97-001434 Construction Industry Licensing Board vs. Earl G. Burks Status: Closed Recommended Order on Monday, November 24, 1997.

Summary: Contractor, who served as qualifying agent for business, is responsible for business' failure to meet contractual duties and to satisfy judgment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY LICENSING )

BOARD )

)

Petitioner , )

)

vs. ) Case No. 97-1434

)

EARL G. BURKS , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

this case on October 28, 1997, by video teleconference at sites

in Miami and Tallahassee, Florida, before Stuart M. Lerner, a

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Senior Attorney

Seymour Stern, OPS Attorney

Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N-607

Miami, Florida 33128

For Respondent: Earl G. Burks, pro se

12350 Southwest 132nd Court, No. 205

Miami, Florida 33186

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in

the Administrative Complaint.

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

Respondent.

PRELIMINARY STATEMENT

On September 25, 1996, the Department of Business and

Professional Regulation (Department) issued an Administrative

Complaint against Respondent. Paragraphs 1 through 16 of the

Administrative Complaint alleged the following:

1. Petitioner is the state agency charged

with regulating the practice of contracting

pursuant to Section 20.165, Florida Statutes,

and Chapters 455 and 489, Florida Statutes.

2. Respondent is, and has been at all times

material hereto, a Certified General

Contractor, in the State of Florida, having

been issued license number CG C047384.

3. Respondent's last known address is 12350

S.W. 132nd Court, Miami, FL 33186.

4. At all times material hereto, Respondent

(hereinafter referred to as "Contractor") was

the licensed qualifier for ANAC Services,

Inc., and was therefore responsible for the

acts, omissions, and financial responsibility

of the business as it relates to contracting.

5. On or about February 24, 1994, Respondent

entered into a verbal contract with Erycina

Webbe (hereinafter referred to as "Webbe") to

negotiate an insurance settlement and re-

construct Webbe's fire damaged home located

at 5510 N.W. 10th Avenue, Miami, FL 33127.

6. The verbal contract price was to be the

entire insurance settlement which was

$35,658.38.

7. Respondent received $30,658.38 of the

total contract price.

8. Respondent did not obtain a permit from

the Metro-Dade County Building Department.

9. Said construction began in or around

April, 1994, for about one-half day, at which

time Respondent ceased all construction

activities without just cause or notification

to Webbe.

10. At the time construction ceased,

Respondent had completed considerably less

than the agreed verbal contract price.

11. Respondent was not entitled to retain

said excess funds.

12. Respondent failed to refund or otherwise

reimburse Webbe.

13. On November 28, 1995, Respondent and

Webbe entered into a mediation agreement for

which Respondent agreed to a judgment against

him for $47,377.30 if he failed to recommence

construction on Webbe's residence including

obtaining building permits and receiving a

Certificate of Occupancy, and paying the

remainder of the money owed to Webbe within

thirty (30) days after completion of said

construction.

14. Respondent failed to comply with the

terms of the Mediation Agreement.

15. On July 5, 1996, Webbe obtained a Final

Judgment in the amount of $44,877.30 against

Respondent in Case Number 95-9669 CA 01, In

The Circuit Court Of The 11th Judicial

Circuit, In And For Dade County, Florida.

16. Respondent has failed to comply with the

terms of said judgment.

The Administrative Complaint further alleged that, based upon the

allegations of fact set forth in paragraphs 1 through 16,

Respondent was guilty of violating the following subsections of

Section 489.129, Florida Statutes: subsection (1)(h)2 (Count I);

subsection (1)(k) (Count II); subsection (1)(n) (Count III);

subsection (1)(p) (Count IV); and subsection (1)(r) (Count V).

Respondent subsequently requested a Section 120.57(1)

hearing on the allegations made in the Administrative Complaint.

On March 21, 1997, the matter was referred to the Division of

Administrative Hearings for the assignment of an administrative

law judge to conduct the Section 120.57(1) hearing Respondent had

requested.

As noted above, the hearing was held on October 28, 1997. 1

Two witnesses testified at the hearing. Erycina Webbe, the

homeowner referenced in the Administrative Complaint, testified

for the Department. Respondent testified in his own defense. In

addition to Webbe's and Respondent's testimony, 17 exhibits

(Petitioner's Exhibits 1 through 8, 10, and 11, and Respondent's

Exhibits 1 through 7) were offered and received into evidence.

