04-003047 William And Marlene Grubb vs. Department Of Business And Professional Regulation, Construction Industry Licensing Board And Norman Levinsky Status: Closed Recommended Order on Tuesday, December 28, 2004.

Summary: Petitioners seeking monies from the Florida Homeowners` Construction Recovery Fund are not entitled to a Section 120.57(1), Florida Statutes, hearing on their claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM AND MARLENE GRUBB, )

)

Petitioners, )

)

vs. ) Case No. 04 - 3047

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUS TRY )

LICENSING BOARD, and )

NORMAN LEVINSKY, )

)

Respondents. )

________________________________ )

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

November 19, 2004, by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Marlene Grubb, pro se

10551 Nort hwest 21st Court

Sunrise, Florida 33322

For the Board: Adrienne C. Rodgers, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 1023

For Mr. Levinsky: No Appearance

STATEMENT OF THE ISSUE

Whether Petitioners' claim for monies from the Florida

Homeowners' Construction Recovery Fund is subject to

adjudication pursuant to Section 120.5 7(1), Florida Statutes,

and, if so, how much should Petitioners be awarded.

PRELIMINARY STATEMENT

On July 29, 2004, the Construction Industry Licensing Board

(Board) rendered a written order awarding Petitioners $1,025.00

from the Florida Homeowners' Con struction Recovery Fund. On

August 12, 2004, Petitioners filed a Request for Hearing on the

Board's action, contending that they "should be awarded at least

$3,475.00." The Board referred the matter to DOAH on August 30,

2004, "for the assignment of an A dministrative Law Judge to

conduct a formal hearing."

As noted above, the final hearing in this case was held on

November 19, 2004. Petitioners (through Petitioner Marlene

Grubb) and the Board (through its attorney, Adrienne C. Rodgers,

Esquire) made appe arances at the hearing. Respondent Norman

Levinsky, although given due notice of the hearing, did not

appear, either in person or through counsel or a qualified

representative.

Two witnesses testified at hearing: Petitioner Marlene

Grubb (on behalf of Petitioners) and Valerie Singleton (on

behalf of the Board). In addition to these two witnesses'

testimony, 12 exhibits (Petitioners' Exhibit 1, and the Board's

Exhibits 1 through 11) were offered and received into evidence.

Following the conclusion of th e evidentiary portion of the

hearing, the undersigned established a deadline (ten days from

the date of the filing of the hearing transcript with DOAH) for

the filing of proposed recommended orders.

The hearing Transcript (consisting of one volume) was f iled

with DOAH on December 13, 2004.

The Board timely filed its Proposed Recommended Order on

December 23, 2004. To date, neither Petitioners, nor

Mr. Levinsky, has filed any post - hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearin g, and the record as

a whole, the following findings of fact are made:

1. On or about October 1, 1997, Petitioners entered into a

contract in which they agreed to pay Respondent Norman

Levinsky's company, Broward Roofing, Inc., $3,700.00 to place a

"new s hingle roof" on Petitioners' residence and perform other

related roofing work. The contract provided Petitioners with a

ten - year "labor warranty" and a 30 - year shingle warranty.

2. After the contracted work was completed and Petitioners

paid Broward Roof ing, Inc., the $3,700.00 called for by the

contract, the newly - installed roof started leaking.

3. Broward Roofing, Inc., refused to make the necessary

repairs.

4. Petitioners paid other contractors to perform the

repair work.

5. On November 17, 1998 , Petitioner filed an application

seeking to recover from the Florida Construction Industries

Recovery Fund (which has since been renamed the Florida

Homeowners' Construction Recovery Fund) $1,025.00 that they had

paid for repairs to the "new shingle roof" Broward Roofing,

Inc., had recently installed, contending that they were

deserving of such an award inasmuch as "[t]he roofer [Broward

Roofing, Inc.] [had] refused to fix [their] new roof that was

leaking and [had] totally ignored [their] 10 year warranty ."

Their application was filed on a Board - produced Construction

Industries Recovery Fund Claim Form (Form), at the end of which

was printed the following:

In addition to your complete written

statement, we are requesting documentation

of your contractual relationship with the

contractor and evidence supporting your

claim. Certified copies of the following

list of documents are required to assist us

in determining your eligibility for

recovery.

I have attached the following: (these

documents are required for proper processing

of your claim. Failure to provide required

documentation will delay processing and

could result in your claim being denied due

to incompleteness.)

__ Court certified copy of the Civil

Judgment, and/or Final Order of the

Constructi on Industry Licensing Board

directing restitution be paid.

__ Copy of contract between you and the

contractor.

__ Copies of applicable bonds, sureties,

guarantees, warranties, letters of credit

and/or policies of insurance.

__ Court certified copies of levy and

execution documents.

__ Proof of all efforts/inability to

collect restitution judgment.

No claims will be processed until 45 days

after the date of entry of the Civil

Judgment and/or Final Restitution Order.

On the completed Form that Petitione rs filed, only the spaces

next to " Copy of contract between you and the contractor" and

"Copies of applicable bonds, sureties, guarantees, warranties,

letters of credit and/or policies of insurance" were checked.

6. On May 4, 1999, the Broward County Cen tral Examining

Board of Construction Trades filed an Administrative Complaint

against "Norman Levinsky d/b/a Broward Roofing, Inc.," which

read as follows:

Count I

1. At all times material hereto RESPONDENT

was a roofing contractor holding Broward

County Certificate of Competency #95 - 7726 - R -

R.

2. On or about September 16, 1997,

RESPONDENT entered into a contract to re -

roof Complainant's home located at 10551

N.W. 21st Court, Sunrise, Florida.

