15-007339PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Antonio L. Requejo Status: Closed Recommended Order on Thursday, March 17, 2016.

Summary: Respondent assisted a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

CONSTRUCTION INDUSTRY LICENSING

BOARD,

Petitioner,

vs. Case No. 15 - 7339PL

ANTONIO L. REQUEJO,

Respondent.

_______________________________/

RECOMMENDED ORDER

On February 1 5 , 20 1 6 , a hearing was held by video

teleconference at locations in Lauderdale Lakes and Tallahassee,

Florida, before F. Scott Boyd, an Administrative Law Judge

assigned by the Division of Administrative Hear ings.

APPEARANCES

For Petitioner: Sorin Ardelean , Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: No Appearance

ST ATEMENT OF THE ISSUE S

Whether Respondent performed an act which assisted an

entity in engaging in the prohibited uncertified and

unregistered practice of contracting or whether he abandoned a

construction project in which he was engaged or under contract

as a contractor , in violation of section 489.129(1), Florida

Statutes, as set forth in the Administrative Complaint, and , if

so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On July 23 , 201 3 , Petitioner , Department of Business and

Professional Regulation (Departm ent or Petitioner ) , issued a n

Administrative Complaint against Respondent , Antonio L. Reque j o

(Mr. Reque j o or Respondent) , on behalf of the Construction

Industry Licensing Board (Board). The complaint charged

Respondent with : ( 1) performing an act which assists a person

or entity in engaging in the prohibited uncertified and

unregistered practice of contracting ; and ( 2) aba ndoning a

construction project in which the contractor is engaged or

under contract as a contractor. Respondent disputed material

facts alleged in the complaint and requested an administrative

hearing.

A t hearing, Petitioner offered nine exhibits, admitt ed as

Exhibits P - 1 through P - 9 . Official recognition was given to

an order of the Board imposing prior discipline. Petitioner

offered the testimony of Ms. Carmen Goehrig, complainant a nd

owner of real property; Mr. Goehrig, husband of complainant;

Mr. Claudio Grande, chief building official of the c ity of

Tamarac; Mr. Andre Chestnut, who entered into a construction

contract with Ms. Goehrig ; and Ms. Norma Fishner,

investigative specialist with the Department. Respon dent did

not appear at the hearing. In response to Mr. ChestnutÓs

representation at hearing that Respondent had contacted him

that morning and was having difficulty finding the hearing,

the case was placed in abeyance , and an Order to Show Cause

was issue d to Respondent asking why the hearing should not be

concluded on the existing record. Respondent did not respond

and the hearing was closed by an Order issued on February 26,

2016. The Transcript of the February 15, 2016, hearing was

filed on February 2 6, 2016 . Petitioner Ós P roposed R ecommended

O rder , filed on March 4, 2016, was considered in the

preparation of this Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to

the versions in effect in early 2012, when violations were

allegedly committed.

FINDINGS OF FACT

1. The Board is the state agency charged with regulating

the practice of construction contracting pursuant to section

20 . 165 and chapters 45 5 and 48 9 , Florida Statutes.

2. At all times material to this proceeding, Mr. Requejo

was licensed as a c ertified general c ontractor in the state of

Florida, having been issued license number CGC 1504266 .

3. Mr. RequejoÓs address of record is 15941 Southwest 53rd

Court, Southwest Ranches, Florida 33331.

4 . At all times material to this proceeding, Mr. Requejo

was the primary qualifying agent of Recol, Inc.

5 . Mr. Andre Chestnut was formerly a registered contractor

in the state of Florida. H e testified credibly that he used to

have nine licenses. At all times relevant to this case, he held

no state licensure as a contractor. Consistent with Department

records, h e testified that his license had been revoked sometime

around August 2003. USA Screens was incorporated in December

2011 to perform Ðany and all lawful business,Ñ with Mr. Chestnut

as the incorporator, registered agent, and president. Records

of the Department contain no evidence that USA Screens , Inc. ,

has ever been qualified by a licensed contractor or had an

active license as a construction business.

6 . Ms. Carmen Goehrig owned real property at

6300 Pinehurst Circle East in Tamarac, Florida. S he wished

to install a screen enclosure on the property . On January 21,

2012, she en tered into a construction contract with USA Screens,

Inc ., signed by Mr. Chestnut. This constituted the practice of

contracting by Mr. Chestnut and USA Screens , Inc.

7 . Mr. Chestnut testified that he had been working in

conjunction with Mr. Requejo on various projects for the past

nine years. He credibly testified that he received the

template for the contract he entered into with Ms. Goehrig from

Mr. Requejo. That contract template contains the ful l name and

address for both Recol, Inc. , and USA Screens , Inc. , at the top

of the contract in large type, but shows only one contractorÓs

license number, that of Mr. Requejo, under the address for

Recol, Inc. No contractorÓs license number is shown under the

USA Screens , Inc. , address.

