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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 08-4491

31)

32DOUGLAS J. RINGOLD, JR., d/b/a ALPHA RESTORATION, INC., )

41)

42)

43Respondent. )

45)

46RECOMMENDED ORDER

48Pursuant to notice, a formal hearing was held in this case

59before Larry J. Sartin, an Administrative Law Judge of the

69Division of Administrative Hearings, on November 12, 2008, by

78video teleconference at sites in Lauderdale Lakes and

86Tallahassee, Florida.

88APPEARANCES

89For Petitioner: Brian Coats

93Assistant General Counsel

96Department of Business and

100Professional Regulation

1021940 North Monroe Street

106Tallahassee, Florida 32399

109For Respondent: Paul Buschmann, Esquire

114Hinshaw & Culbertson, LLP

118One East Broward Boulevard, Suite 1010

124Fort Lauderdale, Florida 33301

128STATEMENT OF THE ISSUES

132The issues in this case are whether Respondent, Douglas J.

142Ringold, Jr., d/b/a Alpha Restoration, Inc., committed the

150offenses alleged in a four-count Administrative Complaint filed

158with Petitioner, the Department of Business and Professional

166Regulation, on January 4, 2008, and, if so, what penalty should

177be imposed.

179PRELIMINARY STATEMENT

181In December 2007 Petitioner issued a four-count

188Administrative Complaint in DBPR Case No. 2006-050524, alleging

196that Respondent had violated certain statutory provisions

203governing the conduct of individuals in Florida licensed by the

213Construction Industry Licensing Board. In particular, it is

221alleged in the Administrative Complaint that Respondent violated

229Section 489.129(1)(i), Florida Statutes, by “failing in any

237material respect to comply with the provisions of this part or

248violating a rule or lawful order of the board,” by violating

260Section 489.126(2)(a), Florida Statutes (Count I); Section

267489.129(1)(g)2., Florida Statutes, “by committing mismanagement

273or misconduct in the practice of contracting that causes

282Florida Statutes, “by abandoning a construction project in which

291the contractor is engaged or under contract as a contractor”

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

309committing incompetency or misconduct in the practice of

317contracting” (Count IV).

320Respondent, by executing an Election of Rights form,

328disputed the factual allegations of the Administrative Complaint

336and requested “a hearing before an administrative law judge

345before the Division of Administrative Hearings” pursuant to

353Section 120.57(1), Florida Statutes.

357A copy of the Administrative Complaint and Election of

366Rights form were filed with the Division of Administrative

375Hearings on September 16, 2008. The matter was designated DOAH

385Case No. 08-4491PL and was assigned to the undersigned.

394The final hearing was scheduled for November 12, 2008, by

404Notice of Hearing entered September 23, 2008. By Amended Notice

414of Hearing by Video Teleconference, the hearing was scheduled to

424be heard by video teleconferencing between sites in Lauderdale

433Lakes and Tallahassee, Florida.

437At the final hearing, Petitioner presented the testimony of

446Raul Chinaya (Petitioner spelled Mr. Chinaya’s name “Chinea”

454and, in the Transcript, his name is spelled “China.” On page 15

466of the Transcript, however, the witness spelled his name “Chi-

476nay-a”), and Jose Fons. Petitioner also had 13 exhibits

485admitted. Respondent testified on his own behalf and had one

495exhibit admitted.

497On January 9, 2009, a Notice of Filing Transcript was

507issued informing the parties that the one-volume Transcript of

516the final hearing had been filed. The parties were also

526informed that their proposed recommended orders were to be filed

536on or before January 20, 2009.

542Petitioner filed Petitioner’s Proposed Recommended Order on

549January 20, 2009. Respondent filed Respondent’s Proposed

556Recommended Order on January 27, 2009. It does not appear that

567Petitioner has been prejudiced by Respondent’s failure to timely

576file his post-hearing submittal. Therefore, both proposed

583recommended orders have been fully considered in preparing this

592Recommended Order.

594All references to the Florida Statutes in this Recommended

603Order are to the codification applicable to the years in which

614the events alleged in the Administrative Complaint took place,

6232005 and 2006, unless otherwise noted.

629FINDINGS OF FACT

6321. Petitioner, the Department of Business and Professional

640Regulation (hereinafter referred to as the "Department"), is the

650agency of the State of Florida charged with the responsibility

660for, among other things, the licensure of individuals who wish

670to engage in contracting in the State of Florida; and the

681investigation and prosecution of complaints against individuals

688who have been so licensed. See Chs. 455 and 489, Fla. Stat.

7002. Respondent, Douglas J. Ringold, Jr., d/b/a Alpha

708Restoration, Inc., is and has been at all times material hereto

719a certified roofing contractor in Florida, having been issued

728license number CCC 1326506 by the Construction Industry

736Licensing Board (hereinafter referred to as the “Board”). At

745all times material hereto, the status of his license has been

"756Current, Active."

7583. At all times material, Mr. Ringold was certified as

768doing business as Alpha Restoration, Inc. (hereinafter referred

776to as "Alpha"), a Florida corporation.

