08-002398PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Gaetan Malschalck Status: Closed Recommended Order on Wednesday, August 27, 2008.

Summary: Respondent is liable for abandonment of project undertaken by company for which he was the primary qualifying agent. Recommend a penalty including a two-year license suspension, a $7,500 fine, and payment of restitution to aggrieved homeowners.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-2398PL

)

GAETAN MALSCHALCK, )

)

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

July 17, 2008, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Brian P. Coats, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint and, if so, what disciplinary action

should be taken.

PRELIMINARY STATEMENT

In December 2007, Petitioner issued a four-count

Administrative Complaint alleging that Respondent, in his

capacity as the primary qualifying agent for GM General

Contractor, Inc. (GGC), engaged in disciplinable wrongdoing in

connection with a residential construction project undertaken by

GGC pursuant to a contract with Assad and Millicent Thompson.

Count I alleged 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)2., Florida Statutes. Count II alleged that

"Respondent violated Section 489.129(1)(j), Florida Statutes, by

abandoning the construction project." Count III alleged that

"Respondent violated Section 489.129(1)(o), Florida Statutes, by

failing to obtain the necessary permits, pass all inspections

and finalize the necessary permits." Count IV alleged that

"Respondent violated Section 489.129(1)(m), Florida Statutes, by

committing incompetence or mismanagement in the practice of

contracting."

By filing with Petitioner a completed "Election of Rights"

form, Respondent requested a "Final Hearing before an

Administrative Law Judge of the Division of Administrative

Hearings." On May 19, 2008, the matter was referred to DOAH.

The hearing that Respondent requested was scheduled for

July 17, 2008. Petitioner and Respondent were provided with

written notice of the hearing in accordance with Section

120.569(2)(b), Florida Statutes. The notice was in the form of

Notice of Hearing by Video Teleconference mailed May 29, 2008,

to Petitioner's counsel of record and to Respondent .

Petitioner appeared at the hearing, which was held as

scheduled on July 17, 2008, through its counsel of record.

Respondent, on the other hand, did not make an appearance at the

hearing, either in person or through counsel or any other

authorized representative.

At the hearing, Petitioner presented the testimony of two

witnesses: Brad Brown of the Palm Beach County Planning, Zoning,

and Building Department; and Millicent Thompson. In addition, it

offered into evidence 15 exhibits (Petitioner's Exhibits 1

through 11, 13, 14, 16, and 17). All of these exhibits were

admitted.

At the close of the taking of evidence, the undersigned

established a deadline (15 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume) was

filed with DOAH on August 11, 2008.

Petitioner filed its Proposed Recommended Order on

August 8, 2008. 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:

1. Respondent is now, and has been at all times material

to the instant case, a Florida-licensed roofing contractor and

general contractor. He received his roofing contractor's

license on August 10, 2004, and his general contractor's license

on October 13, 2005.

2. At all times material to the instant case, GGC has held

a certificate of authority authorizing it to engage in

contracting in Florida through a qualifying agent.

3. At all times material to the instant case, Respondent

has been the primary qualifying agent for GGC.

4. On January 5, 2007, GGC, through Respondent, entered

into a written contract with Assad and Millicent Thompson,

agreeing, for $37,135.00, to construct a rear porch lanai

addition to the Thompsons' single family home in Royal Palm

Beach, Florida (Project).

5. The Thompsons paid GGC (by check) $11,140.50 at the

time they entered into the contract. They made three subsequent

payments to GGC (by check) totaling $21,232.50. The last of

these payments was made on or about April 17, 2007.

6. On January 9, 2007, GGC, through Respondent, applied

for a permit from the Palm Beach County Planning, Zoning, and

Building Department to perform the work it had agreed to do on

the Thompsons' home. The permit was subsequently issued.

7. In or around March of 2007, GGC began work on the

Project.

8. Dissatisfied with the progress GGC was making on the

Project, the Thompsons, on June 5, 2007, sent the following

letter to Respondent:

With reference to the delay in completing

the above construction, we are writing to

request your immediate attention.

We would like to know specifically:

- The reason for the delay[.]

