97-000906 Construction Industry Licensing Board vs. James Randolph O?Brien Status: Closed Recommended Order on Wednesday, July 16, 1997.

Summary: Plumbing contractor, in his capacity as qualifying agent, is guilty of failing to honor warranty and to include license number on contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Case No. 97-0906

) 1

JOHN RANDOLPH O'BRIEN , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on June 11, 1997, by video teleconference at sites in

Fort Lauderdale and Tallahassee, Florida, before Stuart M.

Lerner, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ruby Seymour-Barr, Senior Attorney

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in

the Amended Administrative Complaint?

2. If so, what punitive action should be taken against

Respondent?

PRELIMINARY STATEMENT

On November 13, 1995, the Department of Business and

Professional Regulation (Department) issued a two-count Amended

Administrative Complaint against Respondent. The Amended

Administrative Compliant alleged that, in his capacity as the

primary qualifying agent for a business organization, A'Aabbott

Plumbing, Inc. ( A'Aabbott), which had entered into a written

agreement with Nereo Agostinelli to install a drain field on

Agostinelli's property, Respondent engaged in conduct, (in

connection with that project) in violation of Section

489.129(1)(n), Florida Statutes, (Count I) and Section

489.119(5)(b), Florida Statutes, and therefore also Section

489.129(1)(j), Florida Statutes, (Count II). On February 27,

1997, the matter was referred to the Division of Administrative

Hearings for the assignment of an Administrative Law Judge to

conduct a Section 120.57(1) hearing on the allegations against

Respondent.

The hearing was scheduled for June 11, 1997. The Department

and Respondent were provided with written notice of the hearing

in accordance with Section 120.569(2)(b), Florida Statutes. 2

The Department appeared at the hearing, which was held as

scheduled on June 11, 1997, through one of its Senior Attorney,

Ruby Seymour-Barr, Esquire. Respondent did not make an

appearance, either in person or through counsel or an authorized

representative.

At the hearing, the Department presented the testimony of

one witness, Nereo Agostinelli. It also offered into evidence

nine exhibits (Petitioner's Exhibit's 2, 3, 9 through 13, 15, and

16). All nine exhibits were received by the undersigned.

At the conclusion of the evidentiary portion of the hearing,

the undersigned, on the record, announced that proposed

recommended orders had to be filed no later than ten days after

the undersigned's receipt of the transcript of the hearing. The

undersigned received the transcript of the hearing on June 27,

1997. On July 8, 1997, the Department filed a proposed

recommended order, which the undersigned has carefully

considered. Accompanying the Department's proposed recommended

order was an affidavit from Kelly Goodman, the custodian of the

Department's Complaint Cost Summary Report records. 3 To date,

Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record

as a whole, the following Findings of Fact are made:

1. Respondent is a plumbing contractor.

2. He is now, and has been at all times material to the

instant case, licensed to engage in the plumbing contracting

business in the State of Florida.

3. His license number is CF C020307.

4. At all times material to the instant case, Respondent

was the primary qualifying agent for A'Aabbott, a plumbing

contracting business located in Fort Lauderdale, Florida.

5. In August of 1992, A'Aabbott entered into a written

contract (Contract) with Nereo Agostinelli in which it agreed,

for $3,225.00, "[t]o furnish labor and materials to install [on

Agostinelli's property in Plantation, Florida a] 600 sq. ft.

drain field to all codes at standard practice." Respondent

signed the Contract on behalf A'Aabbott. His license number,

however, was not written or otherwise displayed on the Contract.

6. The Contract contained the following warranty provision:

"3 year conditional warranty-must upkeep interior plumbing."

7. Agostinelli paid the $3,225.00 Contract price by check.

8. A'Aabbott thereafter installed a 600 square foot drain

field on Agostinelli's property, as it had agreed to do.

9. Approximately two days after it had been installed

(which was within the three-year warranty period), the system

failed and raw sewage backed up into Agostinelli's residence on

the property.

10. The system failed because pipe that A'Aabbott had

installed as part of the project had been cracked during

installation by a large rock and had become clogged with soil and

therefore could not carry effluent to the drain field.

11. The "interior plumbing" that Agostinelli was required

maintain as a prerequisite to his receiving the benefit of the

Contract's "3 year conditional warranty" did not cause the

failure of the system.

12. Agostinelli made numerous attempts to contact A'Aabbott

and request that it fix the problem, as A'Aabbott was required to

do under the Contract.