3. RESPONDENT obtained a building permit.

4. The work was completed on March 10, 1998

and the roof began to leak on June 1, 1998.

5. RESPONDENT failed to properly supervise

to ensure that the tie in with flat roof was

properly completed. His failure to ensure

such a proper tie in resulted in leaks.

6. Where fore, it is charged that the

RESPONDENT violated Subsection 9 - 14(b)(11)

of the Broward County Code of Ordinances by

failing to properly supervise a project

commenced pursuant to a building permit.

Count II

7. Paragraphs 1 and 2 are included as if

restat ed herein.

8. Complainant paid RESPONDENT the total

contract price of $3,700.00.

9. RESPONDENT completed the work.

10. RESPONDENT gave Complainant a 10 year

labor warranty.

11. RESPONDENT failed and refused to honor

his warranty.

12. Complainant had to pay additional

amount of $1,025.00 for a new contractor to

repair the work of RESPONDENT.

13. Wherefore, it is charged that the

RESPONDENT violated Subsection 9 - 14(b)(5)c

of the Broward County Code of Ordinances by

committing mismanagement which c auses

financial harm to a customer because the

customer had to pay more for the contracted

job than the original contract price.

Count III

14. Above paragraphs are included as if

restated herein.

15. RESPONDENT failed to honor the warranty

and comple te the project in a workmanlike

manner for a period in excess of 90

consecutive days.

16. Wherefore, it is charged that the

RESPONDENT violated Subsection 9 - 14(b)(8) of

the Broward County Code of Ordinances by

abandoning a construction project in which

R ESPONDENT was under contract as a

contractor.

It is determined that the above stated

charges are grounds for disciplinary action

pursuant to Chapter 9, Sections 9 - 14, 9 - 28

and 9 - 46, Broward County Code of Ordinances

and Section 6.11, Broward County Charte r.

Broward County has the authority to certify

and discipline local contractors pursuant to

Section 489.131, Florida Statutes.

7. Following a hearing on the Administrative Complaint

held May 25, 1999, the Broward County Central Examining Board of

Buildi ng Construction Trades, on June 16, 1999, issued an Order,

which read as follows:

A Disciplinary Proceeding was held on

May 25, 1999, before the Broward County

Central Examining Board of Building

Construction Trades (the "Board"), in

accordance with Sectio n 9 - 14, Broward County

Code of Ordinances (the "Code"). Service of

the Administrative Complaint filed against

the Respondent was made by certified mail.

The Respondent being duly advised was not

present at the hearing. The Board heard the

sworn testimon y of William Grubb and Marlene

Grubb.

Upon consideration, it is ORDERED:

1. The allegations of fact as set forth in

the Administrative Complaint are found to be

true and adopted and incorporated herein by

reference as findings of fact.

2. The conclusi ons of law alleged and set

forth in the Administrative Complaint are

approved and adopted and incorporated

herein.

Upon these findings, it is therefore

ORDERED:

1. That Respondent's Certificate of

Competency is hereby revoked.

2. That the Respondent m ake restitution to

the Complainants in the amount of $3,700.00.

3. Prior to the RESPONDENT being allowed to

reinstate his certificate of competency or

being allowed to sit for any exam

administered by a Broward County Central

Examining Board, or receivin g any license

from a Broward County Central Examining

Board, RESPONDENT must appear before the

Board and prove that the restitution amount

has been paid in full.

The board's order may be appealed by

Petition for Writ of Certiorari to the

Seventeenth Judic ial Circuit within thirty

(30) days of the date of rendition of the

order of the board as provided by the

Florida Rules of Appellate Procedure.

FURTHER, the Broward County Central

Examining Board of Construction Trades makes

RECOMMENDATION to the Florida Construction

Industry Licensing Board to impose on the

state registration, the following penalty:

1. Revoke state registration and require

the RESPONDENT to make restitution to the

Complainants in the amount of $3,700.00.

In accordance with Florida Stat utes, Chapter

489.131(7)(c) and (d), the disciplined

contractor, the complainant, or the

Department of Business and Professional

Regulation may challenge the local

jurisdiction enforcement body's recommended

penalty for Board action to the State

Constructi on Industry Licensing Board. A

challenge shall be filed within sixty (60)

days of the issuance of the recommended

penalty to the State Construction Industry

Licensing Board in Jacksonville, Florida.

If challenged, there is a presumptive

finding of probab le cause and the case may

proceed before the State Board without the

need for a probable cause hearing.

Failure of the disciplined contractor, the

complainant, or the Department of Business

and Professional Regulation to challenge the

local jurisdiction's recommended penalty

within the time period set forth in this

subsection shall constitute a waiver of the

right to a hearing before the State

Construction Industry Licensing Board.

A waiver of the right to a hearing before

the State Board shall be deemed an admission

of the violation, and the penalty

recommended shall become a final order

according to procedures developed by State

Board rule without further State Board

action.

Pursuant to Section 120.569, Florida

Statutes, the Parties are hereby notified

that they may appeal the Final Order of the

State Board by filing one copy of a Notice

of Appeal with the Clerk of the Department

of Business and Professional Regulation,

Northwood Centre, 1940 North Monroe Street,

Tallahassee, Florida 32399 - 0792, and by

filing the filing fee and one copy of the

Notice of Appeal with the District Court of

Appeal within thirty (30) days of the

effective date of said Order.

8. On or sometime after September 1, 1999, Petitioners

filed an affidavit prepared by Petitioner Mar lene Grubb, which

read as follows:

I, Marlene A. Grubb, hereby certify that I

have completed a reasonable search and

inquiry in accordance with the instructions

provided by the Construction Industry

Licensing Board and have not found property

or assets to satisfy my Board Order[ 1 ] in

whole or part.