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 November 17,

1997. The Department and Respondent filed their proposed

recommended orders on November 17, 1997, and November 18, 1997,

respectively. The parties' proposed recommended orders have been

carefully considered by the undersigned.

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 general contractor.

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

instant case, licensed to engage in the contracting business in

the State of Florida.

3. He has held license number CG C047384 since 1989.

4. Respondent is now, and has been since December 14, 1992,

the primary qualifying agent for ANAC Services, Inc. (ANAC), a

contracting business owned by Respondent and located in Miami,

Florida.

5. Erycina Webbe is a retired educator. She is now, and

has been for approximately the past 30 years, the owner of a

residence located at 5510 Northwest 10th Avenue in Miami, which

she uses as rental property (Rental Property).

6. In January of 1994, the Rental Property was extensively

damaged by fire. At the time, the tenants of the Rental Property

were Michelle Pogue and Vanessa Bartlett. Pogue and Bartlett are

Webbe's nieces. After the fire, Pogue and Bartlett had to move

out because the Rental Property was not in livable condition.

7. Webbe was insured against damage to the Rental Property

caused by fire. She therefore filed a claim with her insurer

seeking payment for the loss she suffered as a result of the fire

that damaged the Rental Property.

8. An insurance adjuster hired by Webbe's insurer initially

estimated that Webbe was due $27,678.29 under her insurance

policy for the damage to the Rental Property.

9. Webbe thereafter contacted Respondent and discussed with

him the possibility of her hiring him to repair the Rental

Property.

10. During the discussion, Respondent offered to help Webbe

obtain a larger insurance settlement than the $27,678.29 her

insurer had proposed to pay her.

11. Respondent, as promised, provided such assistance.

12. Webbe's insurer ultimately paid $35,658.38 in

settlement of Webbe's claim. Such payment was made by check

dated January 31, 1994 (Settlement Check).

13. The Settlement Check was made payable to Webbe and

ANAC.

14. On or about February 24, 1994, Webbe met Respondent at

a branch of the Great Western Bank, where ANAC maintained an

account. Webbe had with her the Settlement Check. She endorsed

the check and then gave it to Respondent, who deposited it in

ANAC's account at the bank. At the time of the deposit, the

account had a balance of $200.00. After the deposit was made,

Respondent, with the approval of the bank officer, withdrew

$10,000.00 from the account, $5,000.00 of which Respondent gave

to Webbe.

15. In endorsing the Settlement Check and giving it to

Respondent for deposit in ANAC's account, Webbe was fulfilling

her obligation under a verbal agreement (Contract) with

Respondent (acting on behalf of ANAC) to pay for the repairs

that, pursuant to the terms of the Contract, ANAC was to make to

the Rental Property (Project).

16. The Contract price for the Project was the amount of

the Settlement Check, less $5,000.00.

17. Respondent (on behalf of ANAC) agreed to start the

Project no later than March 28, 1994, and to complete it no later

June 28, 1994.

18. A building permit from the City of Miami was needed

before work on the project could begin. Respondent asked Webbe

to fill in her name, her address, and the address of the Rental

Property on a City of Miami building permit application form and

to sign the form. Webbe did so on March 29, 1994. She then

returned the form to Respondent for him to complete and submit to

the City of Miami.

19. Webbe did not agree to assume the responsibility of

obtaining the permit needed to begin the Project.

20. The responsibility, under the Contract, remained

ANAC's. 2

21. ANAC, however, did not obtain the permit, and the

deadline for the completion of the Project passed without any

Project work having been done.

22. Webbe retained the services of an attorney to assist

her in her efforts to have ANAC fulfill its contractual

obligation to complete the Project.

23. Webbe's attorney contacted Respondent.

24. Respondent (on behalf of ANAC) thereafter sent Webbe a

document entitled "Addendum to Contract between Mrs. Erycina R.

Webbe and ANAC Services, Inc." The document, which was signed by

Respondent and dated October 3, 1994, read as follows:

We hereby propose to start the reconstruction

project at 5510 N.W. 10th Avenue no later

than November 15, 1994. This project is to

be completed by February 15, 1995.

ANAC Services Inc. will compensate Mrs. Webbe

for loss [of] rent and the amount [will] be

mutually agreed upon by both parties.

25. ANAC did not complete the Project by February 15, 1994.

In fact, no work had been done as of that date.

26. There was no just cause for the delay in the

commencement of the Project.