13. When Agostinelli spoke with Respondent, Respondent told

him that A'Aabbott had no intention of doing anything further for

him.

14. Although A'Aabbott was made aware of the system's

failure, it failed to take any action to repair the system.

15. Sewage continued to back up into Agostinelli's

residence. On three occasions, Agostinelli had Raider Rooter

Sewer and Drain Cleaning, Inc., (Raider Rooter) come to his

residence and remove sewage. The total cost to Agostinelli of

Raider Rooter's services was $355.00. Agostinelli would not have

incurred these costs had the system installed by A'Aabbott not

failed.

16. Having been unsuccessful in his efforts to have

A'Aabbott honor its warranty under the Contract, Agostinelli

contracted with B and N Dozing and Bobcat Service (B and N), on

or about March 23, 1993, to make the necessary repairs to the

system.

17. He paid B and N $670.00 to make these repairs.

18. There have not been any problems with the system since

it was repaired by B and N.

CONCLUSIONS OF LAW

19. The Department has been vested with the statutory

authority to issue licenses to those qualified applicants seeking

to engage in the plumbing contracting business in the State of

Florida. Section 489.115, Florida Statutes.

20. A business entity, like A'Aabbott, may obtain such a

license, but only through a licensed "qualifying agent." Section

489.119, Florida Statutes.

21. There are two types of "qualifying agents": "primary

qualifying agents" and "secondary qualifying agents."

22. A "primary qualifying agent" is defined in subsection

(4) of Section 489.105, Florida Statutes, as follows:

"Primary qualifying agent" means a person who

possesses the requisite skill, knowledge, and

experience, and has the responsibility to

supervise, direct, manage and control the

contracting activities of the business

organization with which he is connected; who

has the responsibility to supervise, direct,

manage, and control construction activities

on a job for which he has obtained the

building permit; and whose technical and

personal qualifications have been determined

by investigation and examination as provided

in this part, as attested by the

[D] epartment.

23. A "secondary qualifying agent" is defined in subsection

(5) of Section 489.105, Florida Statutes, as follows:

"Secondary qualifying agent" means a person

who possesses the requisite skill, knowledge,

and experience, and has the responsibility to

supervise, direct, manage, and control

construction activities on a job for which he

has obtained a permit, and whose technical

and personal qualifications have been

determined by investigation and examination

as provided in this part, as attested by the

[D] epartment.

24. The "responsibilities" of "qualifying agents" are

further described in Section 489.1195, Florida Statutes, which

provides, in pertinent part, as follows:

(1) A qualifying agent is a primary

qualifying agent unless he is a secondary

qualifying agent under this section.

(a) All primary qualifying agents for a

business organization 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. . . .

(3)(d) Any change in the status of a

qualifying agent is prospective only. A

qualifying agent is not responsible for his

predecessor's actions but is responsible,

even after a change in status, for matters

for which he was responsible while in a

particular status.

25. The Construction Industry Licensing Board (Board) may

take any of the following punitive actions against a contractor

serving as the "primary qualifying agent" for a business entity

if (a) an administrative complaint is filed alleging that the

contractor or the business entity committed any of the acts

proscribed by Section 489.129(1), Florida Statutes, and (b) it is

shown that the allegations of the complaint are true: revoke or

suspend the contractor's license; place the contractor on

probation; reprimand the contractor; deny the renewal of the

contractor's license; impose an administrative fine not to exceed

$5,000.00 per violation; require financial restitution to the

victimized consumer(s); require the contractor to take continuing

education courses; or assess costs associated with the

Department's investigation and prosecution. Proof greater than a

mere preponderance of the evidence must be submitted. Clear and

convincing evidence is required. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); McKinney v.

Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v.

Castor , 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v.

Department of Business and Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of

Business Regulation , 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v.

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992); Newberry v. Florida Department of Law Enforcement , 585

So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of

Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988); Section

120.57(1)(h), Florida Statutes("[f] indings of fact shall be based

on a preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute"). "'[C] lear 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 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

belief 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, with approval, from Slomowitz v.

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

the punitive action taken against the contractor may be based

only upon those offenses specifically alleged in the

administrative complaint. See Cottrill v. Department of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); 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).

26. The Amended Administrative Complaint issued in the

instant case alleges that punitive action should be taken against

Respondent for violations of Section 489.129(1)(n), Florida

Statutes (Count I) and Section 489.119(5)(b), Florida Statutes,

and therefore also Section 489.129(1)(j), Florida Statutes (Count

II), which were committed in connection with a drain field

installation project that A'Aabbott undertook and completed for

Nereo Agostinelli at a time when Respondent was A'Aabbott's

primary qualifying agent.