Legal Names

The Department of State revealed that the

company Broward Roofing Inc. was

administratively dissolved on 9/10/98. The

C[IL]B verified the contractor[']s name and

license number as: Norman Levinsky d/b/a

Broward Roofing Inc. RC0047656.

Real Property

My search included property in the names:

Norman Levinsky and Broward Roofing Inc. in

Broward County, Florida. Norman Levinsky

had no real property and Broward Roofing

Inc. is delinquent on property ta xes for

over two years.

Boats and Motor Vehicles

There were no vehicles or boats in the motor

vehicle data bank registered to Norman

Levinsky or Broward Roofing Inc.

Aircraft

The FAA in Oklahoma City, Ms. Jeannie

Vannest stated that there is no registra tion

listed for Norman Levinsky or Broward

Roofing Inc.

9. On March 25, 2004, the Board rendered a Final Order

Approving Recommended Order of Disciplinary Action by Local

Enforcement Body, which approved the Broward County Central

Examining Board of Buil ding Construction Trades' June 16, 1999,

Order and read as follows:

THIS MATTER came before the Construction

Industry Licensing Board (hereinafter

referred to as the "Board") pursuant to

Section 489.131(7), Florida Statutes, for a

determination of whether to accept the

proposed recommended penalty by the Broward

County Central Examining Board of Building

Construction Trades (a copy of which is

attached and incorporated herein by

reference). Neither the Petitioner, the

Respondent nor the Complainant filed a

challenge to the local enforcement body's

recommended penalty to the Board.

Upon consideration of the local enforcement

body's Administrative Complaint, the minutes

from the meetings on January 21, 1999, and

May 25, 1999, and the Final Order of

Disciplin ary Action and its proposed

recommended penalty to the Board in this

matter and being otherwise fully advised in

the premises it is hereby ORDERED AND

ADJUDGED:

1. The proposed recommended penalty is

hereby approved and adopted in its entirety

and incorp orated herein by reference.

2. In accordance with the recommended

penalty, Respondent's state registration (RC

0047656) is hereby REVOKED. Respondent

shall pay restitution in the amount of

$3,700 to William and Marlene Grubb.

3. Respondent will adher e to and abide by

all of the terms and conditions of the

recommended penalty. Failure to abide by

the terms of this Order may result in

further action by the Board.

4. This Order shall be placed in and become

a part of Respondent's official records.

5. A change in the Respondent's licensure

status, including the suspension,

revocation, voluntary relinquishment, or

delinquency of license, does not relieve the

Respondent of his obligation to pay any

fines, costs, interest or restitution

imposed in this a nd previous orders.

Pursuant to Section 120.68, Florida

Statutes, the Parties are hereby notified

that they may appeal this Final Order by

filing a Notice of Appeal with the Clerk of

the Department of Business and Professional

Regulation, Northwood Centre , 1940 North

Monroe Street, Tallahassee, Florida 32399 -

0792, and by filing the filing fee and one

copy of the Notice of Appeal with the

District Court of Appeal within thirty (30)

days of the effective date of this Order.

This Order shall become effective upon

filing with the Clerk of Department of

Business and Professional Regulation.

This was the "Final Order of the Construction Industry Licensing

Board directing restitution be paid," that, according to the

Form Petitioners used to submit their claim fo r monies from the

Florida Construction Industries Recovery Fund, was "required for

proper processing of [their] claim."

10. On June 10, 2004, more than five and a half years

after Petitioners had filed their claim application, the Board

met to determine t he merits of their claim pursuant to Section

120.57(2), Florida Statutes. Although given due notice of the

Board meeting, neither Petitioners, nor Mr. Levinsky, made an

appearance, either in person or through a representative, at the

meeting. "[U]pon con sideration of the documentation and

testimony submitted," the Board determined that Petitioners'

claim for $1,025.00 should be "approved."

11. On July 29, 2004, the Board rendered (that is, filed

with the agency clerk) a written order to this effect, whic h

read as follows:

THIS MATTER came before the Construction

Industries Recovery Fund Committee and

Construction Industry Licensing Board (the

"Board") pursuant to sections 120.57(2) and

489.143, Florida Statutes (2003) as well as

rule 61G4 - 21.004, Florida Administrative

Code, on June 10, 2004, in Coral Gables,

Florida, for consideration of a claim for

restitution from the Construction Industries

Recovery Fund (the "Recovery Fund").

William [a]nd Marlene Grubb ("Claimants")

and Norman Levinsky ("Licensee") were duly

notified of the proceedings. At the

proceedings before the committee and the

Board, Claimants were not present, and were

not represented by counsel. Licensee was

not present, and was not represented by

counsel.

Upon consideration of the docume ntation and

testimony submitted, it is ORDERED:

1. Claimants satisfied all requirements for

payment from the Recovery Fund.

a. The Recovery Fund Claim was filed on

November 17, 1998. The application was

timely filed.

b. The contractor was paid $3,70 0.00.

c. Claimants were awarded restitution from

the Construction Industry Licensing Board on

March 24, 2004, in the amount of $3,700.00,

pursuant to a Final Order Approving

Recommended Order of Disciplinary Action by

Local Enforcement Body. The Board a dopted

and approved the Broward County Central

Examining Board of Building Construction

Trades recommendation, which found:

i. Contractor held a current and active

license at all times material to the

transaction;

ii. The construction contract is dated

September 18, 1997;

iii. The work was completed on March 10,

1998, and the roof began leaking June 1,

1998;

iv. Contractor failed to honor the warranty

on the roof;

v. As a result, Claimants paid an

additional $1,025.00 for repair work;

vi. Contra ctor violated subsection 9 -

14(b)(5)c of the Broward County Ordinances

by committing mismanagement, which caused

financial harm to a consumer because the

consumer had to pay more for the contractual

job than the original contract price.

d. The contractor engaged in activity that

appears [to] violate section 489.129(1)(g)2,

Florida Statutes (2003).

e. There is an asset search in the file

that shows no assets are available from

which claimant can satisfy the judgment.