7834. At the times material, Mr. Ringold was the qualifying

793agent for Alpha, which possesses a certificate of authority as a

804contractor qualified business in Florida, license number QB

81240272. Alpha’s license was issued May 5, 2005, and it is

823scheduled to expire August 31, 2010.

8295. On or about November 7, 2005, Alpha, through its

839employee Harry Youdell, met with Jose Fons at Mr. Fons’

849residence located at 9922 Southwest 2nd Terrace, Miami, Florida

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

867roof on the Residence. Mr. Fons had not been successful in

878obtaining approval from his insurance company for replacement of

887the hurricane-damaged roof. Alpha represented that it would

895assist Mr. Fons in negotiating with his insurance company to

905obtain approval for replacement of the roof, which Mr. Fons

915authorized, in writing, Alpha to do.

9216. On January 15, 2006, Mr. Fons and Alpha entered into a

933written agreement (hereinafter referred to as the “Contract”)

941whereby Alpha agreed to install a metal tile roof on the

952Residence in exchange for payment of $27,187.02, with possible

962increases for “additional payments & supplements,” from

970Mr. Fons. The Contract provided for a 50 percent material

980deposit to be paid to Alpha.

9867. By check dated January 15, 2006, Mr. Fons paid the

99750 percent deposit totaling $13,600.00 to Alpha.

10058. At the time the Contract was entered into, Alpha told

1016Mr. Fons that a permit would be applied for the following week

1028and that construction would commence in February. Although

1036there was unsubstantiated hearsay that Mr. Fons was informed

1045that the metal tile roof Mr. Fons was purchasing had not been

1057approved for use in Miami-Dade County, Mr. Fons credibly denied

1067being so informed. The credible, non-hearsay evidence supports

1075a finding that Mr. Fons was not immediately informed that metal

1086tile roofs were not authorized in Miami-Dade County.

10949. Despite not providing written or verbal authorization

1102to Alpha to wait more than 30 days after execution of the

1114Contract to apply for the permit for the roof work, no permit

1126was applied for by Alpha for the Residence roof work within

113730 days after January 15, 2006. Nor did Alpha commence work of

1149any kind on the project in January or February 2006.

115910. During the first week of March, having heard nothing

1169more from Alpha, Mr. Fons called Alpha and inquired about the

1180status of the project. Mr. Fons was told by Mr. Youdell that

1192the metal tile roof had not been approved by the Miami-Dade

1203Building Department (hereinafter referred to as the “Building

1211Department”). Mr. Youdell told Mr. Fons it would take another

122130 days to obtain a permit.

122711. As of April 2006, Alpha had not commenced work or

1238contacted Mr. Fons. Therefore, Mr. Fons called and spoke to

1248Mr. Youdell about the status of the project. Mr. Fons was again

1260told that the metal tile roof had not been approved and that

1272testing of the roof would take another 30 days.

128112. In fact, Alpha had not made application for any permit

1292for the Residence roof job through April 2006. On May 11, 2006,

1304approximately 114 days after receiving Mr. Fons’ deposit, Alpha

1313finally submitted an application for the permit with the

1322Building Department. The application was designated C2006169450

1329by the Building Department.

133313. In May 2006, Mr. Fons again contacted Alpha to inquire

1344about the project, since no work had been started and he had not

1357heard from Alpha. For the third time, Alpha told Mr. Fons that

1369the roof had not gained approval from the Building Department

1379and that another 30 days was needed.

138614. In June 2006, Mr. Fons again contacted Alpha. Work on

1397his roof had not started and he had not heard from Alpha. Not

1410surprisingly, Mr. Fons was told for the fourth time that the

1421roof had not gained approval and there would be another 30-day

1432delay.

143315. Mr. Fons, who was becoming frustrated with the delay,

1443visited the Building Department and inquired about the project.

1452He learned that Alpha had not applied for a permit until May

14642006 and was told that the Building Department had “denied” it

1475on May 16, 2006. Mr. Fons was not told by the Building

1487Department that, despite the “denial,” the permit application

1496remained open.

149816. By July 2006, Alpha had still not commenced work.

1508Therefore, Mr. Fons contacted Alpha and requested a meeting to

1518discuss alternatives to the metal tile roof. Obviously,

1526Mr. Fons was aware that metal tile roofs were not approved for

1538use in Miami-Dade County since entering into the Contract.

154717. While no work had commenced from January 15, 2006,

1557when the written agreement was entered into and the deposit was

1568made, through July 2006, Mr. Fons effectively agreed to wait for

1579Alpha to attempt to gain approval for the metal tile roof from

1591the Building Department. Having obtained Mr. Fons’ approval,

1599Alpha could not have commenced work on the project through July

16102006.

161118. On July 17, 2006, Alpha, through Mr. Youdell, met with

1622Mr. Fons at the Residence. Because of the delays that had been

1634caused by the failure of Alpha to gain approval of the metal

1646tile roof from the Building Department and with assurances that

1656the contract price would be the same, Mr. Fons agreed to accept,

1668and Alpha agreed to provide, a tile roof.

