97-000997
Construction Industry Licensing Board vs.
Robert E. Poindexter, D/B/A Accurate Development, Inc.
Status: Closed
Recommended Order on Tuesday, July 29, 1997.
Recommended Order on Tuesday, July 29, 1997.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION , )
16)
17Petitioner , )
19)
20vs. ) Case No. 97 -0997
26)
27ROBERT E. POINDEXTER , )
31)
32Respondent. )
34)
35RECOMMENDED ORDER
37An administrative hearing was conducted in this proceeding
45on May 23, 1997, in Melbourne, Florida, before Daniel Manry,
55Administrative Law Judge, Division of Administrative Hearings.
62APPEARANCES
63For Petitioner : John L. Chaves, Senior Attorney
71Department of Business and
75Professional Regulation
771940 North Monroe Street, Suite 60
83Tallahassee, Florida 32399-0792
86For Respondent : Robert E. Poindexter, pro se
942545 Burns Avenue
97Melbourne, Florida 32935
100STATEMENT OF THE ISSUES
104The issues in this case are whether Respondent violated
113Section 489.129(1)(r), Florida Statutes (1995), 1/ by failing
121to satisfy a civil judgment relating to Respondent's contractor's
130license and, if so, what, if any, penalty should be imposed in
142accordance with Florida Administrative Rule 61G4-17.001. 2/
149PRELIMINARY STATEMENT
151Petitioner filed an Administrative Complaint against
157Respondent on December 24, 1996. Respondent timely requested a
166administrative hearing.
168At the hearing, Petitioner presented the testimony of one
177witness and submitted 10 exhibits for admission in evidence.
186Respondent testified in his own behalf and submitted five
195exhibits for admission in evidence.
200The identity of the witnesses and exhibits, and the rulings
210regarding each, are set forth in the transcript of the hearing
221filed with the undersigned on June 20, 1997. Petitioner timely
231filed its proposed recommended order ("PRO") on June 30, 1997.
243Respondent timely filed his PRO on July 7, 1997.
252FINDINGS OF FACT
2551. Petitioner is the state agency responsible for
263regulating contractors in the state. Respondent is licensed as a
273contractor pursuant to license number CR C056639.
2802. Respondent has been a licensed contractor since
288January 22, 1993. Respondent is the primary qualifying agent for
298Accurate Development, Inc. ("Accurate") within the meaning of
308Section 489.1195(1)(a).
3103. In April 1995, Respondent entered into two oral
319agreements with Mr. Randall Bischoff, d/b/a Custom Glass and
328Mirror ("Custom"). Custom was to supply glass, mirrors,
338shelving, shower enclosures, and labor as subcontractor for
346Accurate at two construction sites on which Respondent was
355constructing new residential homes. Respondent and Accurate
362agreed to pay for all materials and labor.
3704. Mr. Bischoff provided all of the materials and labor
380required by the terms of the contract. Neither Respondent nor
390Accurate ever paid for the materials or labor.
3985. Mr. Bischoff spoke with Respondent on several occasions
407in unsuccessful attempts to obtain payment of the sums owed to
418him and to resolve the matter amicably. Mr. Bischoff then filed
429mechanic liens against the real property on which he performed
439work for Respondent. At their own expense, the home owners
449attempted to remove the liens without paying Mr. Bischoff.
4586. After protracted litigation, Mr. Bischoff agreed to
466remove the liens. Prior to their removal, the liens clouded the
477titles of the homeowners.
4817. On June 8, 1995, Mr. Bischoff sued Respondent and
491Accurate in Brevard County Court for the money owed to him. On
503July 10, 1995, the court issued two final judgments in favor of
515Mr. Bischoff for $2,381.41 and $1,297.23 for each of the two
528residences on which Mr. Bischoff performed as Respondent's
536subcontractor. Neither Respondent nor Accurate ever satisfied
543all, or part, of either judgment.
549CONCLUSIONS OF LAW
5528. The Division of Administrative Hearings has jurisdiction
560over the subject matter and parties. The parties were duly
570noticed for the administrative hearing.
5759. Petitioner has the burden of proof in this proceeding.
585Petitioner must show by clear and convincing evidence that
594Respondent committed the acts alleged in the Administrative
602Complaint and the reasonableness of any proposed penalty.
610Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). Petitioner
620satisfied its burden of proof.
62510. Section 489.129(1)(r), in relevant part, authorizes
632appropriate penalties to be imposed against the license of any
642contractor who fails
645. . . to satisfy within a reasonable time, (sic)
655the terms of a civil judgment obtained against the
664licensee, or the business organization qualified
670by the licensee, relating to the practice of the
679licensee's profession.
68111. Respondent violated the provisions of Section
688489.129(1)(r). Respondent is a licensed contractor. On
695July 10, 1995, a civil judgment was obtained against Respondent
705and Accurate, the business organization qualified by Respondent.
71312. The judgments related to the practice of Respondent as
723a licensed contractor. Section 489.1195(1)(a), in relevant part,
731provides that Respondent, as the primary qualifying agent for
740Accurate, is
742. . . jointly and equally responsible for
750supervision of all operations of the business
757organization; for all field work at all sites; and
766for financial matters, both for the organization
773in general and for each specific job.
78013. Approximately 24 months have elapsed since two
788judgments were obtained against Respondent and Accurate. Rule
79661G4-b17.001(23) provides that a reasonable time in which to
805satisfy a judgment is 90 days after the time for appeal. Neither
817Respondent nor Accurate appealed the judgments against them and
826neither has satisfied either judgment.
