prohibits:

. . . 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

licensees profession.

18. Further, the Construction Industry Licensing Board

in Rule 61G4 - 17.001(23), Florida Administrative Code, has

provided:

For purposes of Section 489.129(1)(r)

[now Section 489.129(1)(q), F.S.]

reasonable time means ninety (90) days

following the entry of a civil judgment

that is not appealed. The Board will

consi der a mutually agreed upon payment

plan as satisfaction of such a judgment so

long as the payments are current.

Petitioner has met its burden of clearly and convincingly

proving that Respondent was the subject of a valid final

judgment. The judgment ha s not been satisfied in whole or

in part, nor have the parties agreed to a payment plan.

19. Count III of the Administrative Complaint charges

that the Respondent violated Section 489.129(1)(j), Florida

Statutes (1997), by failing to comply with Section 4 89.119(2),

Florida Statutes, (1995). The relevant statutory provisions

provide:

If the applicant proposes to engage in

contracting as a business organization,

including any partnership, corporation,

business trust, or other legal entity, or

in any name other than the applicant's

legal name or a fictitious name where the

applicant is doing business as a sole

proprietorship, the business organization

must apply for a certificate of authority

through a qualifying agent and under, the

fictitious name, if any .

Petitioner has clearly and convincingly proven that Respondent

has not obtained a qualified business certificate of authority

for Rivero Construction, Inc.

20. Petitioner has incurred costs in its investigation

and prosecution of Respondent. The Pet itioner, pursuant to

Rule 61G4 - 17.007(19) and Rule 61G4 - 12.07.8, Florida

Administrative Code, promulgated pursuant to Chapter 489,

Florida Statutes, is entitled to recover its costs. Rule

61G4 - 17.001(19) provides:

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. Petitioner's affidavit of costs, while not

finalized, is a true and correct reflection of costs incurred

through May 30, 2001. In accordance with Rule 61G4 - 17.001(20)

and Rule 61G4 - 12.018, Florida Administrative Code, promulgated

pursuant to Section 489. 129, Florida Statutes, Petitioner has

requested that the record of this proceeding be kept open

through the date of final disciplinary action as Petitioner is

entitled to recover all costs incurred for the investigation

and prosecution of this matter. At this date, Petitioner's

costs are not certain, as costs may increase through the date

of final disciplinary action. Petitioner represents that the

affidavit of costs submitted by Petitioner will be amended to

reflect the Petitioner's total costs through f inal

disciplinary action at the time final agency action is to be

taken.

22. In accordance with Rule 61G4 - 17.001, Florida

Administrative Code, the following guidelines shall be used in

disciplinary cases:

489.129(l)(k): Abandonment. First

violation, $5 00 to $2,000 fine; repeat

violation, revocation and $5,000 fine.

489.129(1)(h): Failure to satisfy a

civil judgment obtained against the

licensee or business organization. First

violation, $500 to $7,000 fine and/or proof

of satisfaction of civil judg ment. Repeat

violation, $1,000 to $5,000 fine and/or

proof of satisfaction of civil judgment,

probation, suspension, or revocation.

489.129(1)(j): 489.119, failure to

register qualified business organization.

First violation, $250 to $500 fine; rep eat

violation, $500 to $1000 fine and/or

probation, suspension or revocation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that a final order be entered

finding that Respondent committed the offenses set forth in

the Administrative Complaint dated June 13, 2000; ordering

that Respondent pay an administrative fine in the amount of

$1,250; pay restitution to Manuel Chamizo in the amount of the

Final Judgement obtained by Manuel Chamizo; and pay costs

inc urred in the investigation and prosecution of this

proceeding in the initial amount of $1,669.09, plus costs

incurred through the date of final action, which revised

affidavit of costs will be submitted to the Board at final

action.

DONE AND ENTERED this 1 2th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3 060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of December, 2001.

COPIES FURNISHED:

Diane Snell Perera, Esquire

Department of Business a nd

Professional Regulation

401 Northwest Second Avenue

Suite N - 607

Miami, Florida 33128

Manuel Rivero

61 East 16th Street

Hialeah, Florida 33010

Suzanne Lee, Executive Director

Construction Industry Licensing Board

Department of Business and

Pro fessional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

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.