07-000052PL Department Of Business And Professional Regulation vs. Ralph N. Battaglia, Intercontinental Construction Corporation, Inc. Status: Closed Recommended Order on Tuesday, May 8, 2007.

Summary: Respondent is guilty of failing to include recovery fund language in the contract and of engaging in financial mismanagement by failing to have a lien on the homeowner`s property timely removed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY )

LICENSING BOARD , )

)

Petitioner, )

)

vs. ) Case No. 07 - 0052PL

)

RALPH BATTAGLIA , )

)

Respondent. )

____ ______________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

March 7, 2007, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeffrey J. Kelly, Esquire

Department of Business and

Prof e ssional Regulat ion

1940 North Monroe Street

Tallahassee, Florida 323 99 - 2202

For Respondent: Ralph N. Battaglia, pro se

9284 Vista Del Lago Drive, Apt. 34 - A

Boca Raton, Florida 33428

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Amended Administrative Complaint issued against him and, if so,

what disciplinary action should be taken .

PRELIMINARY STATEMENT

Petitioner has issued a four - count Amended Administrative

Complaint against Respondent alleging that , in his capacity as

the primary qualifying agent for Int ercontinental Construction

Corporation (ICC), he engaged in disciplinable wrongdoing in

connection with a residential construction project un dertaken by

ICC pursuant to a contract with Michael Skiera and his wife .

Count I alleges Respondent " violated Section 489.129(1)(i),

Florida Statutes , . . . by having violated [S]ectio n

489.14 25 (1), Florida Statutes " ( requiring that residential

construct ion contracts in excess of $2,500.00 "contain a written

statement explaining the consumer's rights under [what was then

known as] the [Construction Industries] [R] ecovery [F] und " ) .

Count II alleges that Respondent committed "mismanagement or

misconduct in the practice of contracting that cause [d]

financial harm to a customer" in violation of Section

489.129(1)(g)1 . , Florida Statutes. Count III alleges that

Respondent committed "mismanagement or misconduct in the

practice of contracting that cause [d] finan cial harm to a

customer" in violation of Section 489.129(1)(g)3 . , Florida

Sta tutes. Count IV alleges that "R espondent violated Section

489.129(1)(m), Florida Statutes, by committing incompetency or

mismanagement in the practice of contracting."

By filin g with Petitioner a completed "E lection of Rights"

form (with an attachment), Respondent requested a "hearing

involving disputed issues of material fact before an

administrative law judge with the Division of Administrative

Hearings, pursuant to Section 12 0.57(1), Florida Statutes." On

January 4, 2007 , the matter was referred to DOAH.

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

March 7, 2007. At the outset of the hearing, on the record, the

parties stipulated to the following facts:

1. Res pondent is now, and was at all

material times, licensed as a certified

general contractor with Petitioner,

possessing license number 041817.

2. Respondent is now, and was at all

material times, the licensed qualifier for

Intercontinental Construction Cor poration.

3. The Department's investigative costs for

this case are $428.95.

4. Respondent's license is currently

suspended and he has been disciplined

previously in other cases.

5. Chris Stasinos was at all material times

a corporate officer (vice - p resident) of

Intercontinental Construction Corporation .

6. The original contract price for the home

that Intercontinental Construction

Corporation agreed to build for the Skieras

was $366, 0 8 0 .00 .

7. There were subsequent change orders that

increased t he contract price for the

construction of the home by $12,206.20 to

$378,286.20 .

8. The Skieras paid Intercontinental

Construction Corporation a total of

$304,766.20 for work on the home.

9. There were eight valid claims of lien

filed against the prope rty by subcontractors

for work that was within the scope of the

contract (including change orders).

10 . The Skieras paid a total of $57,316.62

to satisfy those liens.

11 . Intercontinental Construction

Corporation filed for bankruptcy on July 24,

2001.

12 . The Skieras were listed as creditors in

the bankruptcy filing, as were the following

subcontractors who performed work on the

home Intercontinental Construction

Corporation contracted to build fo r the

Skieras: American Stairs; L & W Supply

Corp. d/b /a Seacoast Supply ; Astro Air; B.T.

Glass & Mirror, Inc. ; Boca Raton Decorating

Center Company ; Gulf Stream Lumber Company ;

and Waste Management of Palm Beach .

13 . The Certificate of Occupancy for the

home that Intercontinental Construction

Corporation c ontracted to build for the

Skieras was issued on October 4, 2001.

14 . On September 20, 2001, the Skieras

received a check in the amount of $10,000 .00

from Andover Construction, Inc. Chris

Stasinos was, at that time, the licensed

qualifier for Andover Co nstruction, Inc.

Two witnesses , Michael Skiera and Responde nt, testified at the

hearing. In addition to Mr. Skiera's and Respondent's

testimony , 15 exhibits, Petitioner's Exhibits A through O, were

offered and received into evidence.

The deadline for th e filing of proposed recommended orders

was set at 3 0 days from the date of the filing with DOAH of the

hearing transcript.

The hearing T ranscript (consisting of one volume) was filed

with DOAH on March 23 , 2007.

Petitioner filed its Proposed Recommended Order on

April 23, 2007. To date, Respondent has not filed any post -

hearing submittal .

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made to supplement

and clarify the facts to wh ich the parties stipulated at the

outset of the final hearing (Parties' Stipulations) 2 :

1. The contract referenced in the Parties' Stipulations

(Building Contract) was signed by Mr. Stasinos (on behalf of

ICC) and Mr. Skiera (on behalf o f himself and his wife) on

June 29, 2000.

2. The home that ICC agreed to build for the Skieras

(Skiera Residence) was described in the Building Contract as a

"[c]ustom two - story residence with detached garage and riding

cor[r]al for a total of 5,370 square feet ." It was t o be

constructed on a tract of land owned by the Skieras in Boynton,

Beach, Florida.