27. On May 12, 1995, Webbe (through her attorney) filed a

complaint in Dade County Circuit Court (in Case No. 95-9669 CA

01), seeking a judgment for damages, plus interest and costs,

against ANAC and Respondent for breach of contract, conversion,

civil theft, and unjust enrichment.

28. Respondent was served with a copy of the complaint. He

responded to the complaint by submitting the following written

answer:

My written defense to the above summons is

that I'd like to complete t[he] construction

work @ Mrs. Webbe['s] residence if she would

allow us. And the amount of money is

$30,000.00 dollars not $35,000.00 as to the

contract amount. 3 Mr. Jacobi [ Webbe's

attorney] please work out a settlement

arrangement.

29. Webbe (along with her attorney) and Respondent (who was

not represented by counsel) participated in a court-ordered

mediation conference that was held on November 28, 1995.

30. At the mediation conference, the parties entered into a

Mediation Agreement settling their dispute. The Mediation

Agreement was signed by Webbe and Respondent (in his individual

capacity and in his capacity as President of ANAC). It read as

follows:

THE PARTIES have agreed to abide by the

following:

1. The Defendants agree to a Judgment

against them, jointly and severally, in the

amount of Forty-seven Thousand Seventy-seven

and 30/100 (Dollars).

2. Said Judgment shall be recorded upon the

filing of an Affidavit of Non-Compliance

filed by the Plaintiff as to any of the

following events:

a) If the Defendants do not commence

construction on the property located at 5510

N.W. Tenth Avenue, Miami, FL 33127, pursuant

to the attached Contract Proposal, on or

before January 1, 1996;

b) If the Defendants do not pay Two Thousand

Five Hundred and No/100 ($2,5000.00) Dollars

to the Plaintiff on or before January 1,

1996; or

c) If the Defendants do not complete the

aforementioned construction on or before

March 31, 1996.

3. Defendants shall be responsible for

compliance with the pulling of all permits

and securing a Certificate of Occupancy

within said time period.

4. Upon proper completion [of] the work,

including Certificate of Occupancy and

clearance of all violations presently on the

property, if any, Defendants will receive a

credit in the amount of Thirty-five Thousand

Six Hundred Fifty-eight and 38/100

($35,658.38) Dollars.

a) If work is complete by completion date,

as specified above, Defendants will receive

and additional credit of Four Thousand Five

Hundred and No/100 ($4,500.00) Dollars

against said Judgment.

b) The Defendants will have thirty (30) days

in order to pay the remainder of the amount

owed to Plaintiff.

c) If payment is not made within thirty (30)

days Plaintiff will apply for a Judgment by

Affidavit of Non-Compliance.

5. Each party shall bear their own costs and

fees.

31. The "attached Contract Proposal" (referred to paragraph

2a of the Mediation Agreement) provided, in pertinent part, as

follows:

We hereby propose to furnish the materials

and labor necessary for the completion of the

following:

EXTERIOR ROOF

Description

R/R/ damaged sheathing

Re-roof damaged roofing/shingles

Chem. clean soffit/repaint

EXTERIOR FRONT

Description

Clean pressure wash exterior; seal or prime

then paint with two finish coats

Paint exterior fascia/soffit

R/R ornamental iron- security grill door

R/R exterior door

Paint door exterior, per side

Paint door trim and jamb, per side

EXTERIOR RIGHT SIDE

Description

Stucco or exterior plaster repair

Clean stucco

Paint stucco

R/R two exterior doors @ utility room and

kitchen

EXTERIOR REAR

Description

Stucco or exterior plaster repair

Clean/paint stucco

Re-establish location of cable wires

R/R aluminum windows- 2 each

Install/paint baseboards

Replace interior door unit

Paint door/trim and jamb

Replace closet door

Paint closet door

Seal then paint the walls and ceiling

twice (3 coats)

Install rod in closet

Install carpet/tile as per owner's

specifications

ROOM: BEDROOM NO. 3/CLOSET

DESCRIPTION

R/R ceiling/wall drywall- hung, taped, light

texture , ready for paint

install Batt insulation

R/R aluminum windows- 2 each

I nstall/paint baseboards

R eplace interior door unit

P aint door/trim and jamb

R eplace closet door

S eal then paint the walls and ceiling

twice (3 coats)

Install rod in closet

Install carpet/tile as per owner's

specifications

EXTERIOR LEFT SIDE

Description

Clean/paint stucco

R/R damaged storm shutter

ROOM: BEDROOM NO. 1/CLOSET

DESCRIPTION

I nstall B att insulation

R/R ceiling drywall- hung taped, light

texture, ready for paint

Chem. clean window

Seal then paint the walls and ceiling

twice (3 coats)

