08-004491 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Douglas J. Ringold, Jr., D/B/A Alpha Restoration, Inc. Status: Closed Recommended Order on Tuesday, February 10, 2009.

Summary: Respondent is guilty of failing to timely obtain permit and the abandonment of a roofing project.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4491

)

DOUGLAS J. RINGOLD, JR., d/b/a ALPHA RESTORATION, INC., )

)

)

Respondent. )

)

RECOMMENDED ORDER

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

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on November 12, 2008, by

video teleconference at sites in Lauderdale Lakes and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Brian Coats

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Paul Buschmann, Esquire

Hinshaw & Culbertson, LLP

One East Broward Boulevard, Suite 1010

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Douglas J.

Ringold, Jr., d/b/a Alpha Restoration, Inc., committed the

offenses alleged in a four-count Administrative Complaint filed

with Petitioner, the Department of Business and Professional

Regulation, on January 4, 2008, and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

In December 2007 Petitioner issued a four-count

Administrative Complaint in DBPR Case No. 2006-050524, alleging

that Respondent had violated certain statutory provisions

governing the conduct of individuals in Florida licensed by the

Construction Industry Licensing Board. In particular, it is

alleged in the Administrative Complaint that Respondent violated

Section 489.129(1)(i), Florida Statutes, by “failing in any

material respect to comply with the provisions of this part or

violating a rule or lawful order of the board,” by violating

Section 489.126(2)(a), Florida Statutes (Count I); Section

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

or misconduct in the practice of contracting that causes

Florida Statutes, “by abandoning a construction project in which

the contractor is engaged or under contract as a contractor”

(Count III); and Section 489.129(1)(m), Florida Statutes, “by

committing incompetency or misconduct in the practice of

contracting” (Count IV).

Respondent, by executing an Election of Rights form,

disputed the factual allegations of the Administrative Complaint

and requested “a hearing before an administrative law judge

before the Division of Administrative Hearings” pursuant to

Section 120.57(1), Florida Statutes.

A copy of the Administrative Complaint and Election of

Rights form were filed with the Division of Administrative

Hearings on September 16, 2008. The matter was designated DOAH

Case No. 08-4491PL and was assigned to the undersigned.

The final hearing was scheduled for November 12, 2008, by

Notice of Hearing entered September 23, 2008. By Amended Notice

of Hearing by Video Teleconference, the hearing was scheduled to

be heard by video teleconferencing between sites in Lauderdale

Lakes and Tallahassee, Florida.

At the final hearing, Petitioner presented the testimony of

Raul Chinaya (Petitioner spelled Mr. Chinaya’s name “Chinea”

and, in the Transcript, his name is spelled “China.” On page 15

of the Transcript, however, the witness spelled his name “Chi-

nay-a”), and Jose Fons. Petitioner also had 13 exhibits

admitted. Respondent testified on his own behalf and had one

exhibit admitted.

On January 9, 2009, a Notice of Filing Transcript was

issued informing the parties that the one-volume Transcript of

the final hearing had been filed. The parties were also

informed that their proposed recommended orders were to be filed

on or before January 20, 2009.

Petitioner filed Petitioner’s Proposed Recommended Order on

January 20, 2009. Respondent filed Respondent’s Proposed

Recommended Order on January 27, 2009. It does not appear that

Petitioner has been prejudiced by Respondent’s failure to timely

file his post-hearing submittal. Therefore, both proposed

recommended orders have been fully considered in preparing this

Recommended Order.

All references to the Florida Statutes in this Recommended

Order are to the codification applicable to the years in which

the events alleged in the Administrative Complaint took place,

2005 and 2006, unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

Regulation (hereinafter referred to as the "Department"), is the

agency of the State of Florida charged with the responsibility

for, among other things, the licensure of individuals who wish

to engage in contracting in the State of Florida; and the

investigation and prosecution of complaints against individuals

who have been so licensed. See Chs. 455 and 489, Fla. Stat.

2. Respondent, Douglas J. Ringold, Jr., d/b/a Alpha

Restoration, Inc., is and has been at all times material hereto

a certified roofing contractor in Florida, having been issued

license number CCC 1326506 by the Construction Industry

Licensing Board (hereinafter referred to as the “Board”). At

all times material hereto, the status of his license has been

"Current, Active."

