13-000238PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Mark Anthony Mcguire Status: Closed Recommended Order on Wednesday, May 29, 2013.

Summary: Petitioner proved that Respondent accepted a 30% deposit and did not apply for a permit within the timeframe required by statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0238PL

)

MARK ANTHONY MCGUIRE , )

)

Respondent . )

)

RECOMMENDED ORDER

On March 28, 2013, Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings conducted a

duly - noticed hearing by video teleconference with sites in

Jacksonville and Tallahassee, Florida.

APPEARANCES

For Petitioner: Kyle Christopher, Esquire

Katie Elizabeth Sabo, Esquire

Assistant General Counsel s

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Mark McGuire, pro se

900 Cesary Boulevard, Suite 109

Jacksonville, Florida 32211

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

section 489.129(1)(i), Florida Statutes (200 9), by violating

section 489.126(2)(a), as alleged in the Amended Administrative

Complaint, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On November 5, 2012, Petitioner, Department of Business and

Professional Regulation (the Department ) , filed an Administrative

Complaint against Respondent, Mark McGuire (Respondent or

Mr. McGuire), alleging that he had violated section

489.129(1)(i), by failing to apply for a permit on a project

within 30 days after receipt of the initial payment consis ting of

over 10 percent of the contract price , in violation of section

489.126(2)(a) . On November 26, 2012, Respondent submitted an

election of rights form disputing the allegations in the

Administrative Complaint and requesting a hearing pursuant to

sect ion 120.57(1), Florida Statutes. On January 13, 2013, the

case was referred to the Division of Administrative Hearings for

the assignment of an administrative law judge.

On January 22, 2013, the case was scheduled for hearing to

commence on March 28, 2013 , by video teleconference. The matter

proceeded as scheduled. Leave to amend the Administrative

Complaint was granted March 15, 2013. At hearing, Petitioner

presented the testimony of Mark McGuire; Clay County Building

Division Director David Conner; an d Theresa Smith. Petitioner Ó s

Exhibits 1 - 9 were admitted into evidence. Respondent testified

on his own behalf and presented the testimony of David Conner.

No exhibits were submitted by Respondent.

The transcript of the proceedings was filed with the

Di v ision on April 17, 2013 . Both parties timely submitted

Proposed Recommended Orders which have been considered in the

preparation of this Recommended Order. All references to Florida

Statutes are to the 2009 codification unless otherwise indicated.

FIND ING S OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of the construction industry pursuant to

section 20.165 and chapters 455 and 489, Florida Statutes.

2. At all times material to these proceedings, Respondent

has bee n licensed as a certified residential contractor in the

State of Florida, having been issued license number CRC 057893 in

May 2000 .

3. During all times material to these proceedings,

Respondent has been the primary qualifying agent of Jacksonville

Home Im provements, Inc. (JHI).

4. Respondent has been the subject of prior discipline. On

or about April 6, 2012, the Construction Industry Licensing Board

issued a Final Order against Respondent in Case No. 2011015263,

for violating section 489.129(1)(q), Flor ida Statutes (2009)

(failing to pay a civil judgment related to the practice of

contracting within a reasonable time). The Final Order imposed

an administrative fine in the amount of $500.00, costs in the

amount of $246.21, and payment of restitution in t he amount of

$39,500, or satisfaction of the outstanding civil judgment. On

or about July 12, 2012, Respondent Ó s Motion for a payment plan

was denied, and the decision was memorialized by order dated

October 11, 2012.

5. As a result of the prior discipli ne, the records for the

Department indicate that his license is currently suspended for

failure to comply with the Final Order described in paragraph

four.

6. Respondent is also the subject of several other

Administrative Complaints, submitted as Petition er Ó s Exhibit 3 .

The resolution of these complaints is not at issue in this

proceeding, and no evidence was submitted to demonstrate the

validity of these complaints. Petitioner Ó s Exhibit 3 was

admitted solely for the purpose of determining penalty in

acc ordance with the Board Ó s disciplinary guidelines, which will

be discussed below.

