07-005536PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Geoffrey C. Gill Status: Closed Recommended Order on Tuesday, June 10, 2008.

Summary: Respondent found guilty of a myriad of infractions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-5536PL

)

GEOFFREY C. GILL, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on April 16, 2008, by Jeff B. Clark, duly-designated

Administrative Law Judge of the Division of Administrative

Hearings, in Orlando, Florida.

APPEARANCES

For Petitioner: Arthur S. Barksdale, IV, Esquire

Wright, Fulford, Moorehead & Brown, P.A.

145 North Magnolia Avenue

Orlando, Florida 32801

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against

Respondent's contracting license based on the violations as

charged in the Administrative Complaint in this proceeding.

PRELIMINARY STATEMENT

On September 25, 2007, Petitioner, Department of Business

and Professional Regulation, Construction Industry Licensing

Board, filed an Administrative Complaint alleging that

Respondent, Geoffrey C. Gill, d/b/a Transflorida Corporation,

had violated the laws regulating his professional activities as

a certified contractor in the State of Florida. The

Administrative Complaint charged Respondent with violating

Subsection 489.129(1)(i), Florida Statutes (2006), 1/ by failing

to apply for the necessary permits after receiving, as initial

payment, money totaling more than ten percent of the contract

price for repair, restoration, improvement, or construction to

residential real property, in violation of Subsection

489.126(2)(a), Florida Statutes; violating Subsection

489.129(1)(g)(2), Florida Statutes, by committing mismanagement

or misconduct in the practice of contracting that causes

financial harm to a customer, which occurs when 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 funds within 30 days after

the date the job is abandoned; violating Subsection

489.129(1)(j), Florida Statutes, by abandoning a construction

project in which the contractor is engaged or under contract as

a contractor; and violating Subsection 489.129(1)(m), Florida

Statutes, by committing incompetence or misconduct in the

practice of contracting.

On October 31, 2007, Respondent filed an Answer to

Administrative Complaint that disputed some allegations

contained in the Administrative Complaint, effectively electing

to have a formal administrative hearing. The case was

transferred to the Division of Administrative Hearings by letter

dated December 7, 2007, that requested a hearing pursuant to

Subsection 120.57(1), Florida Statutes.

An Initial Order was forwarded to the parties on the same

day, December 7, 2007. Based on the joint response, the case

was scheduled for final hearing in Orlando, Florida, on

February 1, 2008. On February 7, 2008, Respondent requested a

continuance that was granted on February 8, 2008. The case was

rescheduled for final hearing April 16, 2008.

The final hearing took place as rescheduled. Respondent

did not appear. Petitioner offered the testimony of one

witness, Peter Cali, and introduced eight exhibits, which were

entered into evidence and marked Petitioner's Exhibits 1

through 8.

The Transcript was filed on May 7, 2008. Petitioner timely

filed a Proposed Recommended Order.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses

presented and the entire record in this proceeding, the

following Findings of Fact are made:

1. Respondent is a certified contractor, having been

issued License No. CGC 1506923 by the Florida Construction

Industry Licensing Board. Respondent's licensure as a certified

general contractor is "Current, Active."

2. Respondent is the primary qualifying agent for his

company, Transflorida Corporation, which has a Certificate of

Authority as a Contractor Qualified Business, License

No. QB 29658; that licensure is "Current."

3. On or about July 3, 2006, Peter Cali entered into a

written contractual agreement with Respondent, d/b/a

Transflorida Corporation, for the construction of an addition to

his residence at 2103 Lake Pickett Road, Orlando Florida.

4. The original contract price between Respondent and

Mr. Cali was $60,000.00.

5. On July 3, 2006, Mr. Cali paid a total of $30,000.00 to

Respondent.

6. Respondent delivered some bricks to the Cali residence

and had the septic tank pumped out.

7. With the exception of the foregoing, Respondent failed

to accomplish any meaningful work on the project. Respondent

abandoned the project.