2. Pursuant to section 489.143, Flor ida

Statutes (2003), the maximum amount that the

Recovery Fund can pay on a single claim is

$25,000.00. Thus, the claim for restitution

from the Recovery Fund is APPROVED in the

amount of $1,025.00.

3. In accordance with rule 61G4 - 21.005,

Florida Admini strative Code, the Secretary

of the Florida Department of Business and

Professional Regulation is directed to pay

the claim from the Recovery Fund after

forty - five days from the date upon which the

Final Order is filed with the Agency Clerk.

4. Pursuant to section 489.143(6), Florida

Statutes (2003), upon payment of the claim

from the Recovery Fund, Licensee's licensure

to practice contracting is AUTOMATICALLY

SUSPENDED without any further administrative

action.

5. Pursuant to section 489.143(2), Florid a

Statutes (2003), upon receipt by Claimant

under section 489.143(1), Florida Statutes

(2003) of payment from the Recovery Fund,

Claimant shall assign his or her additional

right, title, and interest in the judgment

or restitution order, to the extent of s uch

payment, to the Board, and thereupon the

Board shall be subrogated to the right,

title, and interest of the Claimant; and any

amount subsequently recovered on the award,

judgment or restitution order by the Board,

to the extent of the right, title, and

interest of the Board therein, shall be for

the purpose of reimbursing the Recovery

Fund.

This Order shall become effective upon

filing with the Clerk of the Department of

Business and Professional Regulation.

DONE AND ORDERED this 21st day of June,

200 4.

Appended to the order was the following Notice of Right of

Appeal:

You are hereby notified that mediation is

not available in this matter. Pursuant to

Section 120.569, Florida Statutes, you may

seek review of the above by filing a request

for hearing with the Executive Director of

the Board at 1940 North Monroe Street,

Tallahassee, Florida 32399 - 2202 within

twenty - one (21) days of the filing of this

Order. Upon request, you will receive an

informal hearing pursuant to section

120.57(2), Florida Statu tes. In the

alternative, you may request a formal

hearing pursuant to Section 120.57(1),

Florida Statutes, if there are material

facts in dispute; if you request a formal

hearing, the petition must contain the

information required by Rule 28 - 106.201,

Flor ida Administrative Code, including

specification of the facts which are in

dispute. If you request a hearing, you have

the right to be represented by an attorney

or other qualified representative to take

testimony.

12. On August 12, 2004, Petitioners fi led a Request for

Hearing, complaining that they "should be awarded at least

$3,475.00" to be adequately compensated for all of the repairs

they had to make to their roof as a result of Broward Roofing,

Inc.'s failure to meet its responsibilities.

13. On August 30, 2004, the Board referred the matter to

DOAH "for the assignment of an Administrative Law Judge to

conduct a formal hearing" pursuant to Section 120.57(1), Florida

Statutes.

CONCLUSIONS OF LAW

14. Section 489.140, Florida Statutes, establishe s the

Florida Homeowners' Construction Recovery Fund (Fund).

15. The intent of the Legislature in maintaining the Fund

is explained in Section 489.1401(2), Florida Statutes, which was

added to Chapter 489, Part I, Florida Statutes, effective

July 1, 2004, by Chapter 2004 - 84, Laws of Florida, and provides

as follows:

It is the intent of the Legislature that the

sole purpose of the Florida Homeowners'

Construction Recovery Fund is to compensate

any aggrieved claimant who contracted for

the construction or im provement of the

residence located within this state and who

has obtained a final judgment in any court

of competent jurisdiction, was awarded

restitution by the Construction Industry

Licensing Board, or received an award in

arbitration against a licensee on grounds of

financial mismanagement or misconduct,

abandoning a construction project, or making

a false statement with respect to a project

and arising directly out of any transaction

when the judgment debtor was licensed and

performed any of the activit ies enumerated

under s. 489.129(1)(g), (j) or (k) on the

homeowner's residence.

The "activities enumerated under s. 489.129(1)(g), (j) [and]

(k)" (referenced in Section 489.1401(2), Florida Statutes

(2004)) are as follows:

* * *

(g) Committing mismanagement or misconduct

in the practice of contracting that causes

financial harm to a customer. Financial

mismanagement or misconduct occurs when:

1. Valid liens have been recorded against

the property of a contractor's customer fo r

supplies or services ordered by the

contractor for the customer's job; the

contractor has received funds from the

customer to pay for the supplies or

services; and the contractor has not had the

liens removed from the property, by payment

or by bond, wit hin 75 days after the date of

such liens;

2. The contractor has abandoned a

customer's job and the percentage of

completion is less than the percentage of

the total contract price paid to the

contractor as of the time of abandonment,

unless the contracto r is entitled to retain

such funds under the terms of the contract

or refunds the excess funds within 30 days

after the date the job is abandoned; or

3. The contractor's job has been completed,

and it is shown that the customer has had to

pay more for th e contracted job than the

original contract price, as adjusted for

subsequent change orders, unless such

increase in cost was the result of

circumstances beyond the control of the

contractor, was the result of circumstances

caused by the customer, or was o therwise

permitted by the terms of the contract

between the contractor and the customer.