8 . Having worked with Mr. Chestnut for nine years, and

having prepared the template contract that they used for common

projects, Mr. Requejo had reasonable grounds to know that USA

Screens , Inc., was uncertified and unregi stered , as suggested by

the contract itself .

9. The contract mentioned that it was contingent upon both

homeowner association and government approvals, and included a

handwritten provision that there would be Ðno material purchases

until association appr oval.Ñ Ms. Goehrig signed two checks to

USA Screens , Inc. : the first in the amount of $500 .00 for the

application; the other in the amount of $3 , 000 .00 for materials.

Both checks were cashed on January 24, 2012.

10 . On February 14, 2012 , Mr. Requejo , d / b / a Recol, Inc.,

timely filed building permit application 12 - 636 for construction

of the screen enclosure at 6300 Pinehurst Circle East with the

c ity of Tamarac, using his general contractorÓs license number.

Recol, Inc. , is listed as the general c ontrac tor in the c ityÓs

records.

11 . In filing for a permit from the c ity of Tamarac for

the construction , Mr. Reque j o assisted USA S c reens , Inc. , and

Mr. Chestnut in engaging in the prohibited uncertified and

unregistered practice of contracting .

12 . Mr. Claudio Grande is the chief building official for

the c ity of Tamarac. He oversees permitting and is the

custodian of records. He testified that permit 12 - 636 was

denied due to zoning restrictions and structural issues.

13 . Mr. Chestnut testifie d that he made numerous calls

trying to get the permit approved. He testified that the

problem was that the screen enclosure encroached on a utility

easement.

14 . As Mr. Goehrig testified:

They applied for the permit. He showed us

the drawings, Andre, a nd to my knowledge,

submitted the permit application. And then

we noticed that the second check was cashed,

so we started calling him about that. And

all he would say is, ÐDonÓt worry, donÓt

worry, donÓt worry.Ñ

And then the permit was denied and then w e

went back and tried to do something to get

it approved and it was denied. And then

zoning finally denied it again. So three

times, we tried to fix it to make it work.

And we finally, you know, the zoning

department finally came down and said, ÐNo,

end of story, no good.Ñ

So we went to him and said, ÐOkay, we canÓt

get the permit, please just give us our

money back and weÓll go on our way.Ñ And of

course, his answer was, ÐNo, youÓre not

getting any money back, I spent your money,

goodbye.Ñ

After th e permit was finally denied and Mr. Chestnut refused to

return their money, the Goehrigs contacted Mr. Requejo to get

their money back, again to no avail.

15 . It was not shown that the project was terminated

without just cause or that it was terminated without proper

notification to Ms. Goehrig.

16 . It is clear from the filed complaint , as well as the

testimony that Ms. Goehrig was aware that the project could not

be permitted, and sought a return of the money that had been

paid. ÐThe permit was denied and [Chestnut] refuses to refund

our deposit.Ñ

17 . The Department failed to prove that Mr. Reque j o

abandoned a construction project in which he was engaged or

under contract as a con tractor.

Prior Discipline

18 . On February 13, 2013, a Final Order Adopting

Settlement and Vacating Prior Orders was filed by the Board.

The Order incorporated a settlement agreement imposing

discipline for allegations in several earlier Administrative

C omplaints. The October 2012 settlement agreement required the

payment of fines, investigatory costs, and restitution to six

individuals, as well as continuing education and a six - year

period of probation. The Order constitutes prior discipline

within the meaning of the disciplinary guidelines.

C ONCLUSIONS OF LAW

1 9 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120. 569 and 120.57(1) , Florida

Statutes (2015) .

20 . Petitioner has authority to investigate and file

administrative complaints charging violations of laws regulat ing

the construction industry . § 45 5 . 225 , Fla. Stat.

21 . Section 489.1195(1)(a) provide d that all primary

qualifying agents for a business orga nization 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. Shimkus v. Dep't of Bu s. & Prof'l Reg. , 932

So. 2d 223, 224 (Fla. 4th DCA 2005).

22 . Petitioner seeks disciplinary action against

RespondentÓs license. A proceeding to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487,

491 (Fla. 1973). Petitioner must therefore prove the charges

against Respondent by clear and convincing evidence. Fox v.

Dep't of Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing

Dep't of Banking & Fin. v. Osbor ne Stern & Co. , 670 So. 2d 932

(Fla. 1996)).

23 . The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witn esses 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 b elief 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 Slomowitz

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

24 . D isciplinary statutes and rules "must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction.Ñ

Gr iffis v. Fish & Wildlife Conser . Comm'n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011 ); Munch v. Dep't of Prof'l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

Count One

25 . Respondent is charged with performing an act which

assists a person or entity in engaging in the prohibited

uncertified and unregistered practice o f contracting, in

violation of section 489.129(1)(d). Proof of this charge

requires that Respondent knew, or had reasonable grounds to

know, that the person or entity was uncertified and

unregistered.

26 . The evidence showed that Respondent applied for a

building permit for the screen enclosure from the city of

Tamarac. This act assisted USA Screens , Inc. , and Mr. Chestnut,

neither of whom was certified or registered as a contractor, to

engage in the practice of contracting.