3. The Building Contract provided for the following

allowances: $20,000.00 for "electrical"; $17,000.00 for

"plumbing"; $15,000 for "HVAC"; a "door hardware allowance" o f

"$50.00 per [interior] door"; $6,000.00 for a "stacked stone

veneer" exterior; an "entry door hardware allowance" of "$100.00

per door"; $15,000.00 for "kitchen cabinetry and vanity";

$8,000.00 for "counter tops and vanity tops"; $9,000.00 for

"landscapi ng," including "trees, shrubs, sod, automatic time

clock, [and an] operated irrigation system with rain sen sor";

and $7,000 for "driveways, walkways, [and] flatwork."

4. There was no written statement in the Building Contract

explaining a consumer's right s under the Construction Industries

Recovery F und, as then required by Section 489.1425, Florida

Statutes.

5. The Building Contract contained a "[p]ayment [d]raw

[s]chedule ," which provided as follows:

Upon execution of contract : 10% - $36,608.00

Thereaf ter, progress payments based on

schedule of values.

6. This "schedule of values" ( referred to in the

"[p]ayment [d]raw [s]chedule ") contained the following

"scheduled values" (excluding change orders) :

1. Permits $21,600.00

2. Cl earing/Grading/Fill $10,800.00

3. Foot'gs. Undgr Plumb,

Soil Treatmt $23,000.00

4. Foundation/Slab poured $32,760.00

5. Exterior Walls/Tie Beam $ 26,600.00

6. Roof Trusses $26,600.00

7. Roof Sh e athing/Felt $19,400.00

8. Interior Framing Complete $14,000.00

9. Windows/Exterior Door

Frames Set $14,400.00

10. 2nd Plumbing/Tub Set $7,200.00

11. Wiring Rough - In $14,400.00

12. HVAC Ducts Installed $7,200.00

13. Roof Shingles/Tiles

Installed $14,400.00

14. Insulation (wall & ceiling) $4,200.00

15. Exterior Trim/Soffits $11,800.00

16. Drywall Hung $14,400.00

17. Drywall Finish $10,800.00

18. Interior Trim/Interior

Doors Installed $13,400.00

19. Interior Paint $8,800.00

20. Siding/Stucco $14,400.00

21. Exterior Paint Complete $8,800.00

22. Exterior Doors & Garage

Door In s tall $6,200.00

23. Cabinets/Countertops

Installed $10,000.00

24. Plumbing Finish $3,600.00

25. Electrical Finish $5,600.00

26. HVAC - Compressor/A.H.

Installed $10,920.00

27. Driveway/Walks Installed $3,600.00

28. Landscaping/Irrigation $7,200.00

7. There were six separate change orders . They were dated

August 20, 2000 (Change Order No. 001), August 29, 2000 (Change

Order No. 002), September 26, 2000 (Change Order No. 003),

October 15, 200 0 (C hange Order No. 004), October 15, 2000

(Change Order No. 005), and November 10, 2000 (C hange Order No.

006).

8. As of December 21 , 2000, ICC had been paid in full for

all six change order s, as well as for items 1 through 8 on the

"schedule of values."

9. As of February 27, 2001, ICC had received additional

monies from the Skieras: payment in full for items 9 through 12

and 15 on the "schedule of values" and partial (50 percent)

payment f or items 13 and 20 on the "schedule of values."

10. As of April 10 , 2001, ICC had been paid a total of

$287,966.20 ( all from the proceeds of a mortgage loan the

Skieras had obtained from Admiralty Bank) for work done on the

Skiera Residence.

11. On May 1, 2001, the Skieras paid ICC an additional

$16,800.00 for drywall work, bringing the total amount of

payments that ICC had received from (or on behalf of) the

Skieras, as of that date, to $304,766.20. The Skieras made no

further payments to ICC.

12. Th e "eight valid claims of lien" referenced in the

Parties' Stipulation s were filed by eight different

subcontractors , all of whom had been hired by ICC to work on the

Skiera Residence : Boca Concrete Pumping, Inc. ; Gulf Stream

Lumber Company ; L & W Supply C orp. , d/b/a Seacoast Supply ; Waste

Management of Palm Beach ; B.T. Glass & Mirror, Inc. ; Boca Raton

Decorating Center Company ; American Stairs; and Broten Garage

Door Sales Inc. 3

13. Boca Concrete Pumping was the "very first"

subcontractor to work on the c onstruction of the Skiera

Residence. It did the "slab work, the foundation" (referenced

in item 4 of "schedule of values"). Its lien was recorded on

December 6, 2000 . The lien was in the amount of $1 , 001.25 , and

it indicated, on its face, that it was fo r unpaid "concrete

pumping" that had been furnished between September 8, 2000 , and

September 22, 2000 . A satisfaction of this lien, dated March 8,

2001, was filed March 24, 2001.

14. Gulf Stream Lumber's original lien was recorded

February 15, 2001. It was in the amount of $67,872.59 , and it

indicated, on its face, that it was for unpaid "building

material" that had been furnished between August 15, 2000 , and

January 24, 2001 . An amended claim of lien was recorded May 3,

2001, in the amount of $36,530. 59 for unpaid "building material"

that , according to the lien, had been furnished between

August 25, 2000, and March 27, 2001. A satisfaction of th e

original lien and amended claim of lien , dated November 30,

2001, was filed December 5, 2001. The lien s w ere satisfied ,

pursuant to the terms of a Settlement Stipulation, upon the

Skieras' payment of $39,579.28 to Gulf Stream Lumber .

15. L & W Su pply's lien was recorded April 30, 2001. It

was in the amount of $4,536.98 , and it indicated, on its face,

that it was for unpaid "building materials [and] related items"

that had been furnished between December 16, 2000, and

January 30, 2001. A satisfaction of this lien, dated

October 11, 2001 , was filed November 7 , 2001. The lien was

satisfied by the payment of $10.00 "and other good and valuable

consideration " (which was the payment of an additional $2,850.00

by check dated October 11, 2001).

