92-006323 Construction Industry Licensing Board vs. Gonzalo Ardavin Status: Closed Recommended Order on Wednesday, April 26, 1995.

Summary: Evidence establishes violations of 489.129(1)(e), (h) & (m); includes discussion of several penalty issues.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6323

)

GONZALO ARDAVIN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its Hearing

Officer, Michael M. Parrish, conducted a formal hearing on January 25, 1995, at

Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Division Director, Division of Regulation

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

This is a license discipline proceeding in which the Petitioner seeks to

take disciplinary action against the Respondent on the basis of alleged

violations of Chapter 489, Florida Statutes. Specifically, the Respondent has

been charged in a three-count Administrative Complaint with violations of

paragraphs (e), (h) and (m) of Section 489.129(1), Florida Statutes.

PRELIMINARY STATEMENT

Although the Respondent was provided with written notice of the date, time,

and place at which the formal hearing in this case would be conducted, there was

no appearance by or on behalf of the Respondent at the formal hearing. The

Hearing Officer has not received any communication from the Respondent at any

time since the formal hearing.

At the formal hearing on January 25, 1995, the Petitioner presented the

testimony of Carlos Nachon, Samuel H. Osario, Gina Kasperowicz, Rafael Perez,

William Uffendell and Frank Abbott. The last mentioned witness was tendered and

received as an expert in architecture and construction. Petitioner's Exhibits

numbered 1 through 18 were identified and admitted into evidence. (Three of the

exhibits were late-filed on the basis of leave requested and granted at the

formal hearing.)

At the conclusion of the formal hearing the Petitioner requested that the

parties be allowed twenty days from the filing of the transcript within which to

file their proposed recommended orders. The request was granted. The

transcript of the hearing was filed with the Hearing Officer on February 13,

1995. By memorandum dated February 15, 1995, all parties were advised in

writing that the deadline for service of their proposed recommended orders was

March 6, 1995.

On March 6, 1995, the Petitioner filed a proposed recommended order

containing proposed findings of fact and conclusions of law. The Respondent has

not filed anything since the formal hearing. With the exception of a few

editorial changes in the interest of clarity, the findings of fact which follow

incorporate all of the proposed findings of fact submitted by the Petitioner.

With the exception of some portions of the proposed conclusions regarding the

appropriate penalty, the conclusions of law in this Recommended Order have

adopted the essence of the proposed conclusions of law submitted by the

Petitioner.

FINDINGS OF FACT

1. Respondent is, and has been at all times material hereto, a licensed

Certified General Contractor, having been issued license number CG C046109, by

the State of Florida.

2. At all times material hereto, the Respondent was the qualifying agent

for Florida Hi-Tech Construction, Inc.

3. On November 2, 1990, the Respondent, doing business as Florida Hi-Tech

Construction, Inc., contracted with New Life Presbyterian Church for the

construction of a church at 7355 Coral Way, Miami, Florida 33155, for the price

of Two Hundred and Ninety Four Thousand dollars ($294,000.00).

4. New Life Presbyterian Church paid Florida Hi-Tech Construction, Inc.,

One Hundred and Four Thousand dollars ($104,000.00) toward the contract price.

5. The Respondent constructed a foundation and two exterior concrete block

walls with tie beams, and then abandoned the project without just cause or

notice to the owner during or near March of 1991.

6. The work performed by the Respondent amounted to approximately ten or

fifteen percent of the total work to be performed under the contract.

7. The amount of money the Respondent received from the New Life

Presbyterian Church amounted to approximately thirty-five percent of the full

price to be paid under the contract.

8. On May 17, 1991, a lien in the amount of One Thousand Eighty Nine

dollars and Seven cents ($1,089.07) was filed against 7355 Coral Way, Miami,

Florida 33155, the property known as New Life Presbyterian Church, for building

materials furnished by Nachon Enterprises, Inc., in accordance with a contract

between Florida Hi-Tech Construction, Inc., and Nachon Enterprises, Inc.

9. The Respondent failed to remove said lien and the New Life Presbyterian

Church paid Nachon Enterprises, Inc., to satisfy said lien.

10. On April 19, 1991, a lien in the amount of Ten Thousand One Hundred

Eighty Four dollars and Fourteen cents ($10,184.14) was filed by Southeastern

Municipal Supply, a Division of Clayton Group, Inc., against 7355 Coral Way,

Miami, Florida 33155, for plumbing materials furnished in accordance with a

contract with Downrite Engineering.