3. At all times material, Mr. Ringold was certified as

doing business as Alpha Restoration, Inc. (hereinafter referred

to as "Alpha"), a Florida corporation.

4. At the times material, Mr. Ringold was the qualifying

agent for Alpha, which possesses a certificate of authority as a

contractor qualified business in Florida, license number QB

40272. Alpha’s license was issued May 5, 2005, and it is

scheduled to expire August 31, 2010.

5. On or about November 7, 2005, Alpha, through its

employee Harry Youdell, met with Jose Fons at Mr. Fons’

residence located at 9922 Southwest 2nd Terrace, Miami, Florida

(hereinafter referred to as the “Residence”), to inspect the

roof on the Residence. Mr. Fons had not been successful in

obtaining approval from his insurance company for replacement of

the hurricane-damaged roof. Alpha represented that it would

assist Mr. Fons in negotiating with his insurance company to

obtain approval for replacement of the roof, which Mr. Fons

authorized, in writing, Alpha to do.

6. On January 15, 2006, Mr. Fons and Alpha entered into a

written agreement (hereinafter referred to as the “Contract”)

whereby Alpha agreed to install a metal tile roof on the

Residence in exchange for payment of $27,187.02, with possible

increases for “additional payments & supplements,” from

Mr. Fons. The Contract provided for a 50 percent material

deposit to be paid to Alpha.

7. By check dated January 15, 2006, Mr. Fons paid the

50 percent deposit totaling $13,600.00 to Alpha.

8. At the time the Contract was entered into, Alpha told

Mr. Fons that a permit would be applied for the following week

and that construction would commence in February. Although

there was unsubstantiated hearsay that Mr. Fons was informed

that the metal tile roof Mr. Fons was purchasing had not been

approved for use in Miami-Dade County, Mr. Fons credibly denied

being so informed. The credible, non-hearsay evidence supports

a finding that Mr. Fons was not immediately informed that metal

tile roofs were not authorized in Miami-Dade County.

9. Despite not providing written or verbal authorization

to Alpha to wait more than 30 days after execution of the

Contract to apply for the permit for the roof work, no permit

was applied for by Alpha for the Residence roof work within

30 days after January 15, 2006. Nor did Alpha commence work of

any kind on the project in January or February 2006.

10. During the first week of March, having heard nothing

more from Alpha, Mr. Fons called Alpha and inquired about the

status of the project. Mr. Fons was told by Mr. Youdell that

the metal tile roof had not been approved by the Miami-Dade

Building Department (hereinafter referred to as the “Building

Department”). Mr. Youdell told Mr. Fons it would take another

30 days to obtain a permit.

11. As of April 2006, Alpha had not commenced work or

contacted Mr. Fons. Therefore, Mr. Fons called and spoke to

Mr. Youdell about the status of the project. Mr. Fons was again

told that the metal tile roof had not been approved and that

testing of the roof would take another 30 days.

12. In fact, Alpha had not made application for any permit

for the Residence roof job through April 2006. On May 11, 2006,

approximately 114 days after receiving Mr. Fons’ deposit, Alpha

finally submitted an application for the permit with the

Building Department. The application was designated C2006169450

by the Building Department.

13. In May 2006, Mr. Fons again contacted Alpha to inquire

about the project, since no work had been started and he had not

heard from Alpha. For the third time, Alpha told Mr. Fons that

the roof had not gained approval from the Building Department

and that another 30 days was needed.

14. In June 2006, Mr. Fons again contacted Alpha. Work on

his roof had not started and he had not heard from Alpha. Not

surprisingly, Mr. Fons was told for the fourth time that the

roof had not gained approval and there would be another 30-day

delay.

15. Mr. Fons, who was becoming frustrated with the delay,

visited the Building Department and inquired about the project.

He learned that Alpha had not applied for a permit until May

2006 and was told that the Building Department had “denied” it

on May 16, 2006. Mr. Fons was not told by the Building

Department that, despite the “denial,” the permit application

remained open.

