06-004175 Department Of Business And Professional Regulation vs. Paul Marchese Jr., D/B/A Prima Construction Status: Closed Recommended Order on Tuesday, May 8, 2007.

Summary: Respondent failed to satisfy the civil judgment against him that was related to the practice of residential contracting. Recommend the maximum fine of $5,000, since this was not Respondent`s first violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Ca se No. 06 - 4175

)

PAUL MARCHESE , JR., d/b/a PRIMA )

CONSTRUCTION , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Carolyn S. Holifield, held a formal hearing in the above - styled

case on January 9, 2007, in Sarasota, Flor ida.

APPEARANCES

For Petitioner: P. Brian Coats, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 323 0 9

For Respondent: R. Jackson McGill, Esquire

Law Office s of R . Jackson McGill

2033 Main Street, Suite 202

Sarasota, Florida 34237

STATEMENT OF THE ISSUE S

The issues in this case are whether disciplinary action

should be taken against Respondent , Paul Marchese, Jr., d/b/a

Prima Construction, for violat io n of Subsection 489.129(1)(q),

Florida Statutes (2006) , as alleged in the Administrative

Complaint ; and, if so, what disciplinary action should be

imposed on his license to practice contracting.

PRELIMINARY STATEMENT

On June 8, 2006, Petitioner, the Depart ment of Business and

Professional Regulation (Petitioner) , Construction Industry

Licensing Board, filed an A dministrative C omplaint in DBPR Case

No. 2006 - 001485, alleging that Respondent , Paul Marchese, Jr.,

d/b/a Prima Construction, violated Subsection 48 9.129(1)(q),

Florida Statutes (2006) , by 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.

Respondent disputed the allegation in the A dministrative

C omplaint and elected to have a formal administrative hearing.

On or about October 27, 2006, Petitioner forwarded the case to

the Division of Administrative Hearings to conduct a hearing

pursuant to Section 120.57, Florida Statutes (2006) .

At hearing, Petitioner presented the testimony of three

witnesses: Susan York, Dan Moody, and Respondent , Paul

Marchese , Jr. Petitioner ' s Exhibits 1 through 8 were offered

and admitted into evidence. Respondent cross - examined

Petitioner ' s three witnesses and offered no exhibits into

evidence.

The Transcript of the hearing was filed on January 26,

2007. Both parties filed P roposed R ecommended O rders which have

been considered in preparation of this Recommended O rder.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses

presented and the entire record in this proceeding, the

following facts are found:

1. At all times relevant to this proceeding , Respondent

was a certified residential contractor, having been issued

L icense No. CRC057007 by the Florida Construction Industry

Licensing Board (Board).

2. At all times relevant to this proceeding , Respondent ,

Paul Marchese, Jr., d/b/a Prima Construction, has been doing

business as Prima Construction.

3. AB C Supply Company , Inc. (ABC Supply Company), operates

as a roofing supply distributor in the State of Florida.

4. Respondent completed and signed a credit application

with ABC Supply Company .

5. The credit application required the applicant t o

provide the following information: t ype of business ownership;

a ddress of business ownership; o fficers of business ownership;

and c redit references.

6. The credit application includes, if applicable, a space

to list the applicant ' s state contractor li cense number.

7. The credit application includes a personal guaranty

that must be completed if the business ownership has less than

$2 million in annual sales, is less than two years old, has less

than ten employees, or is a partnership or proprietorshi p. If

the personal guaranty section is completed and signed, the

guarantor then becomes responsible and personally liable for any

debts incurred by the business ownership.

8. Respondent listed the applicant for the credit

application with ABC Supply Co mpany as " P & C Realty (Pri ma)"

and signed the application as the president of the co mpany .

Respondent listed his certified residential contractor L icense

No . CRC057007 on the credit application. P & C Realty is owned

by Respondent and his wife .

9. On o r about January 18, 2002, Petitioner signed the ABC

Supply Company credit application as president of " P & C Realty

(Prima). " In addition to signing as the applicant, Petitioner

signed the " guaranty " portion of the application , in which he

agreed to serve as " guarantor " of any indebtedness of the buyer

to ABC Supply Co mpany .

10. ABC Supply Co mpany approved the credit application ,

which allowed P & C Realty to purchase roofing materials from

ABC Supply Company .

11. From February 2002 to April 2002, P & C Realty

purchased various roofing materials from ABC Supply Co mpany .

The materials were used in the repair of houses owned by P & C

Realty, and the houses were subsequently sold by P & C Realty.

12. P & C Realty failed to pay for the roofing materials

that were purchased between February 2002 to April 2002, and the

account became past due.