9. Mr. Cali telephoned Respondent repeatedly requesting

that Respondent perform the construction as agreed. Mr. Cali

did nothing to inhibit Respondent's performance of the

construction contract.

10. Although requested, Respondent did not refund any

money to Mr. Cali. Mr. Cali did not benefit as a result of the

delivery of the bricks or the pumping of the septic tank.

Mr. Cali's "out of pocket" damages are $30,000.00.

11. Petitioner's total investigative cost for the case is

$701.63.

12. Respondent has been the subject of seven final orders

revoking his professional license and fining him a total

$230,000.00. 2/

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.57 , Florida Statutes (2007).

14. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Chapters 455 and 489,

Florida Statutes.

15. Pursuant to Section 489.129, Florida Statutes, the

Florida Construction Industry Licensing Board is empowered to

revoke, suspend, or otherwise discipline the license of a

contractor who is found guilty of any of the prohibited acts

enumerated in Subsection 489.129(1), Florida Statutes.

16. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent alleged

in the Administrative Complaint. Department of Banking and

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

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

Packing Co. v. Department of Agriculture and Consumer Services ,

550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA 1989), provides the

guidance regarding the clear and convincing evidence standard.

That standard has been described as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

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 the firm belief of (sic)

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983).

17. The Administrative Complaint alleges that Respondent

is guilty of having violated Subsection 489.129(1)(i), Florida

Statutes, by failing to comply with Subsection 489.126(2),

Statutes.

18. Subsection 489.129(1), Florida Statutes, provides, in

pertinent part:

The Board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate,

registration, or certificate of authority,

require financial restitution to 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:

* * *

(g) Committing mismanagement or

misconduct in the practice of contracting

that causes financial harm to a customer.

Financial mismanagement or misconduct occurs

when:

* * *

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 funds within 30 days

after the date the job is abandoned; or

* * *

(j) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presumed abandoned after 90 days if the

contractor terminates the project without

just cause or without proper notification to

the owner, including the reason for

termination, or fails to perform work

without just cause for 90 consecutive days.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

* * *

(o) Proceeding on any job without

obtaining applicable building department

permits and inspections.

19. Subsection 489.126(2)(a), Florida Statutes, provides,

in pertinent part:

(2) A contractor who receives, as initial

payment, money totaling more than 10 percent

of the contract price for repair,

restoration, improvement, or construction to

residential real property must:

(a) Apply for permits necessary to do work

within 30 days after the date payment is

made, except where the work does not require

a permit under the applicable codes and

ordinances . . . .

20. Petitioner has failed to prove by clear and convincing

evidence that Respondent violated Subsection 489.126(2)(a),

Florida Statutes. No evidence was presented regarding

permitting.

21. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(g)2., Florida

Statutes, by establishing that Respondent abandoned the contract

with Mr. Cali and that no meaningful work was performed by

Respondent, thereby causing financial harm to Mr. Cali. This

occurred when Respondent failed to initiate any meaningful work

on the project. Having performed no meaningful work, Respondent

was not entitled to retain any funds paid by Mr. Cali under the

terms of the contract and did not refund the funds within 30

days after the date the job was abandoned.

22. Petitioner has proven by clear and convincing evidence

that Respondent violated of Subsection 489.129(1)(j), Florida

Statutes, by abandoning the project under which Respondent was

engaged or under contract as a contractor with Mr. Cali. A

project may be presumed abandoned after 90 days if the

contractor terminates the project without just cause or without

proper notification to the owner, including reason for

termination, or fails to perform work without just cause for

90 consecutive days.

23. Petitioner has proven by clear and convincing evidence

that Respondent has violated Subsection 489.129(1)(m), Florida

Statutes, by committing misconduct in the practice of

contracting, by abandoning the contract, and causing financial

harm to his customer.