16. By July 2006, Alpha had still not commenced work.

Therefore, Mr. Fons contacted Alpha and requested a meeting to

discuss alternatives to the metal tile roof. Obviously,

Mr. Fons was aware that metal tile roofs were not approved for

use in Miami-Dade County since entering into the Contract.

17. While no work had commenced from January 15, 2006,

when the written agreement was entered into and the deposit was

made, through July 2006, Mr. Fons effectively agreed to wait for

Alpha to attempt to gain approval for the metal tile roof from

the Building Department. Having obtained Mr. Fons’ approval,

Alpha could not have commenced work on the project through July

2006.

18. On July 17, 2006, Alpha, through Mr. Youdell, met with

Mr. Fons at the Residence. Because of the delays that had been

caused by the failure of Alpha to gain approval of the metal

tile roof from the Building Department and with assurances that

the contract price would be the same, Mr. Fons agreed to accept,

and Alpha agreed to provide, a tile roof.

19. Alpha represented to Mr. Fons that the tile roofing

material was in-stock, that a permit would be obtained within a

week, and that construction would commence by mid-August 2006.

20. Between July 25, 2006, approximately a week after the

July 17, 2006, meeting, and August 7, 2006, Mr. Fons monitored

the Building Department’s web-site to see if Alpha had applied

for a permit for the tile roof. When there was no indication

that the permit had been applied for, Mr. Fons called Alpha on

August 8, 2006. Mr. Youdell told him that the permit had been

applied for and it had not appeared in the computer system

because the Building Department was backlogged. Mr. Youdell

told Mr. Fons that Alpha would be at the Residence in ten days

to at least clean up debris.

21. As of August 18, 2006, no new permit had been applied

for and no one from Alpha had been to the Residence.

Consequently, Mr. Fons wrote and delivered a letter by facsimile

addressed to Mr. Ringold, stating, in part, the following:

After months of dealing with you, this is my

formal request for a full refund of $13,600

paid to you January 15, 2006, with my

personal check #6408. Said amount was a

deposit for the contract for the replacement

of the roof at my residence located at 922

SW 2 Terrace, Miami, FL.

As you are aware of, Florida Statutes

489.126 demands that you apply for the

necessary permits within 30 days after the

initial payment (my payment to you on 1-15-

06 $13,600). Please do not call me, from

now on all communications will be done in

written form.

If you fail to refund my deposit within 10

days, please be advised that I will file a

complaint . . . .

Since we are now in August, and you have not

commenced work at my residence, this is my

demand letter for a check in full refund of

my deposit within 10 days of receipt of this

letter.

22. On August 24, 2006, after having received Mr. Fons’

August 18, 2006, letter, Alpha submitted an on-line application

for a tile roof for the Residence. The matter was designated

W2006262830. This permit application was not approved because

Alpha failed to complete the application process.

23. When he did not receive a response to his August 18,

2006, letter, Mr. Fons wrote a second letter to Alpha, which was

mailed by certified mail on or about September 4, 2006. In the

second letter, Mr. Fons indicated that the ten-day deadline set

out in his previous letter had passed without response and he

again requested the return of his deposit.

24. On September 3, 2006, the original metal tile roof

permit application was rejected by the Building Department. On

September 8, 2006, the permit application, having been converted

from a metal roof to a tile roof, was approved and issued as

permit number 2006126043.

25. On September 6, 2006, after Alpha had applied for and

obtained a permit, Mr. Fons finally received a written response

from Alpha to his August 18, 2006, letter. In the response,

Mr. Ringold suggests the following: “At the signing of your

contract you were aware that ‘Metro Steel Tile’ did not have

Miami Dade approval and you were willing to wait for such to be

approved. This made securing a permit in 30 days impossible and

you were completely aware of that at the time.” Mr. Ringold’s

understanding of Mr. Fons’ “understanding” has not been

substantiated by the evidence presented in this case, and is,

therefore, rejected.

26. Mr. Ringold goes on to accurately suggest that

Mr. Fons and Alpha had modified the agreement in July, when it

was agreed that a tile roof would be placed on the Residence.

Mr. Ringold then suggests that any delay in applying for a

permit after July was due to the need to ensure that the tiles

were delivered, facts Mr. Fons was not previously apprised of.