R/R interior door unit

Paint door/trim and jamb

R/R bi-fold closet door

Paint door

Install carpet/tile as per owner's

specifications

ROOM: BEDROOM NO. 2/CLOSET

Description

R/R ceiling/wall drywall- hung taped, light

texture, ready for paint

Install Batt insulation

ROOM: HALL/CLOSET

Description

Chem. clean/seal then paint the walls and

ceiling twice (3 coats)

Install carpet/tile as per owner's

specifications

Install Batt insulation

ROOM: HALL BATH

Description

Chem. clean tub

Chem. clean toilet

R/R toilet seat

Chem. clean sink/faucet

Seal/paint walls/ceilings

Chem. clean window

Chem. clean tile/grout

Paint int. door/frame

R/R tub/shower door

Install Batt insulation

ROOM: KITCHEN

Description

Seal then paint the walls and ceiling

twice (3) coats

R/R cabinetry- lower base units

R/R cabinetry- upper wall units

R/R countertop- flat laid formica

R/R sink/faucet

Install Batt insulation

ROOM: LIVING ROOM/DINING ROOM

Description

Seal then paint the walls and ceiling

twice (3) coats

Chem. clean aluminum windows

Install carpet/tile as per owner's

specifications

MISCELLANEOUS

Description

R/R damaged main entrance panel

Upgrade electrical system to current S.F.B.C.

standards

Complete construction clean-up and debris

removal.

32. Respondent paid Webbe $2,500.00 in accordance with

paragraph 2b of the Mediation Agreement.

33. Although work on the Project (as described in the

"Contract Proposal" attached to the Mediation Agreement) began

prior to January 1, 1996, as required by paragraph 1a of the

Mediation Agreement, the Project was not finished, or even near

completion, as of June 25, 1996.

34. On that date, Webbe executed an Affidavit of Non-

Compliance, in which she asserted the following:

1. A Mediation Agreement was executed by the

parties.

2. Pursuant to said Agreement, Defendants

were to complete work by March 31, 1996.

3. No work is being done on the property and

said construction is not completed.

4. Defendants owe Plaintiff the amount of

Forty-four Thousand Eight Hundred Seventy-

seven and 30/100 ($44,877.30) Dollars.

35. Webbe filed this Affidavit of Non-Compliance in Dade

County Circuit Case No 95-9669 CA 01 on June 28, 1996.

36. On July 5, 1996, Dade County Circuit Court Judge Ronald

Friedman entered a Final Judgment in Dade County Circuit Case No

95-9669 CA 01, which provided as follows:

THIS CAUSE having been agreed to by the

parties, pursuant to a Mediation Agreement,

and after being duly advised in the premises,

it is hereby,

ORDERED AND ADJUDGED:

That the Defendants ANAC SERVICES, INC., AND

EARL G. BURKS, are hereby ordered to pay to

the Plaintiff, ERYCINA WEBBE, the amount of

Forty-four Thousand Eight Hundred Seventy-

seven and 30/100 ($44,877.30) Dollars for all

of which let execution issue.

A copy of the Final Judgment was furnished Respondent and ANAC.

37. The Final Judgment entered in Dade County Circuit Case

No 95-9669 CA 01 was not appealed, and it has not been vacated,

set aside, discharged, or fully satisfied.

38. ANAC has performed only a portion of the repair work it

agreed (through Respondent) to perform (and was paid in full to

perform) for Webbe. 4

39. At least some of the work was performed without the

appropriate building permit first having been obtained.

40. A building permit for the Project was first obtained in

May of 1997.

41. It was obtained by Webbe, after she had received

several code violation notices for unpermitted work on the Rental

Property.

42. Webbe has had to spend approximately $20,000.00 (in

addition to what she paid ANAC) to pay for repairs that ANAC was

supposed to make under the Contract.

43. The Rental Property is now in rentable condition,

although all of the repairs that ANAC (through Respondent) agreed

to make have yet to be made.

44. The Rental Property has been rented and occupied since

August 14, 1997.

45. Other than the $2,500.00 payment made in accordance

with paragraph 2b of the Mediation Agreement, Webbe has not been

refunded any of the Contract Price. 5

CONCLUSIONS OF LAW

46. The Department has been vested with the statutory

authority to issue licenses to those qualified applicants seeking

to engage in the building contracting business in the State of

Florida. Section 489.115, Florida Statutes.