167619. Alpha represented to Mr. Fons that the tile roofing

1686material was in-stock, that a permit would be obtained within a

1697week, and that construction would commence by mid-August 2006.

170620. Between July 25, 2006, approximately a week after the

1716July 17, 2006, meeting, and August 7, 2006, Mr. Fons monitored

1727the Building Department’s web-site to see if Alpha had applied

1737for a permit for the tile roof. When there was no indication

1749that the permit had been applied for, Mr. Fons called Alpha on

1761August 8, 2006. Mr. Youdell told him that the permit had been

1773applied for and it had not appeared in the computer system

1784because the Building Department was backlogged. Mr. Youdell

1792told Mr. Fons that Alpha would be at the Residence in ten days

1805to at least clean up debris.

181121. As of August 18, 2006, no new permit had been applied

1823for and no one from Alpha had been to the Residence.

1834Consequently, Mr. Fons wrote and delivered a letter by facsimile

1844addressed to Mr. Ringold, stating, in part, the following:

1853After months of dealing with you, this is my

1862formal request for a full refund of $13,600

1871paid to you January 15, 2006, with my

1879personal check #6408. Said amount was a

1886deposit for the contract for the replacement

1893of the roof at my residence located at 922

1902SW 2 Terrace, Miami, FL.

1907As you are aware of, Florida Statutes

1914489.126 demands that you apply for the

1921necessary permits within 30 days after the

1928initial payment (my payment to you on 1-15-

193606 $13,600). Please do not call me, from

1945now on all communications will be done in

1953written form.

1955If you fail to refund my deposit within 10

1964days, please be advised that I will file a

1973complaint . . . .

1978Since we are now in August, and you have not

1988commenced work at my residence, this is my

1996demand letter for a check in full refund of

2005my deposit within 10 days of receipt of this

2014letter.

201522. On August 24, 2006, after having received Mr. Fons’

2025August 18, 2006, letter, Alpha submitted an on-line application

2034for a tile roof for the Residence. The matter was designated

2045W2006262830. This permit application was not approved because

2053Alpha failed to complete the application process.

206023. When he did not receive a response to his August 18,

20722006, letter, Mr. Fons wrote a second letter to Alpha, which was

2084mailed by certified mail on or about September 4, 2006. In the

2096second letter, Mr. Fons indicated that the ten-day deadline set

2106out in his previous letter had passed without response and he

2117again requested the return of his deposit.

212424. On September 3, 2006, the original metal tile roof

2134permit application was rejected by the Building Department. On

2143September 8, 2006, the permit application, having been converted

2152from a metal roof to a tile roof, was approved and issued as

2165permit number 2006126043.

216825. On September 6, 2006, after Alpha had applied for and

2179obtained a permit, Mr. Fons finally received a written response

2189from Alpha to his August 18, 2006, letter. In the response,

2200Mr. Ringold suggests the following: “At the signing of your

2210contract you were aware that ‘Metro Steel Tile’ did not have

2221Miami Dade approval and you were willing to wait for such to be

2234approved. This made securing a permit in 30 days impossible and

2245you were completely aware of that at the time.” Mr. Ringold’s

2256understanding of Mr. Fons’ “understanding” has not been

2264substantiated by the evidence presented in this case, and is,

2274therefore, rejected.

227626. Mr. Ringold goes on to accurately suggest that

2285Mr. Fons and Alpha had modified the agreement in July, when it

2297was agreed that a tile roof would be placed on the Residence.

2309Mr. Ringold then suggests that any delay in applying for a

2320permit after July was due to the need to ensure that the tiles

2333were delivered, facts Mr. Fons was not previously apprised of.

234327. Mr. Ringold ends the letter as follows:

2351We have confirmed that your tile is acquired

2359and have applied for your permit. . . . Had

2369we been informed that you were so concerned

2377that your permit be pulled immediately we

2384would have been more than happy to do so.

2393We never worry about getting the permit in

2401Dade County as they are very effective in

2409issuing permits in a timely manner [a fact

2417which Mr. Youdell was apparently not aware

2424of, given his representation to Mr. Fons

2431that the Building Department was back

2437logged]. I do not understand the reason for

2445the letter?

2447We sincerely have always had your best

2454interest at heart, and want to proceed with

2462the install. I am confident that you will

2470be pleased with the finished product.

2476Please if you would contact me directly at .

2485. . to discuss this matter.

249128. On September 11, 2006, Mr. Fons found a copy of permit

2503number 2006126043, issued on September 8, 2006, on the door of

2514the Residence.

251629. Other than a letter from Mr. Fons to Alpha dated

2527October 23, 2006, requesting a list of subcontractors and

2536suppliers used by Alpha, there was no further correspondence

2545between Alpha and Mr. Fons. Nor did Alpha make any effort to

2557fulfill its obligations under the Contract.

256330. Ultimately, permit number 20066126043, issued

2569September 8, 2006, was cancelled based upon a February 7, 2007,

2580request from Alpha. No work took place on the project for more

2592than 90 days after the permit was issued.