27. Mr. Ringold ends the letter as follows:

We have confirmed that your tile is acquired

and have applied for your permit. . . . Had

we been informed that you were so concerned

that your permit be pulled immediately we

would have been more than happy to do so.

We never worry about getting the permit in

Dade County as they are very effective in

issuing permits in a timely manner [a fact

which Mr. Youdell was apparently not aware

of, given his representation to Mr. Fons

that the Building Department was back

logged]. I do not understand the reason for

the letter?

We sincerely have always had your best

interest at heart, and want to proceed with

the install. I am confident that you will

be pleased with the finished product.

Please if you would contact me directly at .

. . to discuss this matter.

28. On September 11, 2006, Mr. Fons found a copy of permit

number 2006126043, issued on September 8, 2006, on the door of

the Residence.

29. Other than a letter from Mr. Fons to Alpha dated

October 23, 2006, requesting a list of subcontractors and

suppliers used by Alpha, there was no further correspondence

between Alpha and Mr. Fons. Nor did Alpha make any effort to

fulfill its obligations under the Contract.

30. Ultimately, permit number 20066126043, issued

September 8, 2006, was cancelled based upon a February 7, 2007,

request from Alpha. No work took place on the project for more

than 90 days after the permit was issued.

31. Based upon the foregoing, more than six months passed

after the Contract was entered into without any work being

performed by Alpha: January 15, 2006, to July 17, 2006. While

the evidence failed to prove that Mr. Fons was fully informed at

the time the Contract was entered into that the metal tile

roofing he had selected was not approved for use in Miami-Dade

County and, therefore, securing a permit would take some time to

acquire, he was eventually informed of these facts. Ultimately,

Mr. Fons acquiesced to the delay in commencing work between

January 15, 2006, and July 17, 2006, when Mr. Fons and Alpha

agreed to a modification of the Contract; in particular, to

replace the roof on the Residence with a tile roof. There was,

therefore, no “abandonment” of the project between January and

July 2006.

32. Between July 17, 2006, and February 2007, a period of

eight months, no work was performed on the project. In fact,

after early September 2006 there was no meaningful communication

between Mr. Fons and Alpha. Viewing the evidence most favorably

to Alpha, Alpha had informed Mr. Fons in a letter he received on

September 6, 2006, that the tiles were available (the evidence

failed to substantiate this claim; if the tiles had been

“available” they would have been delivered directly to the

Residence), the permit had been obtained, Alpha indicated its

willingness to fulfill its obligation, and Alpha attempted to

place the ball in Mr. Fons’ court by asking that he call to

discuss the matter, and Mr. Fons had demanded a return of his

deposit.

33. Viewing the evidence most favorably to Mr. Fons, he

had been waiting for eight months to have his roof repaired; he

had on a monthly basis had to initiate contact with Alpha and

every time he did, was told “it will be another 30 days”; Alpha

had taken until May 2006 to make its first application for a

permit, despite the fact that Alpha had represented to Mr. Fons

that the permit would be obtained in January and that work would

commence in February, the monthly representations that the

permit had been applied for but was being held up by the

Building Department. After renegotiating his contract, Mr. Fons

was again told that the permit would be pulled within a week and

that work would commence within a month. Despite these

representations, no permit was applied for until after his

August 18, 2006, letter was received and that permit was never

approved. When Mr. Fons did finally complain and request the

return of his deposit, although it had only been a month since

renegotiating the type of roof to be placed on the Residence,

Alpha did not respond until September 6, 2006, and only

responded after finally obtaining a permit. Given these

circumstances, the suggestion of Alpha that “[w]e sincerely have

always had your best interest at heart, and want to proceed with

the install” must have seemed disingenuous to Mr. Fons.

34. Weighing the foregoing facts, it is ultimately found

the return of his deposit, was simply too little, too late.

Given the total eight-month delay in the project and all the

misinformation Mr. Fons had been given by Alpha, and especially

in light of the fact that Alpha had $13,600.00 of Mr. Fons’

money for which it had performed no work whatsoever, Alpha

should have done more to attempt to fulfill the contract.

Failing to do more under these circumstances constitutes an

abandonment of the project to the financial detriment of

Mr. Fons.

35. On February 21, 2007, Mr. Fons contracted with another

company to install a tile roof on the Residence. Work commenced

February 23, 2007, and was completed March 5, 2007.