11. On April 19, 1991, a lien in the amount of One Thousand Eight Hundred

Sixty One dollars and Thirty Six cents ($1,861.36) was filed by PreCon Products,

a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155,

for plumbing materials furnished in accordance with a contract with Downrite

Engineering.

12. The Respondent failed to remove the liens filed by Southeastern

Municipal Supply and PreCon Products, a Division of Clayton Group, Inc., and New

Life Presbyterian Church paid both liens.

13. Downrite Engineering was a subcontractor of Florida Hi-Tech

Construction, Inc., in the construction of the New Life Presbyterian Church, and

the materials furnished to the New Life Presbyterian Church by Southeastern

Municipal Supply and PreCon Products, both Divisions of Clayton Group, Inc.,

were furnished in accordance with Respondent's instructions.

14. On May 17, 1991, a lien in the amount of Four Thousand Seven Hundred

Ninety Four dollars and Ninety One cents ($4,794.91) was filed by Standard

Concrete Corporation against 7355 Coral Way, Miami, Florida 33155, for concrete

furnished in accordance with a contract between Florida Hi-Tech Construction,

Inc., and Standard Concrete Corporation.

15. On February 1, 1991, a lien in the amount of Four Thousand Nine

Hundred Ninety Nine dollars and Eighty Four cents ($4,999.84) was filed by

Central Concrete Supermix, Inc., against 7355 Coral Way, Miami, Florida 33155,

for concrete furnished in accordance with a contract between Florida Hi-Tech

Construction, Inc., and Central Concrete Supermix, Inc.

16. The Respondent failed to remove the lien filed by Central Concrete

Supermix, Inc., and the New Life Presbyterian Church paid Four Thousand dollars

($4,000.00) in satisfaction of the lien.

17. On February 22, 1991, a lien in the amount of Two Thousand One Hundred

Twelve dollars ($2,112.00) was filed by Del Amo Plumbing, Inc., against 7355

Coral Way, Miami, Florida 33155, for plumbing materials and labor furnished in

accordance with a contract between Florida Hi-Tech Construction, Inc., and Del

Amo Plumbing, Inc.

18. The Respondent failed to remove the lien filed by Del Amo Plumbing,

Inc.

19. On April 10, 1991, a lien in the amount of Two Thousand Two Hundred

and Fourteen dollars and Ninety Three cents ($2,214.93) was filed by Austin

Tupler Trucking, Inc., against 7355 Coral Way, Miami, Florida 33155, for

trucking and related services furnished in accordance with a contract between

Downrite Engineering and Florida Hi-Tech Construction, Inc.

20. The Respondent failed to remove the lien filed by Austin Tupler

Trucking, Inc., and the New Life Presbyterian Church paid to satisfy the lien.

21. Downrite Engineering was a subcontractor of Florida Hi-Tech

Construction, Inc., in the construction of the New Life Presbyterian Church, and

the materials furnished to the New Life Presbyterian Church, by Austin Tupler

Trucking, Inc., were furnished in accordance with the Respondent's instructions.

22. New Life Presbyterian Church overpaid the Respondent by approximately

Sixty Five Thousand Seven Hundred and Five dollars ($65,705.00).

23. The New Life Presbyterian Church suffered financial harm as a result

of the Respondent's activities.

24. The Respondent obtained money draws from the New Life Presbyterian

Church in a manner that did not conform to the contract requirements.

25. The Respondent hired Joe Al Electric, Inc., to perform electrical work

on the New Life Presbyterian Church.

26. Joe Al Electric, Inc., was not a licensed entity pursuant to Chapter

489, Florida Statutes.

27. The Respondent failed to ensure that Joe Al Electric, Inc., was an

entity licensed to practice electrical contracting in the State of Florida.

28. The Respondent assisted Joe Al Electric, Inc., in the uncertified and

unregistered practice of contracting.

29. The Respondent was previously found guilty of violations of paragraphs

(k), (h), and (m) of Section 489.129(1), Florida Statutes, in a Final Order

issued by the Construction Industry Licensing Board on May 13, 1994, in DBPR

Case No. 92-14332.

30. As of the date on which it submitted its proposed recommended order,

the Petitioner had incurred costs associated with the investigation and

prosecution of this case of at least Eight Thousand Three Hundred Six dollars

and Sixty Two cents ($8,306.62).