16. Waste Management of Palm Beach 's lien was recorded

May 31, 2001. It was in the amount of $1,665.89 , and it

indicate d, on its face, that it was for unpaid "[w]aste

[r]emoval [s]ervices" that had been furnished between August 30,

2000, and April 5, 2001. A satisfaction of this lien, dated

October 19, 2001, was filed November 13, 2001.

17. B.T. Glass & Mirror 's lien was recorded June 29, 2001.

It was in the amount of $3,560.00 , and it indicated, on its

face, that it was for an unpaid "glass/mirror package " that had

been furnished between May 3, 2001 , and May 31 , 2001. A

satisfaction of this lien, dated October 19, 2001 , was filed

November 13, 2001. The lien was satisfied by the payment of

$1 , 600.00 (by check dated November 10, 2001), plus an agreeme nt

to provide "$2 , 000.00 in gazebo or arbor products from the

Hitching Post, " the Skieras' family business.

18. Boca Rat on Decorating Center 's lien was recorded

May 19, 2001. It was in the amount of $1,218.79 , and it

indicated, on its face, that it was for unpaid " paint, sealers

[and] sundries" that had been furnished between May 1 , 2001, to

May 2, 2001. A satisfaction of this lien, dated October 11,

2001, was filed November 7, 2001.

19. American Stairs ' lien was recorded August 16, 2001.

It was in the amount of $4,188.00 , and it indicated, on its

face, that it was for unpaid "[s]tairs and [r]ailings" that had

been furni shed between June 8, 2001, and June 15, 2001. A

satisfaction of this lien was executed on October 15, 2001 .

20. Broten Garage Door Sales ' lien was recorded

September 5, 2001. It was in the amount of $3,214.00 , and it

indicated, on its face, that it was for the u n paid "sale and

installation of garage doors and openers," which took place

between June 25, 2001, and July 17, 2001. A satisfaction of

this lien, dated January 31, 2002, was filed on February 5,

2002.

21. At a meeting "in the early part of Augu st [2001]"

attended by Respondent, Mr. Stasinos, the Skieras, and the

president of the bank from which the Skieras had borrowed the

money to pay for the construction of their residence, Respondent

announced that, on behalf of ICC, "he was filing [for]

bank ruptcy." 4

22. ICC stopped working on the Skiera Residence after this

meeting. At the time , the Skiera Residence was approximately 70

to 80 percent completed (and the Skieras had paid ICC a total of

$304,766.20, or approximately 80 percent of the total co ntract

price (including change orders) of $378, 286.20 5 ).

23. In addition to paying $57,316.62 to satisfy the "eight

valid claims of lien" referenced in the Parties' Stipulation s ,

the Skieras paid approximately an additional $57,000 .00 to other

subcontrac tors who provided goods and/or services "needed to

complete the house."

24. The $10,000.00 check referred to in the Parties'

Stipulation 14 ( that the Skieras received from Andover

Construction, Inc.) did not "represent any kind of final

settlement" betwe en the Skieras and ICC.

25. The October 4, 2001, Certificate of Occupancy for the

Skiera Residence referred to in the Parties' Stipulation s

indicated, on its face, that ICC was the contractor,

notwithstanding that ICC had abandoned the project "in the ear ly

part of August [2001]."

26. Respondent has been a Florida - licensed general

contractor since July 29, 1987.

27. I n his capacity as ICC's licensed qualifier, he has

previously ( by Final Order filed in DBPR Case Nos. 2001 - 03283

and 2001 - 03284 on Decembe r 23, 2003 ) been found guilty of , and

disciplined for , violating (in connection with two residential

construction projects undertaken by ICC for A. Richard Nernberg )

the same subsections of Secti on 489.129(1), Florida Statutes

(Subsections (1)(g), (i), and (m)) that he is accused of

violating in the instant case . In these prior disciplinary

proceedings, Respondent's license was suspended for two years ,

and he was fined $6,000.00 and required to pay $958.30 in

investigative costs .

28. Administrative compla ints were also filed against

Respondent in DBPR Case Nos. 94 - 15958 and 97 - 17352. Both of

these cases were resolved by settlement stipulations in which

Respondent "neither admit[ted] [nor] denie[d] the allegations of

fact contained in the [a]dministrative [c]omplaint[s]. "

CONCLUSIONS OF LAW

29. DOAH has jurisdiction over the subject matter of th e

instant proceeding and of the parties hereto pursuant to Chapter

120, Florida Statutes.

30. No " person " 6 may engage in the business of contracting

in Florida w ithout holding a valid license to do so .

§ 489.115 (1) , Fla. Stat.

31. A business organization , like ICC, may obtain such a

license, but only through a licensed "qualifying agent."

§ 489.119, Fla . Stat . ; see also Murthy v. N. Sinha Corp. , 644

So. 2d 98 3, 984 n.1 (Fla. 1994)("Chapter 489 requires a

corporation or other business entity seeking to become a

contractor to procure an individual licensed contractor as its

qualifying agent.") ; and Shimkus v. Department of Business and

Professional Regulation, C onstruction Industry Licensing B oard ,

932 So. 2d 223, 223 - 224 (Fla. 4th DCA 2005)("The statute

[Section 489.119, Florida Statutes] requires corporations

engaged in construction to have licensed individuals serving as

their qualifying agents.").

32. There are two types of "qualifying agents": "primary

qualifying agents," and "secondary qualifying agents."

§ 489.1195 (1) , Fla. Stat. At all times material to the instant

case , Respondent was the "primary qualifying agent" for ICC.

33. "All primary qualify ing agents for a business

organization are jointly and equally responsible for supervision

of all operations of the business organization; for all field

work at all sites; and for financial matters, both for the

organization in general and for each specifi c job."

§ 489.1195(1)(a), Fla. Stat. ; see also § 489. 105(4), Fla. Stat.