260031. Based upon the foregoing, more than six months passed

2610after the Contract was entered into without any work being

2620performed by Alpha: January 15, 2006, to July 17, 2006. While

2631the evidence failed to prove that Mr. Fons was fully informed at

2643the time the Contract was entered into that the metal tile

2654roofing he had selected was not approved for use in Miami-Dade

2665County and, therefore, securing a permit would take some time to

2676acquire, he was eventually informed of these facts. Ultimately,

2685Mr. Fons acquiesced to the delay in commencing work between

2695January 15, 2006, and July 17, 2006, when Mr. Fons and Alpha

2707agreed to a modification of the Contract; in particular, to

2717replace the roof on the Residence with a tile roof. There was,

2729therefore, no “abandonment” of the project between January and

2738July 2006.

274032. Between July 17, 2006, and February 2007, a period of

2751eight months, no work was performed on the project. In fact,

2762after early September 2006 there was no meaningful communication

2771between Mr. Fons and Alpha. Viewing the evidence most favorably

2781to Alpha, Alpha had informed Mr. Fons in a letter he received on

2794September 6, 2006, that the tiles were available (the evidence

2804failed to substantiate this claim; if the tiles had been

2814“available” they would have been delivered directly to the

2823Residence), the permit had been obtained, Alpha indicated its

2832willingness to fulfill its obligation, and Alpha attempted to

2841place the ball in Mr. Fons’ court by asking that he call to

2854discuss the matter, and Mr. Fons had demanded a return of his

2866deposit.

286733. Viewing the evidence most favorably to Mr. Fons, he

2877had been waiting for eight months to have his roof repaired; he

2889had on a monthly basis had to initiate contact with Alpha and

2901every time he did, was told “it will be another 30 days”; Alpha

2914had taken until May 2006 to make its first application for a

2926permit, despite the fact that Alpha had represented to Mr. Fons

2937that the permit would be obtained in January and that work would

2949commence in February, the monthly representations that the

2957permit had been applied for but was being held up by the

2969Building Department. After renegotiating his contract, Mr. Fons

2977was again told that the permit would be pulled within a week and

2990that work would commence within a month. Despite these

2999representations, no permit was applied for until after his

3008August 18, 2006, letter was received and that permit was never

3019approved. When Mr. Fons did finally complain and request the

3029return of his deposit, although it had only been a month since

3041renegotiating the type of roof to be placed on the Residence,

3052Alpha did not respond until September 6, 2006, and only

3062responded after finally obtaining a permit. Given these

3070circumstances, the suggestion of Alpha that “[w]e sincerely have

3079always had your best interest at heart, and want to proceed with

3091the install” must have seemed disingenuous to Mr. Fons.

310034. Weighing the foregoing facts, it is ultimately found

3109the return of his deposit, was simply too little, too late.

3120Given the total eight-month delay in the project and all the

3131misinformation Mr. Fons had been given by Alpha, and especially

3141in light of the fact that Alpha had $13,600.00 of Mr. Fons’

3154money for which it had performed no work whatsoever, Alpha

3164should have done more to attempt to fulfill the contract.

3174Failing to do more under these circumstances constitutes an

3183abandonment of the project to the financial detriment of

3192Mr. Fons.

319435. On February 21, 2007, Mr. Fons contracted with another

3204company to install a tile roof on the Residence. Work commenced

3215February 23, 2007, and was completed March 5, 2007.

322436. Mr. Fons has suffered a loss of $13,600.00 as result

3236of Alpha’s failure to fulfill its obligations under the

3245Contract.

324637. The total costs of investigation incurred by the

3255Department in this case, excluding costs associated with any

3264attorney time, was $342.42.

3268CONCLUSIONS OF LAW

3271A. Jurisdiction .

327438. The Division of Administrative Hearings has

3281jurisdiction over the subject matter of this proceeding and of

3291the parties thereto pursuant to Sections 120.569 and 120.57(1),

3300Florida Statutes (2008).

3303B. The Burden and Standard of Proof .

331139. The Department seeks to impose penalties against Mr.

3320Ringold through the Administrative Complaint that include

3327mandatory and discretionary suspension or revocation of his

3335roofing contractor’s license. Therefore, the Department has the

3343burden of proving the specific allegations of fact that support

3353its charges by clear and convincing evidence. See Department of

3363Banking and Finance, Division of Securities and Investor

3371Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

3383Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v.

3395Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

3406DCA 1998).

340840. What constitutes "clear and convincing" evidence was

3416described by the court in Evans Packing Co. v. Department of

3427Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

3438(Fla. 1st DCA 1989), as follows:

3444. . . [C]lear and convincing evidence

3451requires that the evidence must be found to

3459be credible; the facts to which the

3466witnesses testify must be distinctly

3471remembered; the evidence must be precise and

3478explicit and the witnesses must be lacking

3485in confusion as to the facts in issue. The

3494evidence must be of such weight that it

3502produces in the mind of the trier of fact

3511the firm belief or conviction, without

3517hesitancy, as to the truth of the

3524allegations sought to be established.