27. At all times material to the instant case, Section

489.129(1)(n), Florida Statutes, has authorized the Board to take

punitive action against a contractor if the contractor or the

business entity for which the contractor is a primary qualifying

agent:

Commit[s] incompetency or misconduct in the

practice of contracting.

"[I] ncompetency or misconduct in the practice of contracting," as

used Section 489.129(1)(n), Florida Statutes, includes the

"[f] ailure to honor a warranty." Rule 61G4-17.001(14)(a),

Florida Administrative Code.

28. At all times material to the instant case, Section

489.129(1)(j), Florida Statutes, has authorized the Board to take

punitive action against a contractor if the contractor or the

business entity for which the contractor is a primary qualifying

agent:

Fail[s] in any material respect to comply

with the provisions of this part or

violat[ es] a rule or lawful order of the

[B] oard.

As noted in the Amended Administrative Complaint issued in this

case, among "the provisions of this part" (Part I of Chapter 489,

Florida Statutes) in effect at the time A'Aabbott and Agostinelli

entered into the Contract was the provision (in Section

489.119(5)(b), Florida Statutes) requiring that "the registration

or certification number of each contractor . . . appear in

any . . . advertising medium used by the contractor." At all

times material to the instant case, former Rule 21E-12.011 (now

Rule 61G4-12.011), Florida Administrative Code, provided, in

pertinent part, that, as used in Chapter 489, Florida Statutes,

"the terms 'advertise' and 'advertises' shall apply to . . .

contracts."

29. The foregoing statutory provisions are "in

effect, . . . penal statute[s] . . . This being true the[y] must

be strictly construed and no conduct is to be regarded as

included within [them] that is not reasonably proscribed by

[them]. Furthermore, if there are any ambiguities included such

must be construed in favor of the . . . licensee." Lester v.

Department of Professional and Occupational Regulations , 348 So.

2d 923, 925 (Fla. 1st DCA 1977); see also Whitaker v. Department

of Insurance and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA

1996)("[b] ecause the statute [Section 626.954(1)(x)4, Florida

Statutes] is penal in nature, it must be strictly construed with

any doubt resolved in favor of the licensee").

30. An examination of the evidentiary record in the instant

case reveals that the Department has clearly and convincingly

established that Respondent, in his capacity as A'Aabbott's

primary qualifying agent, committed the violations alleged in

Counts I and II of the Amended Administrative Complaint.

Punitive action against Respondent is therefore warranted.

31. In determining the particular punitive action the Board

should take against Respondent for having committed these

violations, it is necessary to consult Chapter 61G4-17, Florida

Administrative Code, which contains the Board's "penalty

guidelines." Cf. Williams v. Department of Transportation , 531

So. 2d 994, 996 (Fla. 1st DCA 1988)(an agency is required to

comply with its disciplinary guidelines in taking disciplinary

action against its employees).

32. Rule 61G4-17.001, Florida Administrative Code,

provides, in pertinent part, as follows:

Normal Penalty Ranges. The following

guidelines shall be used in disciplinary

cases, absent aggravating or mitigating

circumstances and subject to the other

provisions of this Chapter. . . .

(10) 489.129(1)(j): Failing in any material

respect to comply with the provisions of Part

I of Chapter 489. . . .

(e) 489.119: License number not appearing

in advertisement. First violation, $100;

repeat violation, reprimand and $250 to

$1,000 fine. . . .

(14) Misconduct or incompetency in the

practice of contracting as set forth in

Section 489.129(1)(n), Florida Statutes,

shall include, but is not limited to:

(a) Failure to honor a warranty. . .

(d) The following guidelines shall apply to

cases involving misconduct or incompetency in

the practice of contracting, absent

aggravating or mitigating circumstances:

1. Misconduct by failure to honor warranty.

First violation, $500 to $1,000 fine; repeat

violation, $1,000 to $2,000 fine and/or

probation, suspension, or revocation.

(20) For any violation occurring after

October 1, 1989, the [B] oard 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

aggravating factors set forth in rule 61G4-

17.002.

(21) For any violation occurring after

October 1, 1989, the [B] oard may order the

contractor to make restitution in the amount

of financial loss suffered by the consumer.

Such restitution may be ordered in addition

to the penalties provided in 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. . .