( "'Primary qualifying agent' means a person who . . . has the

responsibility, to supervise, direct, manage, and control the

contracting activities of the business organization with w hich

he or she is connected; who has the responsibility to supervise,

direct, manage, and control construction activities on a job for

which he or she has obtained the building permit; . . . .").

"To allow a contractor to be the 'qualifying agent' for a

c ompany without placing any requirement on the contractor to

exercise any supervision over the company's work done under his

license would permit a contractor to loan or rent his license to

the company. This would completely circumvent the legislative

inte nt that an individual, certified as competent, be

professionally responsible for supervising construction work on

jobs requiring a licensed contractor." Alles v. Department of

Professional Regulation , 423 So. 2d 624, 626 (Fla. 5th DCA

1982) .

34. The Cons truction Industry Licensing Board (Board) may

take disciplinary action against a licensed contractor serving

as the "primary qualifying agent" for a business organization

for violations of Section 489.129(1), Florida Statutes,

committed by either " the cont ractor . . . or business

organization for which the contractor is a primary qualifying

agent." The contractor "may not avoid responsibility [for any

such violation] by stating that he had nothing to do with the

project" in connection with which the violat ion was committed.

Hunt v. Department of Professional Regulation, Constr uction

Industry Licensing B oard , 444 So. 2d 997, 999 (Fla. 1st DCA

1983) ; see also Camejo v. Department of Business and

Professional Regulation , 812 So. 2d 583 , 584 (Fla. 3d DCA

2002) (" Camejo's defense in the disciplinary proceeding, and his

argument on appeal, is that he cannot be held accountable

pursuant to section 4 89.129, Florida Statutes (1999) for work

not performed, or poorly performed, pursuant to building permits

he never sig ned. We disagree. . . . Section 489.129 does not

carve out an exception for qualifying agents who fail to

maintain control over the use of their certificates. For this

court to do so by judicial fiat would weaken the authority of

the Construction Indust ry Licensing Board to govern the industry

and protect the public.").

35. At all times material to the instant case , t he

disciplinary action the Board was statutorily authorized to take

against a licensed contractor for a violation of Section

489.129(1), F lorida Statutes , was limited to the following:

revo king or suspen ding the contractor's license; placing the

contractor on probation; reprimand ing the contractor; deny ing

the renewal of the contractor's license; imposing an

administrative fine not to excee d $5,000.00 per violation 7 ;

requiring financial restitution to the victimized consumer(s);

requiring the contractor to take continuing education courses;

and assess ing costs associated with the investigation and

prosecution . See Department of Environmenta l Regulation v.

Puckett Oil Co. , 577 So. 2d 988, 992 (Fla. 1st DCA 1991)("[A]n

agency possesses no inhe rent power to impose sanctions,

and . . . any such power must be expressly delegated by

statute.").

36. The Board may take such disciplinary action onl y after

the licensee has been given reasonable written notice of the

charges and an adequate opportunity to request a proceeding

pursuant to Sections 120.569 and 120.57, Florida Statutes.

37. An evidentiary hearing must be held if requested by

the license e when there are disputed issues of material fact.

§§ 120.569(1) and 120.57(1), Fla. Stat.

38. At the hearing, the Department of Business and

Professional Regulation (Department) bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the charging instrument. Proof

greater than a mere preponderance of the evidence must be

presented by the Department to meet its burden of proof. Clear

and convincing evidence of the licensee's guilt is requir ed.

See Department of Banking and Finance, Division of Securities

and Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294

(Fla. 1987); and § 120.57(1)(j), Fla. Stat. ("Findings of fa ct

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute . . . .").

39. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible ; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4t h DCA

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

40 . In determining whether the Department has met its

burden of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits an

agency from taking penal action against a licensee based on

matters not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Shore

Village Property Owners' Association, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); Lusskin v. Agency for Health Care Administration , 731 So.

2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk

v. Department of Professional Regulation , 595 So. 2d 966, 967

(Fla. 5th DCA 1992).

41. The charging instrument in the instant case, the

Amended Administrative Complaint, contains four counts: Count

I, alleg ing a violation of Section 489.129(1)(i), Florida

Statutes, "by having violated [S]ection 4 89.14 25 (1), Florida

Statutes " ; Count II, alleging a violation of Section

489.129(1)(g)1 . , Florida Statutes ; Count III, alleging a

violation of Section 489.129(1)(g)3 . , Florida Statutes ; and

Count IV, alleging a violation of Section 4 89.129(1)(m), Florida

S tatutes.

42. At all times material to the instant case, Section

489.129(1) (g) , (i) , and (m), Florida Statutes, provided that the

following were disciplinable acts :

(g) Committing mismanagement or misconduct

in the practice of contracting that causes

fina ncial harm to a customer. Financial

mismanagement or misconduct occurs when:

1. Valid liens have been recorded against

the property of a contractor's customer for

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, within 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 contractor is entitled to retain

such funds under the terms of the contract

or refunds the excess fun ds within 30 days

after the date the job is abandoned [ 8 ] ; or

3. The contractor's job has been completed,

and it is shown that the customer has had to

pay more for the contracted job than the

original contract price, as adjusted for

subsequent change orde rs, 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 otherwise

permitted by the terms of the contract

between the contrac tor and the customer. [ 9 ]

* * *

(i) Failing in any material respect to

comply with the provisions of this part or

violating a rule or lawful order of the

board.

* * *

(m) Committing incompetency or misconduct

in the pract ice of contracting.