3529Slomowitz v. Walker , 429 So. 2d 797, 800

3537(Fla. 4th DCA 1983).

3541See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

3554Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

3565Department of Business and Professional Regulation , 705 So. 2d

3574652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

3581C. The Charges of the Administrative Complaint .

358941. Section 489.129, Florida Statutes, provides that

3596disciplinary action may be taken against a certificateholder,

3604registrant, or licensee if it is found that the individual has

3615committed certain enumerated offenses.

361942. In this matter, it has been alleged that Respondent

3629committed the offenses described in Section 489.129(1)(g)2.,

3636(i), (j) and (m), Florida Statutes, which provides:

3644(1) The board may take any of the

3652following actions against any

3656certificateholder or registrant: place on

3661probation or reprimand the licensee, revoke,

3667suspend, or deny the issuance or renewal of

3675the certificate, registration, or

3679certificate of authority, require financial

3684restitution to a consumer for financial harm

3691directly related to a violation of a

3698provision of this part, impose an

3704administrative fine not to exceed $10,000

3711per violation, require continuing education,

3716or assess costs associated with

3721investigation and prosecution, if the

3726contractor, financially responsible officer,

3730or business organization for which the

3736contractor is a primary qualifying agent, a

3743financially responsible officer, or a

3748secondary qualifying agent responsible under

3753s. 489.1195 is found guilty of any of the

3762following acts:

3764. . . .

3768(g) Committing mismanagement or

3772misconduct in the practice of contracting

3778that causes financial harm to a customer.

3785Financial mismanagement or misconduct occurs

3790when:

3791. . . .

37952. The contractor has abandoned a

3801customer's job and the percentage of

3807completion is less than the percentage of

3814the total contract price paid to the

3821contractor as of the time of abandonment,

3828unless the contractor is entitled to retain

3835such funds under the terms of the contract

3843or refunds the excess funds within 30 days

3851after the date the job is abandoned; or

3859. . . .

3863(i) Failing in any material respect to

3870comply with the provisions of this part or

3878violating a rule or lawful order of the

3886board.

3887(j) Abandoning a construction project in

3893which the contractor is engaged or under

3900contract as a contractor. A project may be

3908presumed abandoned after 90 days if the

3915contractor terminates the project without

3920just cause or without proper notification to

3927the owner, including the reason for

3933termination, or fails to perform work

3939without just cause for 90 consecutive days.

3946. . . .

3950(m) Committing incompetency or misconduct

3955in the practice of contracting.

396043. Because of their penal nature, the foregoing statutory

3969provisions must be strictly construed, with any reasonable

3977doubts as to their meaning being resolved in favor of the

3988certificateholder or registrant. See Jonas v. Florida

3995Department of Business and Professional Regulation , 746 So. 2d

40041261, 1262 (Fla. 3d DCA 2000)("[S]tatutes such as those at issue

4016authorizing the imposition of discipline upon licensed

4023contractors are in the nature of penal statutes, which should be

4034strictly construed."); and Capital National Financial

4041Corporation v. Department of Insurance , 690 So. 2d 1335, 1337

4051(Fla. 3d DCA 1997)("Section 627.8405 is a penal statute and

4062therefore must be strictly construed: . . . . 'When a statute

4074imposes a penalty, any doubt as to its meaning must be resolved

4086in favor of a strict construction so that those covered by the

4098statute have clear notice of what conduct the statute

4107proscribes.'").

410944. As the primary qualifying agent for Alpha, Mr. Ringold

4119is jointly and equally responsible for all business operations

4128of Alpha. See § 489.1195(1)(a), Fla. Stat.

4135D. Count I; Section 489.129(1)(i), Florida Statutes .

414345. With regard to the alleged violation of Section

4152489.129(1)(i), Florida Statutes, the Department has alleged that

4160this provision was violated by Mr. Ringold due to his failure to

4172comply with Section 489.126(2)(a), Florida Statutes, which

4179provides:

4180A contractor who receives, as initial

4186payment, money totaling more than 10 percent

4193of the contract price for repair,

4199restoration, improvement, or construction to

4204residential real property must:

4208(a) Apply for permits necessary to do

4215work within 30 days after the date payment

4223is made, except where the work does not

4231require a permit under the applicable codes

4238and ordinances

424046. The evidence proved clearly and convincingly, that

4248Mr. Ringold did not apply for any permit necessary to perform

4259the work on the Residence within 30 days after Mr. Fons paid

4271Alpha $13,600, well in excess of 10 percent of the contract

4283price.

428447. The evidence proved clearly and convincingly that

4292Mr. Ringold violated Section 489.129(1)(i), Florida Statutes, by

4300failing to comply with Section 489.126(2)(a), Florida Statutes.

4308E. Counts II, III, and IV; Sections 489.129(1)(g)2., (j),

4317and (m), Florida Statutes .

432248. The violations alleged in Counts II and III

4331essentially turn on the issue of whether Alpha abandoned the

4341construction project it agreed to carry out on the Residence for

4352Mr. Fons. Whether Mr. Ringold is also guilty of the violation

4363alleged in Count IV also depends, at least in part, on whether

4375Alpha abandoned the construction project.