- Your intention in writing as to your

estimated time of completion of [the]

specified project.

Please note we have not physically seen you

since April 19, 2007. We understand that

inspection of the roof on May 10th resulted

in certain violations and as per your

conversation with Assad [Mr. Thompson] (when

he called you on May 20th), you had problems

contacting the Engineer. Please note that

his name, telephone and fax are clearly

indicated on the plan[s]. Per telephone

conversation with him, he has not heard from

you recently. You have indicated impatience

and anxiety on our part, quite frankly the

patience of JOB would have run out long ago.

The pile of rubbish is a breeding room for

all kinds of creatures and has been a

disgusting sight not only for us, but for

our neighbors. The open roof has created a

vulnerable situation for us and can only

deteriorate as we are now in hurricane

season.

We urge you to contact us urgently with your

plan of action.

9. Not having received a written response from Respondent,

the Thompsons, on June 25, 2007, sent a follow-up letter to

Respondent, which read as follows

We note that you have ignored our previous

letter of June 5th and you have also failed

to honor your telephone promises of June 8th

and June 19th to proceed with

stucco/electric/rubbish removal etc. In

fact absolutely nothing has been done on

this job since May 18th. This is totally

unacceptable. We have arrangements in place

for use of the patio July 14th, cancellation

of which will result in serious

inconvenience for us.

Please be advised that if no progress is

made by June 30, 2007, we will be forced to

seek all measures at our disposal to have

the patio satisfactorily completed. We once

again request your urgent co-operation in

this matter.

10. The next day, June 26, 2007, the Thompsons received a

letter from Respondent (sent by facsimile transmission)

acknowledging his receipt of the Thompsons' June 25, 2007,

letter. In his letter, Respondent explained that he was "in a

bad situation financially" due to circumstances "out of [his]

control" related to another project, and he asked the Thompsons

to "help [him] resolve[] this matter" by paying the "stucco man"

$1,000.00 for materials and an additional $1,000.00 "when [the

stucco work] was completed," as well as paying $400.00 for a

dumpster to be brought to the Project site (which payments would

go towards the monies the Thompsons had to pay for the Project

under their contract with GGC).

11. The Thompsons wrote back to Respondent that same day

(June 26, 2007), advising him that they would pay for the

materials for the stucco work "upon presentation of the invoice,

then pay $1,000 for the job on completion as [Respondent had]

requested," and that they also would "pay the dumpster charges

on completion of the clean-up."

12. Ernest Joseph was the "stucco man" that GGC sent to

the Thompsons' home to work on the Project. He last worked on

the Project in mid-July 2007. The Thompsons paid Mr. Joseph (by

check) a total of $2,000.00 for labor and materials. They also

paid Onyx Waste Services (by check) $416.91 to have a dumpster

brought to the Project site.

13. Neither GGC, nor anyone acting on its behalf, did any

work on the Project after Mr. Joseph left the site in mid-July

2007. The Project was incomplete when the work ceased. 2

14. GGC provided the Thompsons no explanation for the

stoppage. In fact, the Thompsons did not hear from GGC at all.

15. The Thompsons were anxious for the Project to be

completed, and they did nothing to prevent GGC from

accomplishing this objective.

16. After more than 90 consecutive days had passed without

any work having been done on the Project, the Thompsons hired

another contractor to finish the Project.

17. The Project was ultimately completed.

18. The Thompsons paid $17,540.00 for the additional work

that was necessary to complete the Project.

19. The total amount that the Thompsons paid for the

Project was $52,329.91 ($32,373 to GGC; $2,000 to Mr. Joseph;

$416.91 to Onyx Waste Services; and $17,540.00 to finish the

work GGC had failed to do). This was $15,194.91 more than the

contract price.

20. Petitioner has incurred a total of $182.90 in

investigative and prosecutorial costs in connection with the

instant case (excluding costs associated with any attorney's

time).

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the subject matter of the

instant proceeding and of the parties hereto pursuant to Chapter

120, Florida Statutes.

22. No "person" 3 may engage in the business of contracting

in Florida without holding a valid license to do so.