43. At all times material to the instant case, the

"[f] ail[ure] in any mate rial respect to comply with the

[following] provisions " of Section 489.14 25 (1) , Florida

Statutes, constituted wrongdoing of the type described in

Section 489.1 29(1)(i), Florida Statutes:

Any agreement or contract for repair,

restoration, improvement, or construction to

residential real property must contain a

written statement explaining the consumer's

rights under the Construction Industries

Recovery Fund [ 10 ] , e xcept where the value of

all labor and materials does not exceed

$ 2,500. The written statement must be

substantially in the fol low ing form:

CONSTRUCTION INDUSTRIES RECOVERY FUND

PAYMENT MAY BE AVAILABLE FROM THE

CONSTRUCTION INDUSTRIES RECOVERY FUN D IF YOU

LOSE MONEY ON A PROJECT PERFORMED UNDER

CONTRACT, WHERE THE LOSS RESULTS FROM

SPECIFIED VIOLATIONS OF FLORIDA LAW BY A

STATE - LICENSED CONTRACTOR. FOR INFORMATION

ABOUT THE RECOVERY FUND AND FILING A CLAIM,

CONTACT THE FLORIDA CONSTRUCTION INDUSTR Y

LICENSING BOARD AT THE FOLLOWIN G TELEPHONE

NUMBER AND ADDRESS:

The statement shall be immediately followed

by the board's address and telephone number

as e stablished by board rule.

Subsection (2) of Section 489.14 25 provided that such wrongdoing

was pu nishable as follows:

(2)(a) Upon finding a first violation of

subsection (1), the board may fine the

contractor up to $ 500, and the moneys must

be deposited into the Construction

I ndustries Recovery Fund.

(b) Upon finding a second or subsequent

violatio n of subsection (1), the bo ard shall

fine the contractor $ 1,000 per violation, [ 11 ]

and the moneys must be deposited into the

Constru ction Industries Recovery Fund. [ 12 ]

44. At all times material to the instant case, Florida

Administrative Code Rule 61G4 - 17. 001(1)(m)2 . provided that

"[ m]isconduct or incompetency in the practice of contracting,

shall include, but is not limited to: Violation of any

provision of . . . Chapter 489, Part I., F.S. "

45. Because of their penal nature , the foregoing statutory

and rule provisions must be strictly construed, with any

reasonable doubts as to their meaning being resolved in favor of

the licensee. See Jonas v. Florida Department of Business and

Professional Regulation , 746 So. 2d 1261, 1262 (Fla. 3 d DCA

2000)("[S]tatut es such as those at issue authorizing the

imposition of discipline upon licensed contractors are in the

nature of penal statutes, which should be strictly construed.");

and Capital National Financial Corporation v. Department of

Insurance , 690 So. 2d 1335, 1337 (Fla. 3 d DCA 1997)("Section

627.8405 is a penal statute and therefore must be strictly

construed: . . . . 'When a statute imposes a penalty, any

doubt as to its meaning must be resolved in favor of a strict

construction so that those covered by the statute have clear

notice of what conduct the statute proscribes.'").

46. The Department proved by clear and convincing evidence

that, as alleged in Count I of the Amended Administrative

Complaint, ICC committed a violation of Section 489.14 25 (1) ,

Florid a Statutes, for which Respondent, as ICC's "primary

qualifying agent , " was responsible, by failing to include in the

Building Contract the " written statement " required by this

statutory provision. This being " a sec ond or subsequent

violation of [S] ubsecti on (1) ," the Board has no discretion , in

light of the mandatory language in Subsection (2) of the

statute, but to fine Respondent $1,000.00 for this violation .

See J. I. S. v. State , 930 So. 2d 587, 591 (Fla. 2006) ("Relying

on the mandatory language of th is provision, this Court has held

that 'a sentence that does not mandate credit for time served

would be illegal since a trial court has no discretion to impose

a sentence without creditin g a defendant with time served.'").

47. The Department proved by c lear and convincing evidence

that, as alleged in Count II of the Amended Administrative

Complaint, ICC engaged in "[f] inancial mismanagement or

misconduct " in violation of Section 489.129(1)(g)1 . , Florida

Statutes, for which Respondent, as ICC's "primary q ualifying

agent," was responsible, by failing to have Boca Concrete

Pumping 's December 6, 2000, $1,001.25 lien timely removed . The

record (including the Parties' Stipulation s , Mr. Skiera's

testimony at pages 47 and 48 of the hearing Transcript, and

Petiti oner's Exhibit s H, J, and K ) clearly and con vincingly

establishes that this was a " valid lien " recorded against the

Skieras' property for ICC - ordered "foundation" and "slab work"