* * *

(j) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presum ed 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 consecutive days.

(k) Signing a s tatement with respect to a

project or contract falsely indicating that

the work is bonded; falsely indicating that

payment has been made for all subcontracted

work, labor, and materials which results in

a financial loss to the owner, purchaser, or

contract or; or falsely indicating that

workers' compensation and public liability

insurance are provided.

* * *

A contractor's failure to honor a warranty is not among these

"activities enumerated under s. 489.129(1)(g), (j) [and] (k)."

Rather, according to Florida Administrative Code Rule 61G4 -

17.001(1)(m)1, it constitutes " [m]isconduct or incompetency in

the practice of contracting as set forth in Section

489.129(1)(n), F.S."

16. Chapter 2004 - 84, Laws of Florida, effectuated other

ch anges to Chapter 489, Part I, Florida Statutes, in addition to

adding Section 489.1401(2), Florida Statutes. The Legislature

stated its purpose in making these changes (which were effective

July 1, 2004) in the act's preamble, which read as follows:

WHER EAS, the Florida Construction Industries

Recovery Fund was created to reimburse a

person who has suffered monetary damages as

a result of financial mismanagement by a

contractor, and

WHEREAS, the Legislature recognizes that

homeowners have been caused mos t monetary

damages as a result of financial

mismanagement or abandonment by Division I

contractors, and

WHEREAS, the Legislature desires to provide

homeowners with recompense for such monetary

damages, and

WHEREAS, the Legislature recognizes that the

cur rent law places claimants in the position

of having to reestablish damages in order to

comply with the provisions of the statute,

and

WHEREAS, the Legislature desires to make

clear the circumstances under which an award

from the fund shall be made, and

W HEREAS, the Legislature wishes to make

other clarifying changes and improve the

disposition of claims filed, and

WHEREAS, the Legislature recognizes that

there are claims currently pending from

persons who are not homeowners or who have

presented claims f or monetary damages caused

by Division II contractors, and

WHEREAS, the Legislature desires to provide

a mechanism for those claims if eligible, to

be paid.

17. Section 489.141(1), Florida Statutes, as amended by

Chapter 2004 - 84, Laws of Florida, sets f orth the following

eligibility requirements for recovery from the Fund:

Any claimant is eligible to seek recovery

from the recovery fund after having made a

claim and exhausting the limits of any

available bond, cash bond, surety,

guarantee, warranty, lett er of credit, or

policy of insurance, provided that each of

the following conditions is satisfied:

(a) The claimant has received final

judgment in a court of competent

jurisdiction in this state or has received

an award in arbitration or the Construction

Industry Licensing Board has issued a final

order directing the licensee to pay

restitution to the claimant. The board may

waive this requirement if:

1. The claimant is unable to secure a final

judgment against the licensee due to the

death of the lice nsee; or

2. The claimant has sought to have assets

involving the transaction that gave rise to

the claim removed from the bankruptcy

proceedings so that the matter might be

heard in a court of competent jurisdiction

in this state and, after due diligence , the

claimant is precluded by action of the

bankruptcy court from securing a final

judgment against the licensee.

(b) The judgment, award, or restitution is

based upon a violation of s. 489.129(1)(g),

(j) or (k) or s. 713.35.

(c) The violation was com mitted by a

licensee.

(d) The judgment, award, or restitution

order specifies the actual damages suffered

as a consequence of such violation.

(e) The contract was executed and the

violation occurred on or after July 1, 1993,

and provided that:

1. The claimant has caused to be issued a

writ of execution upon such judgment, and

the officer executing the writ has made a

return showing that no personal or real

property of the judgment debtor or licensee

liable to be levied upon in satisfaction of

the judg ment can be found or that the amount

realized on the sale of the judgment

debtor's or licensee's property pursuant to

such execution was insufficient to satisfy

the judgment;

2. If the claimant is unable to comply with

subparagraph 1. for a valid reason to be

determined by the board, the claimant has

made all reasonable searches and inquiries

to ascertain whether the judgment debtor or

licensee is possessed of real or personal

property or other assets subject to being

sold or applied in satisfaction of th e

judgment and by his or her search has

discovered no property or assets or has

discovered property and assets and has taken

all necessary action and proceedings for the

application thereof to the judgment but the

amount thereby realized was insufficient t o

satisfy the judgment; and

3. The claimant has made a diligent

attempt, as defined by board rule, to

collect the restitution awarded by the

board.

(f) A claim for recovery is made within 1

year after the conclusion of any civil,

criminal, or administr ative action or award

in arbitration based on the act. This

paragraph applies to any claim filed with

the board after October 1, 1998.

(g) Any amounts recovered by the claimant

from the judgment debtor or licensee, or

from any other source, have been ap plied to

the damages awarded by the court or the

amount of restitution ordered by the board.

(h) The claimant is not a person who is

precluded by this act from making a claim

for recovery.

Those circumstances where a claimant is "not a person who is

pre cluded by this act from making a claim for recovery," within

the meaning of Section 489.141(1), Florida Statutes, are

described in Section 489.141(2), Florida Statutes, which, as

amended by Chapter 2004 - 84, Laws of Florida, reads as follows:

A claimant is not qualified to make a claim

for recovery from the recovery fund, if:

(a) The claimant is the spouse of the

judgment debtor or licensee or a personal

representative of such spouse;

(b) The claimant is a licensee who acted as

the contractor in the tran saction which is

the subject of the claim;

(c) The claim is based upon a construction

contract in which the licensee was acting

with respect to the property owned or

controlled by the licensee;

(d) The claim is based upon a construction

contract in whi ch the contractor did not

hold a valid and current license at the time

of the construction contract;

(e) The claimant was associated in a

business relationship with the licensee

other than the contract at issue;

(f) The claimant has suffered damages as

the result of making improper payments to a

contractor as defined in part I of chapter

713; or

(g) The claimant has contracted with a

licensee to perform a scope of work

described in s. 489.105(3)(d) - (q).