438049. First, Count II alleges that Mr. Ringold violated

4389Section 489.129(1)(g)2., Florida Statutes, by committing

4395mismanagement or misconduct in the practice of contracting that

4404caused financial harm to a customer. Financial mismanagement or

4413misconduct are specifically defined to include the abandonment

4421of a job when the percentage of the job completed is less than

4434the percentage of the contract price paid, “unless the

4443contractor is entitled to retain such funds under the terms of

4454the contract or refunds the excess funds within 30 days after

4465the date the job is abandoned.”

447150. Count III alleges that Mr. Ringold violated Section

4480project in which the contractor is engaged or under contract as

4491a contractor.” This provision goes on to provided that “[a]

4501project may be presumed abandoned after 90 days if the

4511contractor terminates the project without just cause or without

4520proper notification to the owner, including the reason for

4529termination, or fails to perform work without just cause for 90

4540consecutive days .” (Emphasis added).

454551. The facts in this case are not easily resolved. The

4556evidence proved that, although six months passed from the date

4566of the Contract without any construction for at least the period

4577between January and July 17, 2006, the delays were ultimately

4587acquiesced to by both parties and the Contract was renegotiated.

4597Consequently, there was no abandonment during that period of

4606time.

460752. After the Contact was renegotiated, the evidence

4615clearly proved that no construction of any kind occurred after

4625the permit was finally obtained until February 2007, a period of

4636five months, when the work was performed by another contractor.

4646Mr. Ringold argues that there was “just cause” for this delay

4657and, therefore, no abandonment. While it is true that Mr. Fons

4668had demanded a return of his deposit in August and that

4679Mr. Ringold wrote to Mr. Fons in early September indicating he

4690was ready to proceed, the evidence failed to prove that indeed

4701he had the necessary materials to proceed on the project. While

4712Mr. Ringold testified that the materials were available, that

4721testimony is not credited for the reasons argued by Petitioner

4731in its proposed order and because that testimony is inconsistent

4741with Mr. Ringold’s testimony that, when supplies come in, they

4751are delivered directly to the construction site. More

4759importantly, given all the facts and circumstances of this

4768matter, the evidence supports a finding and conclusion that

4777Mr. Ringold should have done more. He should have gone to

4788Mr. Fons, permit in hand and with the supplies delivered (or at

4800least proof that they had been delivered) and convinced Mr. Fons

4811that Alpha was therefore finally ready to proceed. Writing one

4821letter simply was not enough.

482653. In light of the foregoing, it is concluded that

4836Mr. Ringold abandoned the project without “just cause” to do so.

484754. The evidence also proved that, when the project was

4857abandoned, the percentage of the job completed (zero) was less

4867that the percentage of the contract price paid (50%), and that,

4878even if Alpha was entitled to retain 30% of the contract price,

4890which the evidence does not support, Alpha had no right under

4901the Contract to retain the other 20% of the deposit. The

4912abandonment, therefore, caused financial harm to Mr. Fons. The

4921evidence, therefore proved, that Mr. Ringold is in violation of

4931Section 489.129(1)(g)2., Florida Statutes, as alleged in Count

4939II of the Administrative Complaint.

494455. The evidence also clearly and convincingly proved that

4953Mr. Ringold is in violation of Section 489.129(1)(j), Florida

4962Statutes.

496356. Finally, Count IV alleges that Mr. Ringold committed

4972“incompetency or misconduct in the practice of contracting” in

4981violation of Section 489.129(1)(m), Florida Statutes. In

4988Petitioner’s Proposed Recommended Order, Petitioner alleges that

4995Mr. Ringold is guilty of incompetency or misconduct in his

5005practice of contacting because of the violations of Counts I,

5015II, and III.

501857. In support of this position, the Department cites

5027Florida Administrative Code Rule 61G4-17.001(1)(m)2., which

5033provides that misconduct or incompetency includes the violation

5041of any provision of Chapter 489, Part I, Florida Statutes.

5051Thus, the Department argues, by having violated Section

5059guilty of misconduct or incompetency in his practice of

5068contracting.

506958. It having been found that Mr. Ringold has committed

5079the violations alleged in Counts I, II, and III, Mr. Ringold is

5091in violation of Section 489.129(1)(m), Florida Statutes, as

5099alleged in Count IV.

5103F. The Appropriate Penalty .

510859. The only issue remaining for consideration is the

5117appropriate disciplinary action which should be taken against

5125Mr. Ringold for the violations that were proven by the

5135Department. To answer this question it is necessary to consult

5145the "disciplinary guidelines" of the Board. Those guidelines

5153are set forth in Florida Administrative Code Chapter 61G4-17,

5162and they effectively place restrictions and limitations on the

5171exercise of the Board’s disciplinary authority . See Parrot

5180Heads, Inc. v. Department of Business and Professional

5188Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An

5199administrative agency is bound by its own rules . . . creat[ing]

5211guidelines for disciplinary penalties."); and § 455.2273(5),

5219Fla. Stat. ("The administrative law judge, in recommending

5228penalties in any recommended order, must follow the penalty

5237guidelines established by the board or department and must state

5247in writing the mitigating or aggravating circumstances upon

5255which the recommended penalty is based.”).