that was within the scope of the Building Contract and that ICC

failed to hav e the lien removed within 75 days despite having

had received money from the Skieras to pay for this work. The

Dep artment, however, failed to clearly and convincingly prove

that there was any " [f] inancial mismanagement or misconduct " of

the type described in Section 489.129(1)(g)1 . in connection with

any other lien rec o rded against the Skieras' property . While

there were, as the parties have stipulated, seven other " valid

claims of lien filed against the [Skieras'] property by

subcontractors for work that was within the scope of the

contract" (Seven Other Liens), it is unclear from the

Department's proof whether ICC had received funds from the

Skieras to pay for any of this work. Clarity and lack of

ambig uity in the evidence on this point are required for a

finding to be made that th ere was a violation of Section

489.129(1)(g)1 . based on ICC's failure to have these Seven Other

Liens removed within the statutorily - prescribed time frame . 13

Moreover, two of these Seven Other L iens ( L & W Su pply's and

American Stairs ' liens ) were removed " within 75 days after the

date of such liens " (albeit not as the result of any action

taken by ICC). 14

48. The Department also failed to clearly and convincing

prove Respondent's guilt of the violation of Section

489.129(1)(g)3 . , Florida Statutes, alleged in Count III of the

Amended Administrative Complaint , inasmuch as the record

affirmatively establishes that ICC abandoned the Skiera

Residence project before the project had been completed. Under

a strict construction of Secti on 489.129(1)(g)3 . (which is

required due to the statute's penal nature) , " [f] inancial

mismanagement or misconduct " of the type described therein can

occur only if the contractor has completed its job , which did

not happen in the instant case . 15

49. Throug h the same proof that clearly and convincingly

established the violations of Sections 489.129(1)(i) and

489.1425(1), Florida Statutes, alleged in Count I of the Amended

Administrative Complaint , and the violation of Section

489.129(1)(g)1 . , Florida Statute s, relating to Boca Concrete

Pumping 's December 6, 2000, $1,001.25 lien , alleged in Count II

of the Amended Administrative Complaint, the Department also

clearly and convincing ly established the derivative violation of

Section 489.129(1)(m), Florida Statut es, alleged in Count IV of

the Amended Administrative Complaint. This violation of Section

489.129(1)(m), Florida Statutes, however, is "subsumed in the

violation [s] of Section 489.129(1)(g)[1 . ] and (i), Florida

Statutes , " and cannot be separately punishe d. Department of

Business and Professional Regulation, Construction Industry

Licensing Board, v. Battaglia , No. 03 - 1224PL, slip op. at 13 - 14

(Fla. DOAH August 11, 2003)(Recommended Order), adopted in toto ,

(DBPR, CILB , December 23, 2003) ; cf . State v. Wel ler , 590 So. 2d

923, 926 (Fla. 1991)("If two statutory offenses are not

'separate' under the Blockburger test, then the 'lesser' offense

is deemed to be subsumed within the greater. This is simple

logic. When the commission of one offense always results in the

commission of another, then the latter is an inherent component

of the former. ")

50. The lone issue remaining for consideration is w hat

disciplinary action sho uld be taken against Respondent for his

violation of Section 489.129(1)(g)1 . , Florida Sta tutes , relating

to Boca Concrete Pumping 's December 6, 2000, $1,001.25 lien . To

answer this question it is necessary to consult the B oard's

"disciplinary guidelines " set forth Florida Administrative Code

Chapter 61G4 - 17, which impose restrictions and limi tations on

the exercise of its disciplinary authority . See Parrot Heads,

Inc. v. Department of Business and Professional Regulation , 741

So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency

is bound by its own rules . . . creat[ing] guidelines for

disciplinary penalties.") ; and § 455.2273(5), Fla. Stat. (" The

administrative law judge, in recommending penalties in any

recommended order, must follow the penalty guidelines

established by the board or department and must state in writing

the mitigat ing or aggravating circumstances upon which the

recommended penalty is based. "); cf . State v. Jenkins , 469 So.

2d 733, 734 (Fla. 1985)(" [A]gency rules and regulations, duly

promulgated under the authority of law, have the effect of

law."); Buffa v. Singlet ary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995)("An agency must comply with its own rules."); Decarion v.

Martinez , 537 So. 2d 1083, 1084 (Fla. 1st 1989)("Until amended

or abrogated, an agency must honor its rules."); and Williams v.

Department of Transportat ion , 531 So. 2d 994, 996 (Fla. 1st DCA

1988)(agency is required to comply with its disciplinary

guidelines in taking disciplinary action against its employees).

51. In Florida Administrative Code Rule 61G4 - 17.001 , the

Board has announced the "[n]ormal [p] enalty [r]anges " within

which its discipl inary action against contractors will fall ,

absent aggravating or mitigating circumstances, for specified

violations. When Respondent committed the violation of Section

489.129(1)(g)1 . , Florida Statutes , found in t he instant case ,

Florida Administrative Code Rule 61G4 - 17.00 1 provided, in

pertinent part, that for a "repeat violation " of Section

489.129(1)(g), a violator could expect, absent aggravating or

mitigating circumstances, to receive a penalty of a " $1500 to

$ 5000 fine and/or probation, suspension or revocation." The

rule has since been amended , and it now provides that the

"[n]ormal [p]enalty [r]ange " for such a "repeat violation"

extends from a "minimum" of a "$2,500 fine and/or probation, or

suspension" to a "maximum" of a "$ 10 ,000 fine and/or probation,

or suspension." In determining what discipline to impose in the

instant case, the Board is bound by the current version of the

rule (which makes no distinction between violations based on

when they were co mmitted), except to the extent that application

of the rule would violate ex post facto principles. 16 See Parrot

Heads , 741 So. 2d at 1233; Arias v. Department of Business and

Professional Regulation, Division of Real Estate , 710 So. 2d

655, 661 (Fla. 3d D CA 1998) ("[B] ecause any future creation and

application of penalty guidelines and application of those

guidelines to this litigant would constitute an ex post facto

application of law, remand for further agency action is not a

viable option. "); and § 455.2 273(5), Fla. Stat.

52. Florida Administrative Code Rule 61G4 - 17.001 further

gives notice , as it has at all times material to the instant

case, of the Board's additional authority to " assess the costs

of investigation and prosecution " and "order the contra ctor to

make restitution in the amount of financial loss suffered by the

consumer."

53. Florida Administrative Code Rule 61G4 - 17.00 2 lists

" [ a ] ggravating and [ m ] itigating circumstances " to be considered

in determining whether a departure from the "[n]orm al [p]enalty

[r]ange" is warranted in a particular case . Since prior to

Respondent's commission of the violation of Section

489.129(1)(g)1 . , Florida Statutes, found in the instant case,

these "[ a ] ggravating and [ m ] itigating circumstances " have

included th e 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

ext ent 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

a ssessed.

(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 penalty upon the

licensee's livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

54. Florida Administrative Code Rule 61G4 - 17.003 describes

what constit utes a "repeat violation," as that term is used in

Florida Administrative Code Rule 61G4 - 17.001 . Since prior to

Respondent's commission of the violation of Section

489.129(1)(g)1 . , Florida Statutes, found in the instant case,

Florida Administrative Code R ule 61G4 - 17.003 has provided as

follows:

(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 gui dance 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.

(2) The penalty given in the above list for

r epeat violations is intended to apply only

to situations where the repeat violation is

of a different subsection of Chapter 489,

F.S., than the first violation. Where, on

the other hand, 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.