§ 489.115(1), Fla. Stat.

23. A business organization, like GGC, 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 983, 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, Construction Industry Licensing Board ,

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.").

24. 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 GGC.

25. "All primary qualifying 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 specific 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 which

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

company 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

intent 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).

26. The Construction 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 contractor . . . 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 violation was committed.

Hunt v. Department of Professional Regulation, Construction

Industry Licensing Board , 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 489.129, Florida Statutes (1999) for work

not performed, or poorly performed, pursuant to building permits

he never signed. 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 Industry Licensing Board to govern the industry

and protect the public.").

27. At the time of the alleged misconduct in the instant

case, the disciplinary action the Board was statutorily

authorized to take against a licensed contractor for a violation

of Section 489.129(1), Florida Statutes, was limited to the

following: revoking or suspending the contractor's license;

placing the contractor on probation; reprimanding the

contractor; denying the renewal of the contractor's license;

imposing an administrative fine not to exceed $10,000.00 per

violation; requiring financial restitution to the victimized

consumer(s); requiring the contractor to take continuing

education courses; and assessing costs associated with the

investigation and prosecution. 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 arise controls."); and Department of

Environmental Regulation v. Puckett Oil Co. , 577 So. 2d 988, 992

(Fla. 1st DCA 1991)("[A]n agency possesses no inherent power to

impose sanctions, and . . . any such power must be expressly

delegated by statute.").

28. The Board may take such disciplinary action only 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. See

§ 120.60(5), Fla. Stat.

29. An evidentiary hearing must be held, if requested by

the licensee, when there are disputed issues of material fact.

§§ 120.569 and 120.57(1), Fla. Stat.

30. 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 required. 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.

based upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

31. 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. 4th DCA

1983); see also In re Adoption of Baby E. A. W. , 658 So. 2d 961,

967 (Fla. 1995)("The evidence [in order to be clear and

convincing] must be sufficient to convince the trier of fact

without hesitancy."). "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).

32. 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 Trevisani

v. Department of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA

2005); Aldrete v. Department of Health, Board of Medicine , 879

So. 2d 1244, 1246 (Fla. 1st DCA 2004); and Shore Village

Property Owners' Association, Inc. v. Department of

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

2002).

33. The charging instrument in the instant case, the

Administrative Complaint, contains four counts: Count I,

alleging a violation of Section 489.129(1)(g)2, Florida

Statutes; Count II, alleging a violation of Section

489.129(1)(j), Florida Statutes; Count III, alleging a violation

of Section 489.129(1)(o), Florida Statutes; and Count IV,

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

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

that the following were disciplinable 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.

* * *

(o) Proceeding on any job without obtaining

applicable local building department permits

and inspections.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

35. 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."

36. 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 Camejo v. Department of Business and

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

2002)("'Statutes 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 Jonas v. Florida Department of Business and

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

2000)(same).

37. The Department proved by clear and convincing evidence

that, as alleged in Count II of the Administrative Complaint,

GGC committed a violation of Section 489.129(1)(j), Florida

Statutes, for which Respondent, as GGC's "primary qualifying

agent," was responsible, by failing to perform work on the

Project without just cause for in excess of 90 consecutive days.

38. Through the same proof that clearly and convincingly

established the violation of Section 489.129(1)(j), Florida

Statutes, alleged in Count II of the Administrative Complaint,

the Department also clearly and convincingly established the

derivative violation of Section 489.129(1)(m), Florida Statutes,

alleged in Count IV of the Administrative Complaint. This

violation of Section 489.129(1)(m), however, is "subsumed" in

the violation of Section 489.129(1)(j) and cannot be separately

punished. 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 3, 2003); cf . State v. Weller , 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.")

39. The Department did not clearly and convincingly prove

Respondent's guilt of the violations alleged in Counts I and III

of the Administrative Complaint. 4

40. The lone issue remaining for consideration is what

disciplinary action should be taken against Respondent for his

violation of Section 489.129(1)(j), Florida Statutes. To answer

this question it is necessary to consult the Board's

"disciplinary guidelines" set forth Florida Administrative Code

Chapter 61G4-17, which impose restrictions and limitations 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 mitigating 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. Singletary , 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 Transportation , 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).