83114. Rule 61G4-17.001 prescribes guidelines for imposing a
839penalty in this case. For the first violation of Section
849489.129(1)(r), Rule 61G4-17.001(18) authorizes a fine of $500 to
858$1,000. For a repeat violation, the rule authorizes a fine of
870$1,000 to $5,000, probation, suspension, or revocation.
87915. In its PRO, Petitioner seeks revocation of Respondent's
888license. Petitioner also seeks the imposition of a fine of
898$1,000 and assessment of the costs of investigating and
908prosecuting this case.
91116. Rule 61G4-17.003 defines a "repeat violation" as any
920violation
921. . . on which disciplinary action is being taken
931where the same licensee had previously had
938disciplinary action taken against him or received
945a letter of guidance in a prior case. . . .
95617. Respondent did not commit a repeat violation within the
966meaning of Rule 61G4-17.003. Petitioner presented no evidence
974that "the same licensee had previously had disciplinary action
983taken against him."
98618. In the absence of a repeat violation, the maximum
996penalty authorized in Rule 61G4-17.001(18) is $1,000.
1004Petitioner's rules do not authorize an assessment of costs
1013associated with the investigation and prosecution of this case,
1022unless there is a repeat violation.
102819. Rule 61G4-17.002 lists several factors that may be
1037considered as aggravating or mitigating circumstances in
1044determining an appropriate penalty. Those factors include
1051monetary or other damage to Respondent's customers, actual job-
1060site violations, the severity of the offense, the danger to the
1071public, the number of repetitions of the offenses, the number of
1082complaints filed against the licensee, actual damage to the
1091customer, the deterrent effect of any penalty imposed, and the
1101effect of the penalty on the licensee's livelihood.
110920. There are several aggravating circumstances present in
1117this case. Respondent's customers were damaged by incurring the
1126expense of removing the liens of Mr. Bischoff from their
1136property. The title to their property was clouded for a
1146substantial period. There was more than one unsatisfied
1154judgment. Respondent's actions represent a danger to the public
1163in the form of financial harm.
116921. There are several mitigating circumstances present in
1177this case. Respondent did not commit any actual job-site
1186violations of building codes, gross negligence, incompetence, or
1194misconduct. Although the two judgments total more than $3,600,
1204the amount not satisfied by Respondent is not severe as a
1215proportion of the price of the home or in terms of the potential
1228for financial harm to each homeowner.
123422. There were only two offenses. Neither party presented
1243any evidence that the imposition of a fine from $500 to $1,000
1256would, or would not, have a deterrent effect on Respondent.
1266Neither party presented any evidence of the effect that such a
1277penalty would have on Respondent's livelihood.
128323. The aggravating circumstances far outweigh the
1290mitigating circumstances in this case. Petitioner should impose
1298the maximum fine authorized in Petitioner's rules.
1305RECOMMENDATION
1306Based upon the foregoing Findings of Fact and Conclusions of
1316Law, it is
1319RECOMMENDED that Petitioner enter a Final Order finding
1327Respondent guilty of violating Section 489.129(1)(r) and imposing
1335an administrative fine of $1,000.
1341DONE AND ENTERED this 29th day of July, 1997, in
1351Tallahassee, Leon County, Florida.
1355___________________________________
1356DANIEL MANRY
1358Administrative Law Judge
1361Division of Administrative Hearings
1365The DeSoto Building
13681230 Apalachee Parkway
1371Tallahassee, Florida 32399 -3060
1375(904) 488 - 9675 SUNCOM 278-9675
1381Fax Filing (904) 921-6847
1385Filed with the Clerk of the
1391Division of Administrative Hearings
1395this 29th day of July, 1997.
1401ENDNOTES
14021/ All references to chapters and sections are to Florida
1412Statutes (1995) unless otherwise stated.
14172/ Unless otherwise stated, all references to rules are to rules
1428promulgated in the Florida Administrative Code in effect as of
1438the date of this Recommended Order.
1444COPIES FURNISHED:
1446Rodney Hurst, Executive Director
1450Construction Industry Licensing Board
1454Department of Business and
1458Professional Regulation
14607960 Arlington Expressway, Suite 300
1465Jacksonville, Florida 32211-7467
1468Lynda Goodgame, General Counsel
1472Department of Business and
1476Professional Regulation
1478Northwood Centre
14801940 North Monroe Street
1484Tallahassee, Florida 32399-0792
1487John L. Chaves, Senior Attorney
1492Department of Business and
1496Professional Regulation
14981940 North Monroe Street, Suite 60
1504Tallahassee, Florida 32399-0792
1507Robert E. Poindexter, pro se
15122545 Burns Avenue
1515Melbourne, Florida 32935
1518NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1524All parties have the right to submit written exceptions within 15
1535days from the date of this Recommended Order. Any exceptions to
1546this Recommended Order should be filed with the agency that will
1557issue the final order in this case.
- Date
- Proceedings
- Date: 07/07/1997
- Proceedings: (Respondent) Proposed Recommended Order filed.
- Date: 06/30/1997
- Proceedings: Petitioner`s Proposed Recommended Order filed.
- Date: 06/20/1997
- Proceedings: Transcript of Hearing filed.
- Date: 05/23/1997
- Proceedings: CASE STATUS: Hearing Held.
- Date: 05/16/1997
- Proceedings: Amended Notice of Hearing (As to the Room Location) sent out. (hearing set for 5/23/97; 1:30pm; Melbourne)
- Date: 04/11/1997
- Proceedings: Notice of Hearing sent out. (hearing set for 5/23/97; 1:30pm; Melbourne)
- Date: 03/21/1997
- Proceedings: Petitioner`s Response to Initial Order filed.
- Date: 03/11/1997
- Proceedings: Initial Order issued.
- Date: 03/07/1997
- Proceedings: Agency Referral letter; Administrative Complaint; Election of Rights filed.