36. Mr. Fons has suffered a loss of $13,600.00 as result

of Alpha’s failure to fulfill its obligations under the

Contract.

37. The total costs of investigation incurred by the

Department in this case, excluding costs associated with any

attorney time, was $342.42.

CONCLUSIONS OF LAW

A. Jurisdiction .

38. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

B. The Burden and Standard of Proof .

39. The Department seeks to impose penalties against Mr.

Ringold through the Administrative Complaint that include

mandatory and discretionary suspension or revocation of his

roofing contractor’s license. Therefore, the Department has the

burden of proving the specific allegations of fact that support

its charges by clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

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

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

Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

DCA 1998).

40. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear 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 or 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).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Charges of the Administrative Complaint .

41. Section 489.129, Florida Statutes, provides that

disciplinary action may be taken against a certificateholder,

registrant, or licensee if it is found that the individual has

committed certain enumerated offenses.

42. In this matter, it has been alleged that Respondent

committed the offenses described in Section 489.129(1)(g)2.,

(i), (j) and (m), Florida Statutes, which provides:

(1) 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, financially responsible officer,

or business organization for which the

contractor is a primary qualifying agent, a

financially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 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

. . . .

(i) Failing in any material respect to

comply with the provisions of this part or

violating a rule or lawful order of the

board.

(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.

43. Because of their penal nature, the foregoing statutory

provisions must be strictly construed, with any reasonable

doubts as to their meaning being resolved in favor of the

certificateholder or registrant. See Jonas v. Florida

Department of Business and Professional Regulation , 746 So. 2d

1261, 1262 (Fla. 3d DCA 2000)("[S]tatutes 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. 3d 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.'").

44. As the primary qualifying agent for Alpha, Mr. Ringold

is jointly and equally responsible for all business operations

of Alpha. See § 489.1195(1)(a), Fla. Stat.

D. Count I; Section 489.129(1)(i), Florida Statutes .

45. With regard to the alleged violation of Section

489.129(1)(i), Florida Statutes, the Department has alleged that

this provision was violated by Mr. Ringold due to his failure to

comply with Section 489.126(2)(a), Florida Statutes, which

provides:

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

46. The evidence proved clearly and convincingly, that

Mr. Ringold did not apply for any permit necessary to perform

the work on the Residence within 30 days after Mr. Fons paid

Alpha $13,600, well in excess of 10 percent of the contract

price.

47. The evidence proved clearly and convincingly that

Mr. Ringold violated Section 489.129(1)(i), Florida Statutes, by

failing to comply with Section 489.126(2)(a), Florida Statutes.

E. Counts II, III, and IV; Sections 489.129(1)(g)2., (j),

and (m), Florida Statutes .

48. The violations alleged in Counts II and III

essentially turn on the issue of whether Alpha abandoned the

construction project it agreed to carry out on the Residence for

Mr. Fons. Whether Mr. Ringold is also guilty of the violation

alleged in Count IV also depends, at least in part, on whether

Alpha abandoned the construction project.

49. First, Count II alleges that Mr. Ringold violated

Section 489.129(1)(g)2., Florida Statutes, by committing

mismanagement or misconduct in the practice of contracting that

caused financial harm to a customer. Financial mismanagement or

misconduct are specifically defined to include the abandonment

of a job when the percentage of the job completed is less than

the percentage of the contract price paid, “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.”

50. Count III alleges that Mr. Ringold violated Section

project in which the contractor is engaged or under contract as

a contractor.” This provision goes on to provided that “[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 .” (Emphasis added).

51. The facts in this case are not easily resolved. The

evidence proved that, although six months passed from the date

of the Contract without any construction for at least the period

between January and July 17, 2006, the delays were ultimately

acquiesced to by both parties and the Contract was renegotiated.

Consequently, there was no abandonment during that period of

time.

52. After the Contact was renegotiated, the evidence

clearly proved that no construction of any kind occurred after

the permit was finally obtained until February 2007, a period of

five months, when the work was performed by another contractor.