13. ABC Supply Company filed a civil lawsuit against

P & C Realty and Respondent in the c ounty c ourt in Hillsborough

County, Florida.

14. On September 13, 2005, H illsborough County entered a

final judgment in favor of ABC Supply Company and against P & C

Realty and Respondent , jointly and several , in the amount of

$6,319.68 for P & C Realty and Respondent ' s failure to pay for

roofing materials. 1/

15. Respondent d id not appeal the final judgment , but

failed to satisfy the final judgment within 90 days. Moreover,

as of the date of this proceeding, Respondent had not satisfied

this judgment.

16. The total investigative costs of this case to the

Board , excluding cost s associated with an attorney ' s time, for

DBPR Case No. 2006 - 001485 , was $288.68 .

17. On October 28, 2002, Petitioner filed a Final Order in

a prior disciplinary case against Respondent in DBPR Case

No. 2000 - 08685. That Final Order adopted and incorporat ed by

reference the allegations in the Administrative Complaint. The

Administrative Complaint alleged Petitioner violated the

Standard Building Code of Sarasota County by first performing

construction work without first obtaining the required building

per mit from the Sarasota Building Department , and , as a result

thereof, the Sarasota County General Contractors Licensing and

Examining Board revoked Respondent ' s privileges to pull permits

in Sarasota County, Florida. Based on the foregoing, the Final

Order in DBPR Case. No. 2000 - 08685 found Respondent guilty of

violating Subsection 489.129(1)(h), Florida Statutes (2006) , by

being disciplined by any municipality or county for any act or

violation of this part. Petitioner imposed a $2,5 00.00 fine and

$165.51 in costs on Respondent in the case.

18. On December 11, 2001, Petitioner filed a Final Order

in a prior disciplinary case against Respondent in DBPR Case

Nos. 2000 - 02105 and 2000 - 06442. The F inal O rder reflected that

the case was resolved by means of a S ettlement S tipulation in

which Respondent agreed to pay a $5,0 00.00 fine, pay costs of

$436.42, and , in the future , not violate the provisions of

Chapters 455 and 489, Florida Statutes (2006) , or the rules

promulgated pursuant thereto. In the Settlement S tipulation

related to the foregoing cases, Respondent neither admitted nor

denied the allegations in the Administrative Complaints. 2/

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of thi s

proceeding pursuant to Section 120.57, Florida Statutes (2006) .

20. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Section 20.165 and

Chapters 455 and 489, Florida Statutes (2006) .

21. Pursuant to Section 4 89.129, Florida Statutes (2006) ,

the Board is empowered to revoke, suspend , or otherwise

discipline the license of a contractor who is found guilty of

any of the grounds enumerated in Subsection 489.129(1), Florida

Statutes (2006) .

22. Here, the Board seek s to discipline Respondent ' s

residential contractor ' s license based on the allegation that he

is guilty of the violation of Subsection 489.129(1)(q), Florida

Statutes (2006) , which provides, in pertinent part, the

following:

(1) The b oard 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 ,

registration or certificate of authority ,

require financial restitution t o a consumer

for financial harm directly related to a

violation of a provision of this part ,

impose an administrative fine not to exceed

$10,000 per violation, require continuing

education, or assess costs associated with

investigation and prosecution, if the

contractor . . . or business organization

for which the contractor is a primary

qualifying agent . . . is found guilty of

any of the following acts:

* * *

(q) 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.

23. Subsection 489.105, Florida Statutes (2006), 3 / defines

various terms used in Part I, Chapter 489, Florida Statutes

(2 006) , and provides , in pertinent part, the following:

(3) " Contractor " means the person who is

qualified for, and shall only be responsible

for, the project contracted for and means,

except as exempted in this part, the person

who, for compensation, under takes to,

submits a bid to, or does himself or herself

or by others construct, repair, alter,

remodel, add to, demolish, subtract from, or

improve any building or structure, including

related improvements to real estate, for

others or for resale to others; and whose

job scope is substantially similar to the

job scope described in one of the subsequent

paragraphs of this subsection.

* * *

(c) " Residential contractor " means a

contractor whose services are limited to

construction, remodeling, repair, or

improvement of one - family, two - family, or

three - family residences not exceeding two

habitable stories above no more than one

uninhabitable story and accessory use

structures in connection therewith.

24. Petitioner has the burden of proving by clear a nd

convincing evidence the allegations against Respondent.

§ 120.57(1)(j), Fla . Stat . (2006) ; Department of Banking and

Finance v. Osborne Stern and Co ., 670 So. 2d 932 (Fla. 1996);

and Ferris v. Turlington , 510 So. 2 d. 292 (Fla. 1987).

25. Petitioner ha s proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(q), Florida

Statutes (2006) .