33. "Repeat violation," as used in Chapter 61G4-17, Florida

Administrative Code, is described in Rule 61G4-17.003, Florida

Administrative Code, 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 or 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 on the above list.

34. Rule 61G4-17.005, Florida Administrative Code, provides

that "[w]here several of the . . . violations [enumerated in

Rule 61G4-17.001, Florida Administrative Code] shall occur in one

or several cases being considered together, the penalties shall

normally be cumulative and consecutive."

35. The aggravating and mitigating circumstances which are

to be considered before a particular penalty is chosen are listed

in Rule 61G4-17.002, Florida Administrative Code. They are as

follows:

(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 to be 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 conditions 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 complaints 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.

36. Having considered the facts of the instant case in

light of the provisions of Chapter 61G4-17, Florida

Administrative Code, it is the view of the undersigned that the

appropriate punitive action to take against Respondent in the

instant case is to require him to pay a fine in the amount of

$1,100.00, to pay the amount of $1,025.00 in restitution to

Agostinelli, and to reimburse the Department (a) for all

reasonable costs associated with the investigation that led to

the filing of the charges set forth in the Amended Administrative

Complaint, 4 and (b) for all reasonable costs associated with its

successful prosecution of these charges. 5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order: (1)

finding Respondent guilty of the violations of Chapter 489,

Florida Statutes, alleged in Counts I and II of the Amended

Administrative Complaint, and (2) fining Respondent $1,100.00 for

having committed these violations and requiring him to pay

$1,025.00 to Agostinelli in restitution and to reimburse the

Department for all reasonable costs associated with the

Department's investigation and prosecution of the charges set

forth in the Amended Administrative Complaint.

DONE AND ENTERED this 16th day of July, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of July, 1997.

ENDNOTES

1 At the outset of the final hearing, pursuant to Petitioner's

request, the style of the instant case was amended to reflect

that Respondent's first name is John, not James.

2 Such notice was in the form of a Notice of Hearing by Video

Teleconference mailed to the Department and Respondent on

March 28, 1997.

3 The body of the affidavit reads as follows:

1. I, Kelly Goodman, am employed by the

Department of Business and Professional

Regulation and my duties include

responsibilities as the custodian of the

Complaint Cost Management System Complaint

Cost Summary Report records.

2. I have conducted a diligent search of the

official records of the Department pertaining

to Costs incurred by the Department pursuant

to Complaint Number 93-16388, Licensee Name:

John R. O'Brien; Complainant(s) Name(s):

Nereo F. Agostinelli.

3. In my capacity as custodian of the

records, I hereby certify that the attached

page entitled Complaint Management System,

Complaint Cost Summary is a true and correct

copy of the cost summary data compilation on

file with the Department.

4. The enclosed data compilation reflects

total costs recorded in the amount of $401.48

as of this date July 8, 1997.

5. It is the regular practice of the

Department to maintain Cost Summary Reports

on each complaint filed with the Department.

These Cost Summary reports are kept in the

regular course of business of the Department,

and are based upon information transmitted by

employees assigned to investigate, file, and

pursue the complaint through the

Administrative Complaint process contained in

Florida Statutes 120.57, and Florida Statutes

455 and 489.

4 Pursuant to Rule 61G4-12.018, Florida Administrative Code, the

Department is required

to submit to the Board an itemized listing of

all costs related to investigation and

prosecution of an administrative complaint

when said complaint is brought before the

Board for final agency action.

Fundamental fairness requires that the Board provide a respondent

with an opportunity to dispute and challenge the accuracy and/or

reasonableness of the Department's itemization of investigative

and prosecutorial costs before determining the amount of costs a

respondent will be required to pay.

5 The undersigned disagrees with the suggestion made by the

Department in its proposed recommended order that there is reason

to deviate from the "normal penalty ranges" in the instant case

and revoke Respondent's license. The Department has not shown

that the circumstances surrounding Respondent's violations are

significantly more "aggravating" than those which are typically

present when a contractor fails to honor a warranty in violation

of Section 489.129(1)(n), Florida Statutes, and fails to include

his license number on a contract in violation of Section

489.119(5)(b), Florida Statutes, and therefore also Section

489.129(1)(j), Florida Statutes.

COPIES FURNISHED :

Ruby Seymour-Barr, Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

John Randolph O'Brien

6823 Bayshore Drive

Lantana, Florida 33642

Rodney Hurst, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211

Lynda L. 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 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 the final order in this case.