7. On or about Januar y 12, 2010, Respondent, d/b/a JHI,

entered into a contract with Theresa Smith for renovations of her

home at 2266 Mangrove Lane, Green Cove Springs, Flor ida.

Ms. Smith Ó s home had been damaged in a fire, and she and her son

were living in an RV on the property until the home could be

repaired. The job involved a structure which is attached to an

existing mobile home.

8. The contract price for the job des cribed in the initial

con tract is $46,700. The contract specified that Respondent

would obtain a permit to complete the listed work ; further

specified that Respondent would provide all necessary

architectural drawings and engineering ; and that all

specifi cations and engineering would meet existing state and

local building codes.

9. The contract required that Ms. Smith pay a retainer of

$14,010, representing 30 percent of the contract price. Further

payments under the contract consisted of an additional 3 0 percent

upon framing and new roof; 30 percent upon plumbing, electric ,

A/C, and windows; and 10 percent upon completion.

10. On or about January 19, 2010, Respondent accepted a

check from Ms. Smith for $14,010.00, representing the retainer

specified in the contract.

11. A standard permit application form must be submitted as

part of any permit application to the Clay County Building

Department. The application must be complete before the Building

Department will accept it for processing.

12. Respond ent did not submit a permit application for the

job at 2266 Mangrove Lane until March 24, 2010. The application

submitted was signed by Ms. Smith on March 15, 2010, and signed

by Respondent on March 24, 2010. No earlier permit application

was ever submit ted by Respondent to the Building Department for

this project.

13. Respondent claims that he did not know that he would be

required to have engineered drawings for the project until he

inquired at the building department on or about January 19, 2010,

and received a call telling him of the requirement the next day.

In his view, these discussions with the building department were

sufficient to meet the filing requirement even though he admits

he submitted nothing on the day he spoke to staff at the building

department. H is claim is belied by the language of the contract

itself.

14. As noted in paragraph eight, the contract specifically

indicates that the contractor will provide all necessary

architectural drawings and engineering, and that all

specificatio ns and engineering will meet existing state and local

building codes. These provisions do not appear to be part of the

form used for the contract, but instead are part of the

specifications for this job. The representation made to the

homeowner receiving the proposed contract is that these issues

were already contemplated. He also claimed that after the

contract for this project was executed, Ð the governor Ñ changed

the law related to the type of structure involved, leaving the

project to the mercy of the local official. 1/ No evidence of this

supposed change was introduced.

15. On or about May 25, 2010, the parties executed an

Addendum to the contract, providing for additional work to be

performed and requiring an additional payment of $14,711.00. The

t otal cost of the job, with the work descr ibed in the Addendum

included, wa s $ 61,411.00.

16. Ms. Smith has paid a total of $56,731 to complete the

repairs on her home. To date, over three years after signing

both the initial contract and the Addendum, the construction on

the home is far from complete. The air conditioning, duct work,

drywall, carpet, flooring, and fixtures still must be installed,

and the siding needs to be replaced. Although Respondent has

promised he will complete the project, Ms. Smit h does no t believe

he will ever complete the work. She cannot live in the home, and

she and her son continue to live in an RV parked on the property.

17. Ms. Smith sought and received an estimate in February

2003 to complete the work on her home and brin g the structure up

to code. The proposed contract price is $63,900.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1 ), Florida

Statutes (2012) .

19 . This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to suspend or revoke

Respondent Ó s license as a certified residential contractor .

Petitioner bears the burden of proof to demonstrate the

allegations in the Amended Administrative Complaint by clear and

convincing evidence. Dep Ó t of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987).