24. Respondent is subject to disciplinary action by the

Construction Industry Licensing Board pursuant to Sections

455.227 and 489.129, Florida Statutes. The disciplinary actions

under these statutes includes p l a c i n g t h e l i c e n s e e o n p r o b a t i o n ;

reprimanding the lice nsee; revoking, suspending, an d denying the

issuance or rene wal of the certif icate or registra tion; requiring

financial rest itution to the consumer; im posing an ad ministrative

fine not to exceed $1 0,000 per violat ion; and requir ing continuing

education and asse ssing costs asso ciated with in vestigation and

prosecution.

25. Subsection 455.2273(5), Florida Statutes, states 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 mitigating or aggravating circumstances upon which the

recommended penalty is based.

26. Florida Administrative 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

licensee's customer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is 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 penalty upon the

licensee's livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

27. Florida 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

subject to other provisions of this chapter.

* * *

(g) Section 489.129(1)(g), F.S.:

Mismanagement or misconduct causing

financial harm to the customer. First

violation, $1,500 to $2,500 fine,

restitution and/or probation; repeat

violation, $2,500 to $5,000 fine,

restitution and suspension or revocation.

* * *

(j) Section 489.129(1)(j), F.S.:

Abandonment. First violation $5,000 to

$1,000 fine and/or probation; repeat

violation, $5,000 fine and revocation.

* * *

(m) Misconduct or incompetency in the

practice of contracting, shall include, but

is not limited to:

* * *

2. Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I, F.S.

* * *

4. The following guidelines shall apply

to cases involving misconduct or

incompetency in the practice of contracting,

absent aggravating or mitigating

circumstances:

* * *

b. Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I, F.S.

First violation, $1,000 to $2,500 fine;

repeat violation, $2,500 to $5,000 fine and

suspension and revocation.

c. Any other form of misconduct or

incompetency. First violation, $500 to

$1,000 fine and probation; repeat violation,

$1,000 to $5,000 fine and suspension or

revocation. . . .

28. There is evidence that Respondent has been previously

disciplined for many violations under Chapter 489, Florida

Statutes, therefore, the guidelines that should be used are for

repeat violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered as follows:

1. Finding Respondent guilty of having committed one

violation of Subsection 489.129(1)(g)2., Florida Statutes, as

alleged in Count II of the Administrative Complaint, and

imposing as a penalty an administrative fine in the amount of

$5,000.00;

2. Finding Respondent guilty of having committed one

violation of Subsection 489.129(1)(j), Florida Statutes, as

alleged in Count III of the Administrative Complaint, and

imposing as a penalty an administrative fine in the amount of

$5,000.00;

3. Finding Respondent guilty of having committed one

violation of Subsection 489.129(1)(m), Florida Statutes, as

alleged in Count IV of the Administrative Complaint, and

imposing as a penalty an administrative fine in the amount of

$5,000.00;

4. Requiring Respondent to pay financial restitution in

the amount of $30,000.00 to Peter Cali;

5. Assessing cumulative cost of investigation and

prosecution in the total amount of $701.63, which excludes costs

associated with any attorney's fees; and

6. Permanently revoking Respondent's license as a result of

the numerous violations and the financial harm sustained by Peter

Cali.

DONE AND ENTERED this 10th day of June, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of June, 2008.

ENDNOTES

1/ All references are to 2006 Florida Statutes, unless otherwise

indicated.

2/ Petitioner's Exhibit 1, affidavits of the Construction

Industry Licensing Board's records custodian dated February 11,

2008, indicated a "Current, Active" status regarding

Respondent's license. Petitioner's Exhibit 2, Seven

Construction Industry Licensing Board Final Orders, each dated

March 11, 2008, revoke Respondent's license.

COPIES FURNISHED :

Arthur S. Barksdale, IV, Esquire

Wright, Fulford, Moorhead & Brown, P.A.

145 North Magnolia Avenue

Orlando, Florida 32801

Randall L. Gilbert, Esquire

Gilbert & Kaufman, P.A.

1720 Harrison Street, Penthouse B

Hollywood, Florida 33020

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

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 this case.