55. Having considered the facts of the instant case in

light of the pertinent and applicable provisions of Florida

Adm inistrative Code Chapter 61G4 - 17, it is the view of the

undersigned that the following is the appropriate disciplinary

action to take against Respondent in the instant case for his

violation of Section 489.129(1)(g)1 . , Florida Statutes ( which is

a " repeat violation " of the type described in the second

sentence of Florida Administrative Code Rule 61G4 - 17.003 (2) ,

thus warranting a n enhanced penalty , greater than the penalty he

would receive if it were merely a "repeat violation" of the type

described in the f irst sentence of that rule provision ) :

(1) suspend his license for four years (with such suspension to

run consecutively with his current suspension) ; (2) fine him

$ 5,000.00; (3) require him to pay restitution in the amount of

$1,001.25 to the Skieras; a nd (4 ) order him to reimburse the

Department for all reasonable costs associated with the

investigation that led to the filing of the charge that he

committed this violation and for all reasonable costs associated

with the Department's successful prosecut i on of this charge

(excluding costs related to attorney time ).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board issue a Final Order :

(1) finding Respondent guilty of violating Sectio n 489.1425(1),

Florida Statutes , as alleged in Count I of the Amended

Administrative Complaint, and fining him $1 ,000.00 for this

violation; (2) finding Respondent guilty of the violation of

Section 489.129(1)(g)1 . , Florida Statutes , relating to Boca

Concr ete Pumping 's December 6, 2000, $1,001.25 lien, alleged in

Count II of the Amended Administrative Complaint, and taking the

following disciplinary action against him for this violation :

(a) suspending his license for four years (with such suspension

to ru n consecutively with his current suspension); (b) fining

him $5,000.00; (c) requiring him to pay restitution in the

amount of $1,001.25 to the Skieras; and (c) ordering him to

reimburse the Department for all reasonable investigative and

prosecutorial cost s (excluding costs related to attorney time)

incurred by the Department ; and (3) dismissing all other charges

in the Amended Administrative Complaint .

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

Leon County, Florida.

S

_____________________ ______________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with t he Clerk of the

Division of Administrative Hearings

this 8 th day of May , 2007.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2006).

2 The undersigned has accepted these factual stipulations. See

Columbia Bank for Cooperatives v. Okeelan ta Sugar Cooperative ,

52 So. 2d 670, 673 (Fla. 1951) (" When a case is tried upon

stipulated facts the stipulation is conclusive upon both the

trial and appellate courts in respect to matters which may

validly be made the subject of stipulation . "); Schrimshe r v.

School Board of Palm Beach County , 694 So. 2d 856, 863 (Fla. 4th

DCA 1997) (" The hearing officer is bound by the parties'

stipulations."); and Palm Beach Community College v. Department

of Administration, Division of Retirement , 579 So. 2d 300, 302

(Fl a. 4th DCA 1991)("When the parties agree that a case is to be

tried upon stipulated facts, the stipulation is binding not only

upon the parties but also upon the trial and reviewing courts.

In addition, no other or different facts will be presumed to

exis t.").

3 No representative of any of these lienors testified at the

final hearing.

4 According to the Parties' Stipulation 11, at the time of this

meeting, ICC had already filed for bankruptcy.

5 In its Proposed Recommended Order, Petitioner contends that

the total contract price (including change orders) was actually

$331,286.00 (or $47,000.00 less than the $378,286.20 the parties

had stipulated to in the Parties' Stipulations), explaining as

follows:

Although a balance of $73,520.00 remained on

the contract, Respondent testified that

certain items such as the air conditioning

(HVAC), landscaping, and cabinets and

countertops were removed from the scope of

the contract and that the Skieras would

complete these items themselves. According

to the contr act, allowances were made for

each of the aforementioned items as follows:

$15,000.00 for HVAC; $15,000.00 for kitchen

cabinetry; $8,000.00 for countertops; and

$9,000.00 for landscaping. The total amount

of these aforementioned items is $47,000.00.

Con sequently, the balance of the contract

price of $73,520.00 [$378,286.20 minus the

$304,766.20 the Skieras had paid ICC] that

would have been owed to Respondent should

have been reduced by $47,000 for a total

balance of $26,520.00.

The undersigned declines to make such a finding. Respondent did

testify that "air conditioning (HVAC), landscaping, and cabinets

and countertops were removed from the scope of the contract,"

but he later revealed that, in so testifying, he was only

relating what he had been told by Mr. Stasinos and added, "I

can't believe anything he tells me . . . ." Significantly,

Respondent never testified to having knowledge of any downward

adjustments made to the contract price as a result of the

"remov[als] from the scope of the contract" about which

Mr. Stasinos had supposedly told him. Respondent was

specifically asked, during his testimony, whether there were any

such downward adjustments, and his response was, "I don't know

that." Neither Respondent, nor counsel for Petitioner, said o r

did anything during the course of the hearing to rescind the

Parties' Stipulation that the total contract price was

$378,286.20. Accordingly, the undersigned is bound by this

factual stipulation. See Columbia Bank for Cooperatives , 52 So.

2d at 673; Sc hrimsher , 694 So. 2d at 863; and Palm Beach

Community College , 579 So. 2d at 302 .

6 A "person," as that term is used in Florida Statu t es,

"includes individuals, children, firms, associations, joint

adventures, partnerships, estates, trusts, business trus ts,

syndicates, fiduciaries, corporations, and all other groups or

combinations." § 1.01(3), Fla. Stat.

7 Section 489.129(1), Florida Statutes, was amended , effective

October 1, 2005, by Chapter 2005 - 227, to increase the maximum

amount the Board could fine a contractor from $5,000.00 to

$10,000.00 per violation . The Board, however, does not have the

authority to impose a fine in excess of $5,000.00 per violation

in the instant case inasmuch as the statutory amendment took

effect after the events that l ed to the filing of the Amended

Administrative Complaint against Respondent. See Childers v.