18. "Payment from the [F]und" must be made in accordance

with the provisions of Section 489.143, Florida Statutes,

subsections (1) and (2) of which, as amended by Chapter 2004 - 84,

Laws of Florida, read as follows:

(1) The fund shall be disbursed as provided

in s. 489.141 on a final order of the board .

(2) Any claimant who meets all of the

conditions prescribed in s. 409.141 may

apply to the board to cause payment to be

made to a claimant from the recovery fund in

an amount equal to the judgment, award, or

restitution order or $25,000, whichever is

l ess, or an amount equal to the unsatisfied

portion of such person's judgment, award, or

restitution order, but only to the extent

and amount of actual damages suffered by the

claimant. Payment from the fund for other

costs related to or pursuant to civil

proceedings such as postjudgment interest,

attorney's fees, court costs, medical

damages, and punitive damages is prohibited.

The recovery fund is not obligated to pay

any judgment, award, or restitution order,

or any portion thereof, which is not

express ly based on one of the grounds for

recovery set forth in s. 489.141. Beginning

January 1, 2005, for each contract entered

after July 1, 2004, payment from the

recovery fund shall be subject to a $50,000

maximum payment.

19. The procedure the Board must follow before it may

issue a final order disposing of a claim for monies from the

Fund is described in Section 489.142, Florida Statutes, which,

as amended by Chapter 2004 - 84, Laws of Florida, provides as

follows:

(1) With respect to actions for recovery

from the recovery fund, the board may

intervene, enter an appearance, file an

answer, defend the action, or take any

action it deems appropriate and may take

recourse through any appropriate method of

review on behalf of the State of Florida.

The board ma y delegate to the department by

rule the authority to close any case when a

claimant is not qualified to make a claim

for recovery from the recovery fund under s.

489.141(2); when after notice the claimant

has failed to provide documentation in

support of the claim as required by the

board; or when the licensee has reached the

aggregate limit.

(2) Notwithstanding any other provision of

law, the board shall cause a notice of

hearing to be served 14 days in advance of

the hearing on the claimant and on the

licensee whose license is subject to

suspension by s. 489.143. Each notice shall

inform the recipient of any administrative

hearing or judicial review that is available

under s. 120.569, s. 120.57, or s. 120.68;

shall indicate the procedure that must be

f ollowed to obtain the hearing or judicial

review; and shall state the time limits that

apply. Service of the notice on the

licensee shall be made in accordance with s.

455.275. Service of the notice on the

claimant shall be by regular United States

mail at the address provided on the claim.

The service of notice in accordance with

this section is complete upon expiration of

14 days after deposit in the United States

mail. Proof of service of a notice shall be

made by entry in the records of the

departme nt that the notice was given. The

entry shall be admissible in judicial and

administrative proceedings of this state and

shall constitute sufficient proof that

notice was given.

(3) Notwithstanding any other provision of

law, board hearings on claims sh all be

conducted in accordance with ss. 120.569 and

120.57(2). All claim hearings shall be

conducted at the board's regular meeting at

the place, date, and time published. Orders

of the board denying or awarding funds to a

claimant constitute final order s that may be

appealed in accordance with s. 120.68.

Orders awarding or denying claims shall be

served in the same manner as notices of

hearing in this section.

20. In the instant case, Petitioners filed their claim

application with the Board on Novembe r 17, 1998, requesting an

award of $1,025.00 based on Mr. Levinsky's "refus[al] to fix

[their] new roof that was leaking and [his] totally ignor[ing]

[their] 10 year warranty." Petitioners did not attach to their

application either a "Court certified copy of [a] Civil

Judgment" or a "Final Order of the Construction Industry

Licensing Board directing restitution be paid," as required by

Florida Administrative Code Rule 61G4 - 21.003(2). 2 Indeed, no

such judgment or order had yet been rendered. Consequently,

Petitioner's application lay dormant until after the Board had

rendered its March 2004 Final Order Approving Recommended Order

of Disciplinary Action by Local Enforcement Body, which, among

other things, directed Mr. Levinsky to "pay restitution in the

am ount of $3,700.00 to [Petitioners]."

21. After due notice, the Board met on June 10, 2004, to

consider Petitioners' claim application. It determined at the

meeting that Petitioners should be awarded $1,025.00 from the

Fund, the amount they had requested in their application. A

written order making such an award was filed with the agency

clerk on July 29, 2004. The written order contained the

following "Notice of Right to Appeal":

You are hereby notified that mediation is

not available in this matter. P ursuant to

Section 120.569, Florida Statutes, you may

seek review of the above by filing a request

for hearing with the Executive Director of

the Board at 1940 North Monroe Street,

Tallahassee, Florida 32399 - 2202 within

twenty - one (21) days of the filing of this

Order. Upon request, you will receive an

informal hearing pursuant to section

120.57(2), Florida Statutes. In the

alternative, you may request a formal

hearing pursuant to Section 120.57(1),

Florida Statutes, if there are material

facts in disput e; if you request a formal

hearing, the petition must contain the

information required by Rule 28 - 106.201,

Florida Administrative Code, including

specification of the facts which are in

dispute. If you request a hearing, you have

the right to be represent ed by an attorney

or other qualified representative to take

testimony.