47. A business entity, like ANAC, may obtain such a

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

489.119, Florida Statutes.

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

qualifying agents," and "secondary qualifying agents."

49. 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.

50. 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.

51. 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. . . .

52. 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 of the contractor's guilt 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 ("Findings 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); Chrysler v. Department of Professional Regulation ,

627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of

Business and Professional Regulation , 625 So. 2d 1237, 1238-39

(Fla. 2d DCA 1993); Arpayoglou v. Department of Professional

Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992); Willner v.

Department of Professional Regulation, Board of Medicine , 563 So.

2d 805, 806 (Fla. 1st DCA 1992); Celaya v. Department of

Professional Regulation, Board of Medicine , 560 So. 2d 383, 384

(Fla. 3d DCA 1990); Kinney v. Department of State , 501 So. 2d

129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of

Professional Regulation , 465 So. 2d 1324, 1325 (Fla. 1st DCA

1985); Hunter v. Department of Professional Regulation , 458 So.

2d 842, 844 (Fla. 2d DCA 1984).

53. The Administrative Complaint issued in the instant case

alleges that punitive action should be taken against Respondent

for violations of Section 489.129(1)(h)2, Florida Statutes (Count

I), Section 489.129(1)(k), Florida Statutes (Count II), Section

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

489.129(1)(p), Florida Statutes (Count IV) and Section

489.129(1)(r), Florida Statutes (Count V), which were committed

in connection with a residential construction project that ANAC

(through Respondent) agreed to undertake for Erycina Webbe at a

time when Respondent was ANAC's primary qualifying agent.

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

489.129(1)(h)2, 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] mismanagement or misconduct in the

practice of contracting. Financial

mismanagement or misconduct occurs

when: . . .

2. The contractor has abandoned a customer's

job and the percentage of completion is less

than the percentage of the total contract

price paid to the contractor as of the time

of abandonment, unless the contractor is

entitled to retain such funds under the terms

of the contract or refunds the excess funds

within 30 days after the date the job is

abandoned.

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

489.129(1)(k), 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:

Abandon[s] 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.

56. 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 "[c]ommit[s] incompetency or misconduct in the practice of

contracting."

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

489.129(1)(p), 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 "[p]roceeds on any job without obtaining applicable local

building department permits and inspections."

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

489.129(1)(r), 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] to satisfy within a reasonable time,

the terms of a civil judgment obtained

against the licensee, or the business

organization qualified by the licensee,

relating to the practice of the licensee's

profession.

59. The failure to satisfy a civil judgment in violation of

Section 489.129(1)(r), Florida Statutes, is a continuing offense

that is not completed until the judgment is satisfied. See Haupt

v. State , 499 So. 2d 16, 17 (Fla. 2d DCA 1986).

60. According to Rule 61G4-17.001(23), Florida

Administrative Code, "[f]or purposes of Section 489.129(1)(r),

F.S., 'reasonable time' means ninety (90) days following the

entry of a civil judgment that is not appealed." 6

61. A contractor may not defend against a charge of failing

to satisfy an unappealed civil judgment (in violation of Section

489.129(1)(r), Florida Statutes) by challenging the correctness

or the validity of the judgment. See The Florida Bar v. Onett ,

504 So. 2d 388, 389 (Fla. 1987); The Florida Bar v. Vernell , 374

So. 2d 473, 475 (Fla. 1979); Department of Health and

Rehabilitative Services v. Wood , 600 So. 2d 1298, 1300 (Fla. 5th

DCA 1992); McGraw v. Department of State, Division of Licensing ,

491 So. 2d 1193, 1195 (Fla. 1st DCA 1986).

62. A licensed contractor who "[f]ail[s] to satisfy within

a reasonable time, the terms of a civil judgment obtained against

the licensee, or the business organization qualified by the

licensee, relating to the practice of the licensee's profession,"

is guilty of violating Section 489.129(1)(r), Florida Statutes,

regardless of the licensee's ability to pay the judgment. The

failure to pay need not be willful for there to be such a

violation. Section 489.129(1)(r), Florida Statutes, was designed

to protect the public against contractors who fail to meet their

legal obligations, whether they have the financial ability to do

so or not.

63. 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)("Because

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.").