526160. In Florida Administrative Code Rule 61G4-17.001, the

5269Board has announced the "Normal Penalty Ranges" within which its

5279disciplinary action against contractors will fall, absent

5286aggravating or mitigating circumstances, for specified

5292violations.

529361. Violations of Section 489.129(1)(g)2., (i), (j), and

5301(m), Florida Statutes, are specifically addressed in Subsection

5309(1) of Florida Administrative Code Rule 61G4-17.001, which

5317provides the following "Normal Penalty Ranges" for such

5325violations:

5326P E N A L T Y R A N G E

5338V I O L A T I O N M I N I M U M M A X I M U M

5361(g) Section

5363489.129(1)(g), F.S.:

5365Mismanagement or

5367misconduct causing $1,500 fine $5,000 fine and/or

5376financial harm to the and/or probation probation or

5384customer. or suspension. suspension.

5388FIRST OFFENSE $2,500 fine $10,000 fine and

5397and/or probation revocation.

5400REPEAT OFFENSE

5402o r s u s p e n s i o n .

5415(i) Section Use penalty Use penalty herein

5422489.129(1)(i), F.S.: herein listed listed for the

5429Failing in any material for the violation most

5437respect to comply with violation most closely resembling

5445the provisions of Part closely the act underlying

5453I of Chapter 489, F.S. resembling the the local

5462act underlying discipline;

5465the local

5467discipline;

5468(j) Section

5470489.129(1)(j), F.S.:

5472Abandonment. $2,500 fine $7,500 fine and/or

5480FIRST OFFENSE and/or probation probation or

5486or suspension. suspension.

5489REPEAT OFFENSE $5,000 fine $10,000 fine and

5498and/or probation revocation.

5501or suspension.

5503(m) Misconduct or

5506incompetency in the

5509practice of

5511contracting, shall

5513include, but is not $1,000 fine $5,000 fine and/or

5524limited to: and/or probation probation or

55301. Failure to honor a or suspension. suspension.

5538warranty. $2,500 fine $10,000 fine and

5546FIRST OFFENSE and/or probation revocation.

5551or suspension.

5553REPEAT OFFENSE

55552. Violation of any

5559provision of Chapter

556261G4, F.A.C., or $1,000 fine $2,500 fine and/or

5572Chapter 489, Part I, and/or probation probation or

5580F.S. or suspension. suspension.

5584FIRST OFFENSE $2,500 fine $10,000 fine and

5593and/or probation suspension or

5597REPEAT OFFENSE or suspension. revocation.

560262. Pursuant to Florida Administrative Code 61G4-

560917.001(6), where no penalty range has been provided for a

5619violation, the guideline penalty for an offense most closely

5628related to the offense should be followed. There is not penalty

5639guideline for a violation of Section 489.129(1)(i), Florida

5647Statutes. The Department has reasonably suggested application

5654of the following guideline:

5658(o) Section

5660489.129(1)(o), F.S.:

5662Proceeding on any job

5666without obtaining

5668applicable local

5670building department

5672permits and/or

5674inspections.

56751. Late permits. $250 fine. $3,000 fine and/or

5684Contractor pulls permit probation.

5688after starting job but

5692prior to completion of

5696same and does not miss

5701any inspections.

570363. Florida Administrative Code Rule 61G4-17.002 lists

"5710Aggravating and Mitigating circumstances" to be considered in

5718determining whether a departure from the "Normal Penalty Range"

5727is warranted in a particular case. These aggravating and

5736mitigating circumstances include the following:

5741(1) Monetary or other damage to the

5748licensee's customer, in any way associated

5754with the violation, which damage the

5760licensee has not relieved, as of the time

5768the penalty is to be assessed. (This

5775provision shall not be given effect to the

5783extent it would contravene federal

5788bankruptcy law.)

5790(2) Actual job-site violations of

5795building codes, or conditions exhibiting

5800gross negligence, incompetence, or

5804misconduct by the licensee, which have not

5811been corrected as of the time the penalty is

5820being assessed.

5822(3) The danger to the public.

5828(4) The number of complaints filed

5834against the licensee.

5837(5) The length of time the licensee has

5845practiced.

5846(6) The actual damage, physical or

5852otherwise, to the licensee's customer.

5857(7) The deterrent effect of the penalty

5864imposed.

5865(8) The effect of the penalty upon the

5873licensee's livelihood.

5875(9) Any efforts at rehabilitation.

5880(10) Any other mitigating or aggravating

5886circumstances.

588764. In Petitioner’s Proposed Recommended Order, the

5894Department has reasonably suggested that there is an aggravating

5903circumstance in this case: the monetary damage to Mr. Fons.