Department of Environmental Protection , 696 So. 2d 962, 964

(Fla. 1st DCA 1997)("The version of a statute in effect at the

time grounds for disciplinary action ar ise controls."); and

Willner v. Department of Professional Regulation, Board of

Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990)("In 1986,

Section 458.331(2)(d), Florida Statutes, was amended to increase

the amount of the maximum administrative fine which could be

assessed by appellee for violations of Section 458.3 31(1),

Florida Statutes. . . . The 1986 amendment in creased the

maximum fine from $1,000 per violation to $ 5,000 per violation.

Since all the violations for which appellant was found guilty

oc curred prior to the effective date of the 1986 amendment, the

maximum fine which could lawful ly be imposed by appellee was

$ 1,000 per violation.").

8 At all times material to the instant case, the mere

abandonment of a project, r egardless of the "percen tage of

completion , " was punishable under another subsection of the

statute, Section 489.129(1)(j), Florida Statutes ( which

prohibited a contractor from "[a]bandoning a construction

project in which the contractor is engaged or under contract as

a contract or " ). Whether there was an abandonment of any type in

the instant case that would subject Respondent to discipline is

a question before neither the undersigned nor the Board inasmuch

as Respondent has not been charged with violating either

Subsection (1)( g)2 . or Subsection (1)(j) of Section 489.129.

Respondent has not been charged with, and therefore cannot be

found guilty of and punished for, abandonment under either

subsection, regardless of what the evidence may show. See

Trevisani v. Department of Health , 908 So. 2d 1108, 1109 (Fla.

1st DCA 2005) ("A physician may not be disciplined for an

offense not charged in the complaint.") ; and Aldrete v.

Department of Health, Board of Medicine , 879 So. 2d 1244, 1246

(Fla. 1st DCA 2004)("Dr. Aldrete next alle ges he was found to

have violated the standard of care by leaving J.S. in the care

of an unqualified nurse, an uncharged offense. We agree this

offense was not charged in th e complaint and Dr. Aldrete can not

be disciplined on this ground.").

9 To meet its burden of proving a violation of Section

489.129(1)(g)3 . , the Department must establish that the

" contractor's job ha [d] been completed, and . . . that the

customer ha [d] had to pay more for the contracted job than the

original contract price, as adjus ted for subsequent change

orders ." Once it makes such a showing, the burden shifts to the

licensee to demonstrate that "such increase in cost was the

result of circumstances beyond the control of the contractor,

was the result of circumstances caused by t he customer, or was

otherwise permitted by the terms of the contract between the

contrac tor and the customer." See State v. Hicks , 421 So. 2d

510, 511 (Fla. 1982)("We find that as used in section 810.02(1),

the word 'unless' is a qualifier to the primary sentence of the

statute, separating the consent phrase from the enacting clause

and making consent an affirmative defense."); Baeumel v. State ,

7 So. 371, 372 (Fla. 1890)("[I]f there is an exception in the

enacting clause, the party pleading must show that his adversary

is not within the exception; but, if there be an exception in a

subsequent clause, or a subsequent statute, that is [a] matter

of defen[s]e, and is to be shown by the other party.")(internal

quotations omitted); and Royal v. State , 784 So. 2 d 1210, 1211

(Fla. 5th DCA 2001)("It has long been the rule that if there is

an exception in an enacting clause, the party pleading must show

that his adversary is not within the exception. If the

exception is found in a subsequent clause or statute, howe ver,

it is a matter of defense.")(citations omitted).

10 The "Construction Industries Recovery Fund" is now the

"Florida Homeowners' Construction Recovery Fund." § 489.140,

Fla. Stat.

11 Section 489.1425(2), Florida Statutes, still provides for a

manda tory $1,000.00 fine for a " second or subsequent violation

of [S] ubsection (1) " of the statute.

12 Florida Administrative Code Rule 61G4 - 17.001 (1)(i)4 . provides

that, absent aggravating or mitigating circumstances, the

"normal penalty range" for a repeat v iolation of Section

489.1425(1), Florida Statutes, is a " minimum " of a $250.00 fine

to a " maximum " of a $500.00 fine. Since this rule provision, on

its face, direct ly conflict s with the clear mandate of Section

489.1425(2)(b), Florida Statutes, it must gi ve way to the

latter. See Broward Children's Center, Inc. v. Hall , 859 So. 2d

623, 627 (Fla. 1st DCA 2003)("Where an agency adopts a rule that

conflicts with a statute, the statute prevails."); Johnson v.

Department of Highway Safety and Motor Vehicles, D ivision of

Driver's Licenses , 709 So. 2d 623, 624 (Fla. 4th DCA 1998)("We

agree that, when a rule is in direct conflict with a statute,

the latter must control."); and Star Employment Service, Inc. v.

Florida Industrial Commission , 109 So. 2d 608, 610 (Fla . 3d DCA

1959)("To the extent, of course, that the rule conflicts with

the statute, the latter must under familiar principles,

govern.").

13 "The Skieras paid [ICC] a total of $304,766.20 for work on

the home" (as the parties have stipulated), $73,520.00 less than

the $378,286.20 total contract price. The money was paid in

installments pursuant to a "[p]ayment [d]raw [s]chedule."

Having carefully reviewed the record evidence, the undersigned

cannot state, "without hesitancy," that the $304,766.20 ICC

rec eived from the Skieras was for any of the allegedly unpaid

items described in the Seven Other Liens .

14 Five of these Seven Other Liens were filed either after, or

less than 75 days before, ICC filed for bankruptcy. What

effect, if any, this bankruptcy filing had on these liens the

undersigned need not, and therefore will not, decide.

15 A contractor who does not complete a project may be subject

to disciplinary action for abandonment, but not pursuant to

Section 489.129(1)(g)3., Florida Statutes.

16 Imposing a fine in excess of $5,000.00 would constitute an ex

post facto violation.

COPIES FURNISHED :

Jeffrey J. Kelly, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 323 99 - 2202

Ralph N. Battaglia

9284 Vista Del Lago Drive, Apt. 34 - A

Boca Raton, Florida 33428

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Nor thwood 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

N OTICE OF RIGHT TO SU B MIT 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 this case.