27 . It was further clearly shown that Respondent had

reasonable grounds to know that neither USA Screens , Inc. , nor

Mr. Chestnut were certified or registered . Respondent had

worked with Mr. Chestnut for nine years . He had prepared the

contract template containing informati on on both Recol, Inc. ,

and USA Screens , Inc. , which contained only his own contractorÓs

license number. He filed the building permit application under

his contractorÓs license.

28 . Petitioner proved by clear and convincing evidence

that Respondent assisted a person or entity in engaging in the

prohibited uncertified and unregistered practice of contracting ,

in violation of section 48 9 . 129(1)(d).

Count Two

2 9. Respondent was charged with violation of s ection

489.129(1)(j) , which provided that discipline may be imposed

for:

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.

30 . T he abandonment statute is not violated every time a

construction project is not completed. For example, th e

provision Ðd oes not purport to punish inept business conduct. Ñ

Hunter v. DepÓt of Prof'l Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA

1984) (project was not abandoned within the meaning of section

489.129 where contractor went out of business and was unable t o

perform the contract ) .

31 . The statute contain s a presumption : i f it is shown

either that a project was terminated without just cause or that

it was terminated without proper notification to the owner, it

is presumed that the project was abandoned. H ere, however,

Petitioner presented no evidence of either predicate fact.

32 . In any event, the evidence at h earing clearly showed

that the p ermit was denied by the c ity of Tamarac , that

construction could not legally begin , and that the Goehrigs

requested their money back . In Department of Business and

Professional Regulation v. Douglas J. Ringold, Jr. , d / b / a Alpha

Restoration, Inc. , Case No. 08 - 4491 (Fla. DOAH Feb. 10, 2009;

Fla. DBPR July 15, 2009) , t he Board held that there was no

abandonment under similar circumstances involving a denied

permit . The original construction permit in Ringold could not

be issued because metal tile roof s were not approved for use in

Miami - Dade County , as the client was later informed. T he Board

held -- despite unre asonable delays in even applying for the

permit -- th at no abandonment of the original construction project

was shown because the client eventually understood the project

could not be permitted and then sought to modify the contract to

provide for a non - meta l tile roof ( although the Board did

ultimately f ind abandonment of the later, modified contract ) .

33 . The e vidence with respect to Count Two of the

Administrative Complaint showed that Respondent was legally

unable to begin the contract , that the Goehrig s were aware of

this , and that they demanded a return of their deposit.

34 . Whatever other provisions Respondent may have violated

in not returning money to the Goehrigs , he did not abandon the

project . He promptly applied for the permit, t he go verning

statute did not allow him t o proceed on the job without

obtaining permits , and the contract itself was contingent upon

government approvals .

35 . Petitioner failed to show by clear and convincing

evidence that R espondent abandoned the Goehrig con struction

project in violation of section 489.129(1)(j).

Penalty

36 . Penalties in a licensure discipline case may not

exceed those in effect at the time a violation w as committed.

Willner v. DepÓt of Prof 'l . Reg., Bd. of Med . , 563 So. 2d 805,

806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla.

1991).

37 . Section 45 5 . 2273 , Florida Statutes, requires the Board

to adopt disciplinary guidelines for specific offenses.

38 . Penalties imposed must be consistent with any

di sciplinary guidelines prescribed by rule. See Parrot Heads,

Inc. v. Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231, 1233 - 34

(Fla. 5th DCA 1999).

39 . The Board adopted Florida Administrative Code

R ule 61G4 - 17.001(1)( d ) , which provide d that the penalty for

assisting an unlicensed person to evade provisions of chapter

489 shall range from a $ 2 , 5 00 .00 fine and /or probation or

suspension to a $10,000 .00 fine and revocation.

40 . Rule 61G4 - 17.001 (4) provided that the Board shall

assess the costs of investigati on and prosecution, excluding

costs related to attorney time.

41 . Rule 61G4 - 17.001 (5) also provide d that the Board shall

order the contractor to make restitution in the amount of

financial loss suffered by a consumer to the extent not in

violation of fede ral bankruptcy law.

42 . There were some aggravating circumstances to be

considered under rule 61G4 - 17.002, i ncluding the fact that

Respondent has previously been disciplined and m onetary damage

to Ms. Goehrig, but n o circumstances were shown that would

warrant deviation from the range of penalties already allowed

under the guideline s .

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 Mr. Antonio L. Requejo in

violation of section 48 9 . 129 (1) (d) , Florida Statutes ; suspending

his contractorÓs license for a period of six months, followed by

a period of probation deemed advisable by the Board; imposing a

fine of $7,000.00; and direc ting that he make restitution in the

amount of $3 , 500.00 to Carmen Goehrig .

DONE AND ENTERED this 17 th day of March, 2016, in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 17 th day of March, 2016.

COPIES FURNISHED:

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

Antonio L. Requejo

11826 B. Miramar Parkway

Miramar, Florida 33025

Daniel Biggins, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.