20 . As stated by the Florida Supre me Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a 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 Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowi tz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). Moreover, a

licensee can only be disciplined for those violations actually

charged. Trevisani v. Dep Ó t of Health , 908 So. 2d 1108 (Fla. 1st

DCA 2005); Ghani v. Dep Ó t of Health , 714 So. 2d 1113 (Fla. 1st

DCA 1998); and Willner v. Dep Ó t of Prof. Reg. , 563 So. 2d 805

(Fla. 1st DCA 1990).

21 . Count I of the Amended Administrative Complaint in this

case charges Respondent with violating section 489.129(1)(i), by

failing in any material respect to compl y with the provisions of

chapter 489, part I, Florida Statutes, by having violated section

489.126(2)(a). Section 489.126 provides in pertinent part :

(2) A contractor who receives, as initial

payment, money totaling more than 10 percent

of the contract p rice 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, and

(b) Start the work within 90 days after

the date all necessary permits for work, if

any, are issued,

unless the person who made the payment

agreed, in writing, to a longer period to

apply for the necessary permits or start the

work or to longer periods for both.

* * *

(4) Any person who violates any provision of

this section is guilty of theft and shall be

prosecuted and punished under s. 812.014.

22. Petitioner has proven the allegations in the Amended

Administrative Complaint by clear and convincing evidence.

Respondent accepted a down payment of 30 percent of the original

contract price on January 19, 2010. Accordingly Respondent should

have applied for the building permit no later than February 18,

2010 . He did n ot do so until March 24, 2010, over 60 days after

accepting the initial payment.

23. Respondent claims that he could not apply for the permit

within 30 days because he did not know that drawings would be

required until he spoke to building code staff on January 19,

2010. As stated in the Findings of Fact, his claim that he did

not know the drawings were required is not credible in light of

the other evidence presented, including the express statements

regarding architectural drawings and engineering cont ained in the

contract signed on January 12, 2010 . Further, section 489.126

provides for an exception to the 30 - day requirement if the person

making the payment agrees in writing to a longer period to apply

for the necessary permits. However , there is no evidence that

Ms. Smith agreed, in writing or otherwise, to extend the period of

time for applying for the permits. To the contrary, she was

seeking to provide a home for her son and has referred to him

being Ð homeless Ñ during the extended construction on the home.

Time was clearly Ð of the essence Ñ for her.

24. Respondent also seems to contend that his inquiry on

January 19, 2010, was sufficient to satisfy the requirement of

section 489.126(2)(a). However, Ð application Ñ and Ð inquiry Ñ are

two separate acts. One do es not substitute for another, and

evidence that Respondent inquired about permitting requirements

does not substitute for submission of something for the building

department to consider. Section 489.226 does not include

contacting the buildi ng department regarding the permitting

requirements as an alternative to avoid the ramifications of

failing to apply.

25. Pursuant to section 455.2227, the Construction Industry

Licensing Board has adopted disciplinary guidelines to provide

notice to bot h the public and licensees of the range of penalties

that can be expected for specific violations. In this instance,

the violation would be considered a second offense, because rule

61G4 - 17.003 provides that Ð a repeat violation is any violation on

which d isciplinary action is being taken where the same licensee

had previously had disciplinary action taken against him . . .;

and said definition is to apply regardless of whether the

violation in the present and prior disciplinary actions are of the

same or d ifferent subsections of the disciplinary statutes. Ñ

26. There is not a specific guideline penalty for a

violation of section 489.126. Florida Administrative Code 61G4 -

17.001(1)(i) provides that, for failing in any material respect to

comply with the pr ovisions of Part I of chapter 489, the penalty

should be the Ð penalty herein listed for the violation most

closely resembling the act underlying the local discipline. Ñ

There is no local discipline at issue in this case. However, r ule

61G4 - 17.001(6) provi des that Ð the absence of any violation from

this chapter shall be viewed as an oversight, and shall not be

construed as an indication that no penalty is to be assessed. The

guideline penalty for the offense most closely resembling the

omitted violation sh all apply. Ñ

2 7 . There are some alternatives to consider in deciding

which offense most closely resembles the omitted violation. One

possibility, favored by the Department, is the penalty for

violation of sections 489.129(1)(b) and 455.227(1)(c) (convi ction

of a crime relating to contracting). They urge this comparison

based upon 489.126(4), which makes any violation a theft

punishable pursuant to section 812.014. The guideline penalty for

this violation would be a minimum of a $2,500 fine and/or

prob ation, or suspension to a maximum of a $10,000 fine and

revocation.