By letter dated August 10, 2004, Petitioners advised the Board

that they believed that their award should be "at least

$3,475.00," not $1,025.00. The Board, in turn, by letter dated

A ugust 27, 2004, referred the matter to DOAH "for the assignment

of an Administrative Law Judge to conduct a formal hearing"

pursuant to Section 120.57(1), Florida Statutes.

22. The referral was made in error. The Board had already

acted on Petitioners' c laim pursuant to Section 120.57(2),

Florida Statutes, 3 and awarded them $1,025.00 from the Fund.

Pursuant to the clear and unambiguous language of Section

489.142(3), Florida Statutes, which was added to the statute

effective July 1, 2004, the Board's wri tten order making this

award (which was filed with the agency clerk on July 29, 2004)

constituted a "final order" subject, not to further

administrative action, but to judicial review pursuant to

Section 120.68, Florida Statutes. See Kalbach v. Department of

Health and Rehabilitative Services , 563 So. 2d 809, 810 - 11 (Fla.

2d DCA 1990). Moreover, this statutory language specifies that

all hearings on claims for monies from the Fund " shall " be

conducted by the Board (at a regular Board meeting) in

accordanc e with Section 120.57 (2 ). No mention is made of

Section 120.57 (1) (which, as noted in Zarifian v. Department of

State, Div. of Licensing , 552 So. 2d 267 (Fla. 2d DCA 1989),

"provides for a formal administrative hearing [conducted by a

DOAH administrative law judge] when a disputed issue of material

fact is involved"). Therefore, even if the Board had not

already taken action on Petitioners' claim pursuant to Section

120.57(2), it would have been inconsistent with the requirements

of Section 489.142 for th e Board to have referred the matter to

DOAH for the assignment of an administrative law judge to

conduct a Section 120.57(1) hearing on the matter, regardless of

whether there were disputed issues of material fact that needed

to be resolved. See PW Ventur es, Inc. v. Nichols , 533 So. 2d

281, 283 (Fla. 1988)("The express mention of one thing implies

the exclusion of another."); McKendry v. State , 641 So. 2d 45,

46 (Fla. 1994)(" [A] specific statute covering a particular

subject area always controls over a sta tute covering the same

and other subjects in more general terms. ") 4 ; Gretz v. Florida

Unemployment Appeals Commission , 572 So. 2d 1384, 1386 (Fla.

1991) ("Section 120.57(1)(b) is a general statute dealing with

appeals from administrative proceedings. It se ts a ceiling

beyond which no agency may charge for preparation of a

transcript. Where a more specific statute sets a fee for

preparation of a transcript that is within that ceiling, the

more specific statute controls.") ; Alsop v. Pierce , 19 So. 2d

799, 80 5 - 06 (Fla. 1944) (" When the controlling law directs how a

thing shall be done that is, in effect, a prohibition against

its being done in any other way."); Sun Coast International Inc.

v. Department of Business Regulation, Division of Florida Land

Sales, Co ndominiums and Mobile Homes , 596 So. 2d 1118, 1121

(Fla. 1st DCA 1992)(" [A] legislative direction as to how a thing

shall be done is, in effect, a prohibition against its being

done in any other way.); and Fiat Motors of North America, Inc.

v. Calvin , 356 So. 2d 908, 909 (Fla. 1st DCA

1978)("Administrative agencies are creatures of statute and have

only such powers as statutes confer.") .

23. That Petitioners' claim had been filed, and had become

ripe for resolution on the merits, before July 1, 2004, the

e ffective date of the addition of the statutory language now

found in Section 489.142(3), Florida Statutes , did not provide

the Board with a valid basis to refer the claim to DOAH for a

Section 120.57(1) hearing. This is because the addition of this

subsec tion to Section 489.142 merely changed the means and

methods by which claims for monies from the Fund were to be

administratively resolved. In the absence of any language in

Chapter 2004 - 84, Laws of Florida, clearly and unambiguously

providing otherwise, this mere change in procedure applied to

all claims, like Petitioners', that were pending (that is, not

finally resolved 5 ) as of July 1, 2004. See Gupton v. Village Key

& Saw Shop, Inc. , 656 So. 2d 475, 477 (Fla. 1995)("Statutes that

relate only to proced ure or remedy generally apply to all

pending cases."); Young v. Altenhaus , 472 So. 2d 1152, 1154

(Fla. 1985)("[S]tatutes which relate only to the procedure or

remedy are generally held applicable to all pending cases.");

Hill v. Division of Retirement , 687 So. 2d 1376, 1377 (Fla. 1st

DCA 1997)("Although the State Retirement Commission's order was

entered before revisions to the Administrative Procedure Act

took effect on October 1, 1996, the revised Act applies to the

extent it changes only the means and me thods by which an

administrative determination is rendered.")(internal quotation

marks omitted) ; Turro v. Department of Health and Rehabilitative

Services , 458 So. 2d 345, 346 (Fla. 1st DCA 1984)("In part

because Rule 10 - 5.11(23) did not become formally ef fective until

after commencement of the hearing on the applications, Community

argues that it was improper to apply the standards stated in the

rule to their application. However, the rule prescribes an

evidentiary standard and is thus procedural in natur e. As such

it became applicable and controlling on its effective date.");

and Batch v. State , 405 So. 2d 302, 304 (Fla. 4th DCA

1981)("This section became effective on October 1, 1978, which

was after appellant's criminal act but before his trial and

sent encing. Nevertheless, the section is procedural and such

statutory changes apply to pending cases.").