26. Subsection 489.129(1)(q), Florida Statutes (2006) ,

provides that a licensee may be disciplined by the Board, if the

licensee is found guilty of failing to satisfy within a

reasonable time, the terms of a civil judgment obtained against

the license relating to the practice of the licensee ' s

profession. Reasonable time has been defined by Board rule as

90 days following the entry of a civ il judgment that is not

appealed. See 2005 version of Fla. Admin. Code R. 61G4 -

17.001(1)(q). 4/

27. The evidence established that it is undisputed that a

civil judgment was entered against Respondent and that

Respondent failed to satisfy that civil judgmen t within a

reasonable time. The record establishes by clear and convincing

evidence that ABC Supply Company obtained a civil judgment

against Respondent for his failure to pay for roofing materials

purchased on credit from ABC Supply Company . Moreover, i t was

established that the civil judgment was never appealed or

satisfied by Respondent. The remaining issue in this case is

whether the civil judgment relates to the licensee ' s profession.

28. The civil judgment in this case relates to

Respondent ' s lic ensed profession. Respondent is licensed with

Petitioner as a certified residential contractor as that term is

defined in Subsection 489.105(3)(c), Florida Statutes (2006) ,

which is quoted in paragraph 23 above. ( Also see d efinition of

" contractor " quote d in the same paragraph above . )

29. The record establishes by clear and convincing

evidence that Respondent filled out the credit application with

ABC Supply Co mpany and included in the credit application

Respondent ' s certified residential contractor lice nse number and

Respondent ' s contracting company name, Prima, in parenthesis

next to P & C Realty as the business organization applying for

the line of credit to purchase roofing supplies. In addition,

Respondent , acting as president and co - owner of P & C Realty ,

purchased roofing supplies from ABC Supply Company and used

those roofing materials to repair houses owned by P & C Realty

that were in turn re - sold. Therefore, by the definition of

" contractor " under Subsection 489.105(3), Florida Statutes

(2006) , Respondent was acting in the capacity of his licensed

profession because Respondent , as the president and owner of

P & C Realty, utilized the roofing materials purchased under the

line of credit with ABC Supply Company to repair buildings, in

this case r esidential houses, for resale to others.

30. Respondent contends that the indebtedness which

resulted in the civil judgment was related to his role as a

co - owner of a real estate company and not to his licensure as a

residential contractor. Notwithstandin g Respondent's assertion,

having listed the construction company as an applicant and his

contractor's license number, Respondent's argument that the

civil judgment against him for debts incurred for the purchase

of roofing supplies is not related to contra cting , is not

persuasive. When viewed in light of the evidence, the approved

credit application and the materials purchased pursuant thereto,

the civil judgment obtained against Respondent was related to

the practice of residential contracting. The fact that he may

have been wearing multiple hats (i.e., acting as owner of a real

estate company and as residential contractor) does not preclude

the conclusion that the civil judgment for the indebtedness for

roofing materials relates to the practice of contra cting. See

White v. Department of Business and Professional Regulation , 715

So. 2d. 1130 (Fla. 5th DCA 1998) .

31. Respondent is subject to disciplinary action by the

Board pursuant to Sections 455.227 and 489.129, Florida Statutes

(2006) . The disciplinar y action under these statutes includes

placing the license on probation, reprimanding the licensee,

revoking, suspending, denying the issuance or renewal of the

certificate or registration, requiring financial restitution to

the consumer, imposing an admin istrative fine not to exceed

$10,0 00.00 per violation, requiring continuing education , and

assessing costs associated with investigation and prosecution.

32. Subsection 455.2273(5), Florida Statutes (2006) ,

states the A dministrative L aw J udge, in recomme nding penalties

in any recommended order, must follow the penalty guidelines

established by the board or department and must state in writing

the mitigating or aggravating circumstances upon which the

recommended penalty is based.

33. Florida Administrativ e Code Rule 61G4 - 17.002 provides,

in pertinent part, the following:

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

l icensee ' 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 danger to the public.

(4) The number of complaints filed against

the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or

otherwise, to the licensee ' s customer.

(7) The deterrent effect of the penalty

imposed.

(8) The effect of the pen alty upon the

licensee ' s livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

34. Pursuant to Florida Administrative Code Rule

61G4 - 17.003, a repeat violation is any violation on which

disc iplinary action is being taken where the same licensee had

previous disciplinary action taken against him regardless of

whether the violations in the present and prior disciplinary

actions are of the same or different subsections of the

disciplinary statut es. Additionally, if the repeat violation is

the very same type of violation as the first violation, the

penalty set out above will generally be increased over what is

otherwise shown for repeat violations in the above list.