5913While the Department acknowledges that Mr. Ringold had not

5922previously been found in violation, the Department has argued

5931that, due to the aggravating circumstance in this case, the

5941guidelines for a repeat offense should be followed. The

5950penalties suggested by the Department however, do not appear to

5960be consistent with this suggestion.

596565. Based upon all the facts of this case, it is concluded

5977that the bottom to middle of the penalty range for the various

5989violations for a first offense are adequate. Additionally, it

5998is concluded that imposing any fine for the violation of Section

6009489.129(1)(m), Florida Statutes, ignores the fact that the

6017violation is a technical one, predicated solely upon the other

6027three violations. To impose a fine for this violation, would,

6037therefore, punish Mr. Ringold twice for the same act.

604666. In addition to any penalty imposed upon Mr. Ringold,

6056Florida Administrative Code Rule 61G4-17.001(5), provides that

6063“the board shall order the contractor to make restitution in the

6074amount of financial loss suffered by the consumer to the extent

6085that such order does not contravene federal bankruptcy law.”

6094That amount is $13,600.00 in this case.

610267. Finally Florida Administrative Code Rule 61G4-

610917.001(4) provides that, in addition to any other disciplinary

6118action it may impose, the Board will also "assess the costs of

6130investigation and prosecution, excluding costs related to

6137attorney time."

6139RECOMMENDATION

6140Based on the foregoing Findings of Fact and Conclusions of

6150Law, it is RECOMMENDED that a final order be entered finding

6161that Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc.,

6170violated the provisions of Section 489.129(1)(g)2., (i), (j),

6178and (m), Florida Statutes, as alleged in Counts I, II, III, and

6190IV of the Administrative Complaint; imposing fines of $1,500.00

6200for Count I, $500.00 for Count II, and $2,500.00 for Count III;

6213requiring that Mr. Ringold make restitution to Mr. Fons in the

6224amount of $13,600.00; requiring that Mr. Ringold pay the costs

6235incurred by the Department in investigating and prosecuting this

6244matter; and placing Mr. Ringold’s license on probation for a

6254period of one year, conditioned upon his payment of the fines,

6265restitution to Mr. Fons, payment of the costs incurred by the

6276Department, and any other conditions determined to be necessary

6285by the Board.

6288DONE AND ENTERED this 10th day of February, 2009, in

6298Tallahassee, Leon County, Florida.

6302___________________________________

6303LARRY J. SARTIN

6306Administrative Law Judge

6309Division of Administrative Hearings

6313The DeSoto Building

63161230 Apalachee Parkway

6319Tallahassee, Florida 32399-3060

6322(850) 488-9675 SUNCOM 278-9675

6326Fax Filing (850) 921-6847

6330www.doah.state.fl.us

6331Filed with the Clerk of the

6337Division of Administrative Hearings

6341this 10th day of February, 2009.

6347COPIES FURNISHED:

6349Brian P. Coats, Esquire

6353Department of Business and

6357Professional Regulation

6359Northwood Centre

63611940 North Monroe Street, Suite 42

6367Tallahassee, Florida 32399-2022

6370Paul Buschmann, Esquire

6373Hinshaw & Culbertson, LLP

6377One East Broward Boulevard, Suite 1010

6383Fort Lauderdale, Florida 33301

6387G. W. Harrell, Executive Director

6392Construction Industry Licensing Board

6396Department of Business and

6400Professional Regulation

6402Northwood Centre

64041940 North Monroe Street

6408Tallahassee, Florida 32399-0792

6411Ned Luczynski, General Counsel

6415Department of Business and

6419Professional Regulation

6421Northwood Centre

64231940 North Monroe Street

6427Tallahassee, Florida 32399-0792

6430NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6436All parties have the right to submit written exceptions within

644615 days from the date of this Recommended Order. Any exceptions

6457to this Recommended Order should be filed with the agency that

6468will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/17/2009
Proceedings: (Agency) Final Order filed.
PDF:
Date: 07/09/2009
Proceedings: Agency Final Order
PDF:
Date: 02/10/2009
Proceedings: Recommended Order
PDF:
Date: 02/10/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/10/2009
Proceedings: Recommended Order (hearing held November 12, 2008). CASE CLOSED.
PDF:
Date: 01/27/2009
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 01/20/2009
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 01/09/2009
Proceedings: Notice of Filing Transcript.
Date: 01/09/2009
Proceedings: Transcript filed.
Date: 11/12/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/07/2008
Proceedings: Petitioner`s Pre-hearing Statement filed.
PDF:
Date: 11/06/2008
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for November 12, 2008; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to video and location).
PDF:
Date: 09/23/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/23/2008
Proceedings: Notice of Hearing (hearing set for November 12, 2008; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 09/22/2008
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 09/16/2008
Proceedings: Initial Order.
PDF:
Date: 09/16/2008
Proceedings: Election of Rights filed.
PDF:
Date: 09/16/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 09/16/2008
Proceedings: Agency referral filed.

Case Information

Judge:
LARRY J. SARTIN
Date Filed:
09/16/2008
Date Assignment:
09/23/2008
Last Docket Entry:
07/17/2009
Location:
Lauderdale Lakes, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

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