2 8 . Another alternative would be the guideline penalty

listed in rule 61G4 - 17.001(m), which provides the penalty range

for violating section 489.129(1)(m)(committing incompetency or

mi sconduct in the practice of contracting). The penalty

guidelines pro vide that misconduct or incompetency in the practice

of contracting shall include but is not limited to failure to

honor a warranty; violation of any provision of Florida

Administrative C ode Chapter 61G4, or chapter 489, part I; and

failure to abide by the terms of a mediation agreement. For

violation of any provision of chapter 489, the penalty range for a

repeat violation starts with a $2,500 fine and/or probation or

suspension to a $10 ,000 fine and suspension or revocation . Fla.

Admin. Code R. 61G4 - 17.001(1)(m) 2.

2 9 . The second alternative, outlined in p aragraph 28 ,

appears to be the most appropriate penalty guideline to apply in

this case.

30. Rule 61G4 - 17.001 provides that the Bo ard shall assess

the costs of investigation and prosecution, and shall Ð order the

contractor to make restitution in the amount of financial loss

suffered by the consumer to that extent that such order does not

convene federal bankruptcy law. Ñ Fla. Admin. Code R. 61G4 -

17.001(4) and (5). In addition, rule 61G4 - 17.002 identifies

aggravating and mitigating circumstances that may be considered

in the determination of penalty. Those factors include monetary

or other damage to the customer, in any way associate d with the

violation, which damage the licensee has not relieved at the time

the penalty is assessed; the danger to the public; the number of

complaints filed against the licensee; the length of time the

licensee has practiced; the deterrent effect of the penalty

imposed; the effect of the penalty upon the licensee Ó s

livelihood; and any efforts at rehabilitation.

31. In this case, Respondent is a repeat offender with more

disciplinary actions in the pipeline. While the guidelines

reference the number of c omplaints against the licensee as an

aggravating factor, the undersigned has given no weight to the

complaints in Petitioner Ó s Exhibit 3, as at this point they

remain al legations as opposed to any finding s of actual

misconduct. However, Ms. Smith continue s to be without a home,

and Respondent Ó s attitude regarding the requirements of

permitting and the responsibilities of fulfilling the contracts

to which he has committed is nothing short of cavalier.

32. That being said, the Department did not charge

Resp ondent with misconduct, mismanagement, or abandonment. It

charged Respondent with failing to timely apply fo r a permit

after accepting a 30 - percent down payment. The recommended

discipline must be reasonably related to the charge alleged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Construction Industry Licensing

Board enter a Final Order finding that Respondent violated

section 489.216(2)(a) and therefore violated section

489.219(1)(i). It i s further recommended that the Department

impose an administrative fine of $5,000; assess costs to be

determined by the Board; suspend his license for a period of two

years; and that he be directed to pay restitution to Theresa

Smith in the amount of $56,7 31.00 (the amount she paid him on the

contract).

DONE AND ENTERED this 29th day of May , 2013 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of May, 2013 .

ENDNOTE

1/ The undersigne d is mindful that while the Governor, as head of

the executive branch, may advocate new building requirements, it

is up to the Legislature to actually file and pass legislation.

COPIES FURNISHED:

Mark Anthony McGuire

Suite 109

900 Cesery Boulevard

Jacks onville, Florida 32211

Katie Elisabeth Sabo, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

Drew Winters, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Fl orida 32399

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 t he Final Order in this case.