Mr. Ringold argues that there was “just cause” for this delay

and, therefore, no abandonment. While it is true that Mr. Fons

had demanded a return of his deposit in August and that

Mr. Ringold wrote to Mr. Fons in early September indicating he

was ready to proceed, the evidence failed to prove that indeed

he had the necessary materials to proceed on the project. While

Mr. Ringold testified that the materials were available, that

testimony is not credited for the reasons argued by Petitioner

in its proposed order and because that testimony is inconsistent

with Mr. Ringold’s testimony that, when supplies come in, they

are delivered directly to the construction site. More

importantly, given all the facts and circumstances of this

matter, the evidence supports a finding and conclusion that

Mr. Ringold should have done more. He should have gone to

Mr. Fons, permit in hand and with the supplies delivered (or at

least proof that they had been delivered) and convinced Mr. Fons

that Alpha was therefore finally ready to proceed. Writing one

letter simply was not enough.

53. In light of the foregoing, it is concluded that

Mr. Ringold abandoned the project without “just cause” to do so.

54. The evidence also proved that, when the project was

abandoned, the percentage of the job completed (zero) was less

that the percentage of the contract price paid (50%), and that,

even if Alpha was entitled to retain 30% of the contract price,

which the evidence does not support, Alpha had no right under

the Contract to retain the other 20% of the deposit. The

abandonment, therefore, caused financial harm to Mr. Fons. The

evidence, therefore proved, that Mr. Ringold is in violation of

Section 489.129(1)(g)2., Florida Statutes, as alleged in Count

II of the Administrative Complaint.

55. The evidence also clearly and convincingly proved that

Mr. Ringold is in violation of Section 489.129(1)(j), Florida

Statutes.

56. Finally, Count IV alleges that Mr. Ringold committed

“incompetency or misconduct in the practice of contracting” in

violation of Section 489.129(1)(m), Florida Statutes. In

Petitioner’s Proposed Recommended Order, Petitioner alleges that

Mr. Ringold is guilty of incompetency or misconduct in his

practice of contacting because of the violations of Counts I,

II, and III.

57. In support of this position, the Department cites

Florida Administrative Code Rule 61G4-17.001(1)(m)2., which

provides that misconduct or incompetency includes the violation

of any provision of Chapter 489, Part I, Florida Statutes.

Thus, the Department argues, by having violated Section

guilty of misconduct or incompetency in his practice of

contracting.

58. It having been found that Mr. Ringold has committed

the violations alleged in Counts I, II, and III, Mr. Ringold is

in violation of Section 489.129(1)(m), Florida Statutes, as

alleged in Count IV.

F. The Appropriate Penalty .

59. The only issue remaining for consideration is the

appropriate disciplinary action which should be taken against

Mr. Ringold for the violations that were proven by the

Department. To answer this question it is necessary to consult

the "disciplinary guidelines" of the Board. Those guidelines

are set forth in Florida Administrative Code Chapter 61G4-17,

and they effectively place restrictions and limitations on the

exercise of the Board’s 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 mitigating or aggravating circumstances upon

which the recommended penalty is based.”).

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

Board has announced the "Normal Penalty Ranges" within which its

disciplinary action against contractors will fall, absent

aggravating or mitigating circumstances, for specified

violations.

61. Violations of Section 489.129(1)(g)2., (i), (j), and

(m), Florida Statutes, are specifically addressed in Subsection

(1) of Florida Administrative Code Rule 61G4-17.001, which

provides the following "Normal Penalty Ranges" for such

violations:

P E N A L T Y R A N G E

V I O L A T I O N M I N I M U M M A X I M U M

(g) Section

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

Mismanagement or

misconduct causing $1,500 fine $5,000 fine and/or

financial harm to the and/or probation probation or

customer. or suspension. suspension.

FIRST OFFENSE $2,500 fine $10,000 fine and

and/or probation revocation.

REPEAT OFFENSE

o r s u s p e n s i o n .

(i) Section Use penalty Use penalty herein

489.129(1)(i), F.S.: herein listed listed for the

Failing in any material for the violation most

respect to comply with violation most closely resembling

the provisions of Part closely the act underlying

I of Chapter 489, F.S. resembling the the local

act underlying discipline;

the local

discipline;

(j) Section

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

Abandonment. $2,500 fine $7,500 fine and/or

FIRST OFFENSE and/or probation probation or

or suspension. suspension.