35. The 2005 version of Florid a Administrative Code

Rule 61G4 - 17.001 provides, in pertinent part, the following

guidelines that are pertinent to this proceeding:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subjec t to the

other provisions of this Chapter.

* * *

(q) Section 489.129(1)(q) F.S.: Failure to

satisfy a civil judgment obtained against

the licensee or the business organization

qualified by the licensee within a

reasonable time. First violation , $1,000 to

$3,000 fine and/or proof of satisfaction of

civil judgment; repeat violation, $3,000 to

$5,000 fine and/or proof of satisfaction of

civil judgment, and suspension or

revocation. [5/] For purposes of this section

" reasonable time " means ninety ( 90) days

following the entry of a civil judgment that

is not appealed. [6/] The Board will consider

a mutually agreed upon payment plan as

satisfaction of such judgment, so long as

the payments are current.

36. The undisputed evidence established that Re spondent

had been previously disciplined for violations under

Chapter 489, Florida Statutes (2006) ; therefore , the penalty

guidelines that should be used are for the repeat violation.

RECOMMENDATION

Based on the foregoing F indings of F act and C onclusions of

L aw, it is

RECOMMENDED that a f inal o rder be rendered as follows:

1. Finding Respondent guilty of having violated Subsection

489.129(1)(q), Florida Statutes (2006) , and imposing as a

penalty an administrative fine in the amount of $5,0 00.00 , proof

of satisfaction of the civil judgment for Case No. 2003 - 7188 - CC,

and suspension of Respondent ' s certified residential contractor

license until the civil judgment is satisfied; and

2. Requiring Respondent to pay Petitioner ' s costs of

investigation and prosec ution, excluding costs associated with

an a ttorney ' s time , in the amount of $288.68.

DONE AND ENT ERED this 8 th day of May , 2007 , in Tallahassee,

Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Divisi on 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 8 th day of May , 2007 .

ENDNOTES

1/ Case No. 2003 - 7188 - CC, Thirteenth Judicial Circuit in and for

Hillsborough County, Florida.

2 / The Administrative Complaint in DBPR Case No. 2000 - 2105

alleged that on or about August 3, 1999, Respondent failed to

dis close in a Certificate of Change of Status Application to the

Board that his license as a contractor in the State of Maryland

had been suspended from June 25 through July 24, 1990, and

signed the A ffidavit in the Certificat e of Change of Status

A pplication attesting to the truth and accuracy of the

statements. The Administrative Complaint charged that as a

result of the alleged conduct, Respondent had committed conduct

described in Subsection 489.129(1), Florida Statutes(1997), for

which disciplinary actio n may be initiated by the Board (i.e. ,

obtaining a certificate, registration, or certificate of

authority by fraud or misrepresentation (Subsection

489.129(1)(a), Florida Statutes (1997); committing mismanagement

or misconduct in the practice of contractin g (Subsection

489.129(1)(n), Florida Statutes (1997); and being disciplined by

any municipality or county for an act or violation of this

section (Subsection 489.129(1)(i), Florida Statutes (1997)).

The Administrative Complaint in DBPR Case No. 2000 - 6442 alleged

that in 1997, Respondent entered into a contract with certain

individuals to perform repair work at a home in Englewood,

Florida; that on or about July 2000, the Sarasota General

Contractors Licensing and Examining Board found Respondent in

violat ion of Sarasota County o rdinances and suspended his

permitting privileges for 90 days, except for work on the home

noted above. Based on these allegations, the Board charged that

Respondent had been disciplined by a municipality or county for

an act or vi olation in Section 489.129, Florida Statutes (1999),

and was, therefore, subject to disciplinary action under

Subsection 489.129(1)(h), Florida Statutes (1999).

3 / These definitions are the same ones in place at the time

relevant to this proceeding.

4/ In June 2006, when the subject Administrative Complaint was

filed, the 2005 version of Florida Administrative Code Rule

61G4 - 17.001(1)(q) was in effect. Thus, that version of the rule

is applicable in this case.

Florida Administrative Code Rule 61G4 - 17.001(1)(q), as amended

on November 2, 2006, changed the definition of "reasonable time"

from 90 days to "sixty (60) days following entry of a civil

judgment that is not appealed."

5/ Subsequently, this provision was amended on November 2, 2006,

to esta blish a maximum fine of $10,000 and suspension or

revocation of license. See Endnote 4.

6/ See comment in Endnote 4.

COPIES FURNISHED :

P. Brian Coats, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 4 2

Tallahassee, Florida 32309

R. Jackson McGill, Esquire

Law Offices of R. Jackson McGill

2033 Main Street, Suite 202

Sarasota, Florida 34237

G.W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professiona l Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT 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 that

will issue the Final Order in thi s case.