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

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

which its disciplinary action against contractors will fall,

absent aggravating or mitigating circumstances, for specified

violations.

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

Administrative Code Rule 61G4-17.001 has provided, in pertinent

part, that for a "first offense" of Section 489.129(1)(j),

Florida Statutes, 5 a violator could expect, absent aggravating or

mitigating circumstances, to receive a penalty ranging from a

"minimum" of a "$2,500 fine and/or probation, or suspension" to

a maximum of a "$7,500 fine and/or probation, or suspension."

Furthermore, it has given notice of the Board's additional

authority to "assess the costs of investigation and prosecution"

and "order the contractor to make restitution in the amount of

financial loss suffered by the consumer."

43. Florida Administrative Code Rule 61G4-17.002 lists

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

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

[r]ange" is warranted in a particular case. At all times

material to the instant case, these "[a]ggravating and

[m]itigating circumstances" have included 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.

44. As the Department points out in its Proposed

Recommended Order, there is an aggravating circumstance present

in the instant case in that GGC's unlawful abandonment of the

Project caused the Thompsons to have pay $15,194.91 more than

the contract price for the completion of the Project.

45. Having considered the facts of the instant case

(including the foregoing aggravating circumstance) in light of

the pertinent and applicable provisions of Florida

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

undersigned that the following is the appropriate disciplinary

action that should be taken against Respondent in the instant

case for his violation of Section 489.129(1)(j), Florida

Statutes: (1) suspend his licenses for a period of two years;

(2) fine him $7,500.00; 6 (3) require him to pay restitution in

the amount of $15,194.91 to the Thompsons; and (4) order him to

reimburse the Department $182.90 for investigative and

prosecutorial costs.

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 Section 489.129(1)(j)

and (m), as alleged in Counts II and IV, respectively, of the

Administrative Complaint; (2) suspending his license for a

period of two years; (3) fining him $7,500.00; (4) requiring him

to pay restitution in the amount of $15,194.91 to the Thompsons;

(4) ordering him to reimburse the Department $182.90 for

investigative and prosecutorial costs; and (5) dismissing Counts

I and III of the Administrative Complaint.

DONE AND ENTERED this 27th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of August, 2008.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2007).

2 It is unclear from the evidence presented at hearing whether,

at the time GGC stopped working on the Project, the percentage

of completion was less than the percentage of the total contract

price the Thompsons had paid GGC.

3 A "person," as that term is used in Florida Statutes,

"includes individuals, children, firms, associations, joint

adventures, partnerships, estates, trusts, business trusts,

syndicates, fiduciaries, corporations, and all other groups or

combinations." § 1.01(3), Fla. Stat.

4 Nowhere in its Proposed Recommended Order does the Department

argue that it presented such clear and convincing proof.

5 There is no record evidence that Respondent has been

previously disciplined by the Board.

6 Fining Respondent, in addition to suspending his licenses,

would be outside the "[n]ormal [p]enalty [r]ange" for a first

time violation of Section 489.129(1)(j), Florida Statutes. (The

"[n]ormal [p]enalty [r]ange" for such a violation is a fine (up

to $7,500.00) and/or probation, or a suspension.) An upward

departure from this "[n]ormal [p]enalty [r]ange," of the

magnitude recommended by the undersigned, is warranted in the

instant case because of the monetary harm suffered by the

Thompsons as a result of Respondent's violation. An upward

departure of any greater magnitude, however, in the opinion of

the undersigned, would be unjustifiable in light of the

apparently isolated nature of Respondent's wrongdoing.

Accordingly, the undersigned has declined to follow the

suggestion made by the Department in its Proposed Recommended

Order that the undersigned recommend that Respondent's licenses

be revoked and that he be fined a total of $10,000.00.

COPIES FURNISHED :

Brian P. Coats, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Gaetan Malschalck

2510 Southwest 12th Street

Boynton Beach, Florida 33426

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.