REPEAT OFFENSE $5,000 fine $10,000 fine and

and/or probation revocation.

or suspension.

(m) Misconduct or

incompetency in the

practice of

contracting, shall

include, but is not $1,000 fine $5,000 fine and/or

limited to: and/or probation probation or

1. Failure to honor a or suspension. suspension.

warranty. $2,500 fine $10,000 fine and

FIRST OFFENSE and/or probation revocation.

or suspension.

REPEAT OFFENSE

2. Violation of any

provision of Chapter

61G4, F.A.C., or $1,000 fine $2,500 fine and/or

Chapter 489, Part I, and/or probation probation or

F.S. or suspension. suspension.

FIRST OFFENSE $2,500 fine $10,000 fine and

and/or probation suspension or

REPEAT OFFENSE or suspension. revocation.

62. Pursuant to Florida Administrative Code 61G4-

17.001(6), where no penalty range has been provided for a

violation, the guideline penalty for an offense most closely

related to the offense should be followed. There is not penalty

guideline for a violation of Section 489.129(1)(i), Florida

Statutes. The Department has reasonably suggested application

of the following guideline:

(o) Section

489.129(1)(o), F.S.:

Proceeding on any job

without obtaining

applicable local

building department

permits and/or

inspections.

1. Late permits. $250 fine. $3,000 fine and/or

Contractor pulls permit probation.

after starting job but

prior to completion of

same and does not miss

any inspections.

63. Florida Administrative Code Rule 61G4-17.002 lists

"Aggravating and Mitigating circumstances" to be considered in

determining whether a departure from the "Normal Penalty Range"

is warranted in a particular case. These aggravating and

mitigating circumstances include 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 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 penalty upon the

licensee's livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

64. In Petitioner’s Proposed Recommended Order, the

Department has reasonably suggested that there is an aggravating

circumstance in this case: the monetary damage to Mr. Fons.

While the Department acknowledges that Mr. Ringold had not

previously been found in violation, the Department has argued

that, due to the aggravating circumstance in this case, the

guidelines for a repeat offense should be followed. The

penalties suggested by the Department however, do not appear to

be consistent with this suggestion.

65. Based upon all the facts of this case, it is concluded

that the bottom to middle of the penalty range for the various

violations for a first offense are adequate. Additionally, it

is concluded that imposing any fine for the violation of Section

489.129(1)(m), Florida Statutes, ignores the fact that the

violation is a technical one, predicated solely upon the other

three violations. To impose a fine for this violation, would,

therefore, punish Mr. Ringold twice for the same act.

66. In addition to any penalty imposed upon Mr. Ringold,

Florida Administrative Code Rule 61G4-17.001(5), provides that

“the board shall order the contractor to make restitution in the

amount of financial loss suffered by the consumer to the extent

that such order does not contravene federal bankruptcy law.”

That amount is $13,600.00 in this case.

67. Finally Florida Administrative Code Rule 61G4-

17.001(4) provides that, in addition to any other disciplinary

action it may impose, the Board will also "assess the costs of

investigation and prosecution, excluding costs related to

attorney time."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

that Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc.,

violated the provisions of Section 489.129(1)(g)2., (i), (j),

and (m), Florida Statutes, as alleged in Counts I, II, III, and

IV of the Administrative Complaint; imposing fines of $1,500.00

for Count I, $500.00 for Count II, and $2,500.00 for Count III;

requiring that Mr. Ringold make restitution to Mr. Fons in the

amount of $13,600.00; requiring that Mr. Ringold pay the costs

incurred by the Department in investigating and prosecuting this

matter; and placing Mr. Ringold’s license on probation for a

period of one year, conditioned upon his payment of the fines,

restitution to Mr. Fons, payment of the costs incurred by the

Department, and any other conditions determined to be necessary

by the Board.

DONE AND ENTERED this 10th day of February, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

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 February, 2009.

COPIES FURNISHED:

Brian P. Coats, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

Paul Buschmann, Esquire

Hinshaw & Culbertson, LLP

One East Broward Boulevard, Suite 1010

Fort Lauderdale, Florida 33301

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional 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 this case.