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has jurisdiction over the

parties to and subject matter of this proceeding. Section 120.57, Florida

Statutes.

32. The Florida Construction Industry Licensing Board is empowered to

revoke, suspend, or otherwise discipline the license of a contractor for any of

the violations itemized in Section 489.129(1), Florida Statutes.

33. Petitioner has the burden of proof in this license discipline case and

must prove the charges contained in this Administrative Complaint by clear and

convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans

Packing Company v. Department of Agriculture and Consumer Services, 557 So.2d

112, 116 (Fla. 1st DCA 1989); Pascale v. Department of Insurance, 525 So.2d 922

(Fla. 1st DCA 1988).

34. The Petitioner's 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." Slomowitz v. Walker,

429 So.2d 797, 800 (Fla. 4th DCA 1983). In addition, the disciplinary action

taken may be based only upon the offenses specifically alleged in the

Administrative Complaint. See, Sternberg v. Department of Professional

Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA

1985); Kinney v. Department of State, 501 So.2d 129, 133, (Fla. 5th DCA 1987);

Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA

1984). Similarly, respondents in license discipline cases are entitled to

notice of the penalty sought by the agency, and the penalty imposed cannot be

more severe than the most severe potential penalty of which a respondent had

notice. Williams v. Turlington, 498 So.2d 468 (Fla. 3d DCA 1986).

35. Count I of the Administrative Complaint charges the Respondent with

violation of Section 489.129(l)(e), Florida Statutes, by hiring an unlicensed

entity (Joe Al Electric, Inc.) to perform electrical work on the subject

contract. Section 489.129(l)(e), Florida Statutes, authorizes disciplinary

action for the following conduct:

Performing any act which assists a person or

entity in engaging in the prohibited uncertified

and unregistered practice of contracting, if the

certificate-holder or registrant knows or has

reasonable grounds to know that the person or

entity was uncertified and unregistered.

36. The evidence in this case is sufficient to establish the violation

alleged in Count I of the Administrative Complaint. The Respondent knew, or

should have known, that Joe Al Electric, Inc., was uncertified and unregistered

at the time it was hired to work on the subject contract.

37. Count II of the Administrative Complaint charges the Respondent with

violation of Section 489.129(l)(h), Florida Statutes, by reason of the

Respondent having allowed various specified liens to be filed against the

customer's property for supplies and services for which the Respondent had been

paid by the customer. Section 489.129(l)(h), Florida Statutes, authorizes

disciplinary action for the following conduct:

Committing mismanagement or misconduct in the

practice of contracting that causes financial

harm to a customer.

38. The evidence in this case is sufficient to establish the violation

alleged in Count Two of the Administrative Complaint. The Respondent's failure

to pay various amounts owed to subcontractors was clearly mismanagement and

misconduct in the practice of contracting and that failure clearly caused

financial harm to the customer.

39. Count III of the Administrative Complaint charges the Respondent with

violation of Section 489.129(l)(m), Florida Statutes, by reason of the same

conduct that constitutes the factual predicate for the violations alleged in

Counts I and II of the Administrative Complaint. Count III of the

Administrative Complaint alleges that such conduct also constitutes "misconduct

in the practice of contracting" within the meaning of Section 489.129(l)(m),

Florida Statutes.

40. The evidence in this case is sufficient to establish the violation

alleged in Count III of the Administrative Complaint. However, inasmuch as the

violation alleged in Count III is based on the very same facts as the violations

alleged in Counts I and II, the violation alleged in Count III, even though

proved, is not a sufficient basis for imposition of any penalty in addition to

the penalties warranted by the violations described in Counts I and II.

41. Rule 61G4-17.001(19), Florida Administrative Code, reads as follows,

in pertinent part:

For any violation occurring after October 1, 1989,

the Board may assess the costs of investigation

and prosecution. The assessment of such costs may

be made in addition to the penalties provided by

these guidelines without demonstration of aggra-

vating factors set forth in Rule 61G4-17.002.

42. In accordance with Rule 61G4-17.001, Florida Administrative Code, the

following guidelines shall be used in disciplinary cases:

(5) 489.129(l)(e): Assisting unlicensed person

to evade provision of Chapter 489. First violation,

$500 to $2,500 fine; repeat violation, $2,500 to

$5,000 fine and/or probation, suspension, or

revocation.