24. In view of the foregoing, the undersigned must return

the instant matter to the Board, with the recommendation that

the Board find that Petitioners are not entitled to any further

administrative consideration of the merits of their claim;

however, inasmuch as the "Notice of Right to Appeal" appended to

the Board's final order awarding them $1,025.00 from the Fund

contained erroneous information regard ing what Petitioners

needed to do to seek review of the order , the Board should allow

Petitioners to request that the order be vacated and re - rendered

so that Petitioners will have the opportunity to timely appeal

the Board's award in accordance with Secti on 120.68, Florida

Statutes, which provides, in pertinent part, that "j udicial

review [of final agency action] shall be sought in the appellate

district where the agency maintains its headquarters or where a

party resides . . . by filing a notice of appeal or petition for

review in accordance with the Florida Rules of Appellate

Procedure within 30 days after the rendition of the order being

appealed. " See Gundlah v. Moore , 831 So. 2d 780, 781 (Fla.

2002); Ney v. Unemployment Appeals Commission , 778 So. 2d 509

(Fla. 4th DCA 2001); Department of Corrections v. Saulter , 742

So. 2d 368, 370 (Fla. 1st DCA 1999); Etienne v. Simco Recycling

Corp. , 721 So. 2d 399, 400 (Fla. 3d DCA 1998); National

Healthcorp, L.P. v. Department of Health and Rehabilitative

Services , 560 So. 2d 1184, 1185 (Fla. 1st DCA 1989); and New

Washington Heights Community Development Conference v.

Department of Community Affairs , 515 So. 2d 328, 329 (Fla. 3d

DCA 1987).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board issue an order dismissing

Petitioners' Request for Hearing challenging the Board's order,

rendered July 29, 2004, disposing of their claim for monies from

the Fund, but allowing them, if they so desire, to requ est that

that order be vacated and re - rendered so that they will have the

opportunity to file a timely appeal in accordance with Section

120.68, Florida Statutes.

DONE AND ENTERED this 28th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

__ _________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(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 28th day of December, 2004.

ENDNOTES

1 The "Board Order" referred to in the affidavit was an order,

not of the Board, but of the Broward County Central Examining

Board of Building Construction Trades.

2 Florida Ad ministrative Code Rule 61G4 - 21.003(2) then provided,

as it still does, as follows:

Claimant shall complete the claim form and

forward with documentation attached to the

board: a certified copy of the Civil

Judgment or Final Order of the Construction

Indu stry Licensing Board; a copy of any

contract between the claimant and the

contractor; copies of applicable bonds,

sureties, guarantees, warranties, letters of

credit and/or policies of insurance;

certified copies of levy and execution

documents, and proof of all efforts and

inability to collect the judgment or

restitution order.

3 The first sentence of the Board's written order disposing of

Petitioners' claim read:

THIS MATTER came before the Construction

Industries Recovery Fund Committee and

Construc tion Industry Licensing Board (the

"Board") pursuant to sections 120.57(2) and

489.143, Florida Statutes (2003) as well as

rule 61G4 - 21.004, Florida Administrative

Code, on June 10, 2004, in Coral Gables,

Florida, for consideration of a claim for

restituti on from the Construction Industries

Recovery Fund (the "Recovery Fund").

(emphasis supplied.)

4 This rule of statutory construction aside, the prefatory

language of Section 489.142(3), Florida Statutes, unmistakably

conveys the Legislature's intent th at, "[n]otwithstanding any

other provision of law" in Chapter 120, Florida Statutes, or

elsewhere, all hearings on claims for monies from the Fund be

conducted by the Board in accordance with Section 120.57(2),

Florida Statutes, whether or not there are di sputed issues of

material fact.

5 " Final agency action may take the form of an order whether

'affirmative, negative, injunctive, or declaratory' in tenor. A

final agency order may articulate jurisdictional boundaries;

require a party to cease or desist; grant, suspend, or revoke a

license; impose an administrative penalty; deny an evidentiary

hearing; or deny substantive relief of various kinds. A final

order may or may not dismiss a petition for hearing or some

other pleading. Its finality depends on whether it has brought

the administrative adjudicative process to a close." Hill v.

Division of Retirement , 687 So. 2d 1376, 1377 (Fla. 1st DCA

1997)(citation omitted.) "An agency has not rendered a final

order until it is "filed with the agency clerk." Id. ; see also

Gallo v. Florida Commission on Human Relations , 867 So. 2d 1273

(Fla. 1st DCA 2004)("[T]he Court has determined that, because

the order on appeal has not been filed with the agency clerk, it

has not been rendered."); and Alvarez v. Florida D epartment of

Children And Families , 863 So. 2d 1258, 1259 (Fla. 1st DCA

2004)("[T]he Court has determined that the order on appeal is

not final. Although the order on appeal authorizes the

Department to sanction the appellant for an intentional program

vi olation, no formal order disqualifying the appellant from

receipt of benefits has been entered. Thus, the administrative

adjudicative process does not appear to have been brought to a

close."). As of July 1, 2004, Petitioners' claim had not been

finally resolved. Although the Board had met on June 10, 2004,

and determined that Petitioners' should be awarded $1,025.00

from the Fund, it was not until July 29, 2004, that a written

order memorializing that determination was filed with the agency

clerk.

COPIES FURNISHED :

Marlene Grubb

10551 Northwest 21st Court

Sunrise, Florida 33322

Adrie nne C. Rodgers, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 1023

Norman Levinsky

2600 Hammondville Road, Suite 41

Pompano Beach, Florida 33069

Leon Biegalski, General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1023

Timothy Vaccaro, Director

Construction Industry Licensing Board

Department of Business and Professional Regulation

1940 North Monroe Street

Tall ahassee, Florida 32399 - 1023

N OTICE OF RIGHT TO SU BMIT 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 t hat

will issue the Final Order in this case.