* * *

(8) 489.129(l)(h): Mismanagement or misconduct

causing financial harm to the customer. First

violation, $750 to $1,500 fine and/or probation;

repeat violation, $1,500 to $5,000 fine and/or

probation, suspension, or revocation.

* * *

(12) 489.129(l)(m): Gross negligence, in-

competence, and/or misconduct, fraud or deceit.

(a) Causing no monetary or other harm to licensee's

customer, and no physical harm to any person.

First violation, $250 to $750 fine; repeat violation,

$1000 to $5000 fine and 3 to 9 month suspension.

(b) Causing monetary or other harm to licensee's

customer, or physical harm to any person. First

violation, $500 to $1,500 fine, repeat violation,

$1,000 to $5,000 fine and suspension or revocation.

43. In addition, Rule 61G4-17.002, Florida Administrative Code, provides

that:

Circumstances which may be considered for the pur-

poses of mitigation or aggravation of penalty shall

include, but are not limited to 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 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 condi-

tions 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 severity of the offense. (4)

The danger to the public. (5) The number of

repetitions of offenses. (6) The number of com-

plaints filed against the licensee. (7) The length

of time the licensee has practiced. (8) The actual

damage, physical or otherwise, to the licensee's

customer. (9) The deterrent effect of the penalty

imposed. (10) The effect of the penalty upon the

licensee's livelihood. (11) Any efforts at

rehabilitation. (12) Any other mitigating or

aggravating circumstances.

44. Furthermore, Rule 61G4-17.003, Florida Administrative Code, reads as

follows:

(1) As used in this Rule, a repeat violation

is any violation on which disciplinary action is

being taken where the same licensee had previously

had disciplinary action taken against him or

received a letter of guidance in a prior case;

and said definition is to apply (i) regardless

of the chronological relationship of the acts

underlying the various disciplinary actions, and

(ii) regardless of whether the violations in the

present and prior disciplinary actions are of the

same or different subsections of the disciplinary

statutes.

(2) The penalty given in the above list for

repeat violations, is intended to apply only to

situations where the repeat violation is of a

different subsection of Chapter 489 than the first

violation. Where, on the other hand, the repeat

violation is the very same type of violation as

the first violation, the penalty set out above

will generally be increased over what is otherwise

shown for repeat violations in the above list.

45. Rule 61G4-17.001(20), Florida Administrative Code, provides that:

For any violation occurring after October, 1988,

the Board may order the Contractor to make resti-

tution in the amount of financial loss suffered

by the consumer. Such restitution may be ordered

in addition to the penalties provided by these

guidelines without demonstration of aggravating

factors set forth in Rule 61G4-17.002, and to the

extent that such order does not contravene federal

bankruptcy law.

46. The Administrative Complaint in this case reads as follows with regard

to the penalty sought:

WHEREFORE, Petitioner respectfully requests the

Construction Industry Licensing Board enter an

Order imposing one or more of the following

penalties: revocation or suspension of Respon-

dent's license, imposition of an administrative

fine, issuance of a reprimand, placement of the

Respondent on probation, and/or any other relief

that the Board deems appropriate.

47. Noticeably absent from the language quoted immediately above is any

reference to an assessment of costs or an assessment of reimbursement to the

customer. In view of cases such as Williams v. Turlington, 498 So.2d 468 (Fla.

3d DCA 1986), the failure to notify the Respondent that such assessments were

being sought precludes the inclusion of such assessments as part of the remedy

in this proceeding.

RECOMMENDATION

On the basis of all the foregoing, it is RECOMMENDED that the Construction

Industry Licensing Board issue a Final Order in this case to the following

effect:

(1) Concluding that the Respondent is guilty of the violations charged in

all three counts of the Administrative Complaint; and

(2) Imposing the following penalties for the violations alleged in Counts

I and II of the Administrative Complaint: (a) administrative fines totaling Ten

Thousand dollars ($10,000.00) (a $5,000.00 fine for each of the two counts); and

(b) revocation of the Respondent's license.

DONE AND ENTERED this 26th day of April 1995 in Tallahassee, Leon County,

Florida.

___________________________________

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of April 1995

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Senior Attorney

Department of Business and

Professional Regulation

Suite 60

1940 North Monroe Street

Tallahassee, FL 32399-0792

Mr. Gonzalo Ardavin

6120 East Territorial Avenue

Tucson, Arizona 85718

Richard Hickok, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Linda Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.