64. An examination of the evidentiary record in the instant

case reveals that the Department clearly and convincingly proved

(primarily through the testimony of Webbe 7 ) that the violations

alleged in Counts I through V of the Administrative Complaint

were committed and that these are violations for which Respondent

should be held liable. Punitive action against Respondent is

therefore warranted.

65. In determining the particular punitive action the

Department should take against Respondent for having committed

these violations alleged in the Administrative Complaint, it is

necessary to consult Chapter 61G4-17, Florida Administrative

Code, which contains the Board's "disciplinary guidelines." Cf .

Williams v. Department of Transportation , 531 So. 2d 994, 996

(Fla. 1st DCA 1988)(agency required to comply with its

disciplinary guidelines when taking disciplinary action against

its employees).

66. 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. . . .

(8) 489.129(1)(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. . . .

(11) 489.129(1)(k): Abandonment. First

violation, $500 to $2,000 fine; repeat

violation, revocation and $5,000 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.

(b) Violation of any provision of Chapter

61G4, Florida Administrative Code, or Chapter

489, Part I, F.S.

(c) Failure to abide by the terms of a

mediation agreement.

(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.

2. Violation of any provision of Chapter

61G4, Florida Administrative Code, or Chapter

489, Part I, F.S. First violation, $500 to

$1,000 fine; repeat violations $1,000 to

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

revocation.

3. Any other form of misconduct or

incompetency. First violation, $250 to

$1,000 fine and/or probation; repeat

violations $1,000 to $5,000 fine and/or

probation, suspension or revocation. . . .

(16) 489.129(1)(p): Proceeding on any job

without obtaining applicable local building

department permits and/or inspections.

(a) Late permits. Contractor pulls permit

after starting job but prior to completion of

same and does not miss any inspections.

First violation, $100 fine; repeat violation,

$500 to $1,000 fine.

(b) Failure to call for inspections. First

violation, $100 fine; repeat violation, $500

to $2,500 fine and probation, suspension, or

revocation.

(c) Job finished without a permit having

been pulled, or no permit until caught after

job, or late permit during the job resulting

in missed inspection or inspections. First

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

violation, $1,000 to $2,500 fine and/or

probation, suspension, or revocation. . . .

(18) Failure to satisfy a civil judgment

obtained against the licensee or the business

organization qualified by the licensee within

a reasonable time. First violation, $500 to

$1,000 fine and/or proof of satisfaction of

civil judgment; repeat violation, $1,000 to

$5,000 fine and/or proof of satisfaction of

civil judgment, probation, suspension or

revocation. . . .

(20) 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

aggravating factors set forth in rule 61G4-

17.002.

(21) For any violation occurring after

October 1, 1988, the board 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 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. . . .

(23) . . . . The Board will consider a

mutually agreed upon payment plan as

satisfaction of such a judgment so long as

the payments are current.

67. "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.

68. 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."

69. 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 8

circumstances.

70. 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: (a) pay a fine in the amount

of $4,500.00; (b) submit proof of satisfaction of the Final

Judgment entered against him in Dade County Court Case No. 95-

9669 CA 01; and (c) reimburse the Department for all reasonable

costs associated with the investigation that led to the filing of

the charges set forth in the Administrative Complaint 9 and for

all reasonable costs associated with its successful prosecution

of these charges. 10

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 alleged in all

five counts of the Administrative Complaint, and (2) disciplining

Respondent for having committed these violations by requiring him

to: (a) pay a fine of $4,500.00; (b) submit proof of

satisfaction of the Final Default Judgment entered in Dade County

Court Case No. 95-9669 CA; and (c) reimburse the Department for

all reasonable costs associated with the Department's

investigation and prosecution of the charges set forth in the

Administrative Complaint.

DONE AND ENTERED this 24th day of November, 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 24th day of November, 1997.

ENDNOTES

1 The hearing was originally scheduled to commence on July 23,

1997, but was continued, at Respondent's request.

2 This finding is based on Webbe's testimony concerning the

matter, which the undersigned finds more believable than

Respondent's testimony to the contrary.

3 The complaint had erroneously alleged that the Contract price

was the full amount of the Settlement Check, rather than said

amount, less $5,000.00.

4 Moreover, the repair work that ANAC has done has not been done

entirely to Webbe's satisfaction.

5 Respondent testified that he returned $30,000.00 to Webbe

shortly after depositing the Settlement Check in ANAC's account.

This testimony, which is not supported by any documentary

evidence, has been rejected because it is less credible than

Webbe's testimony to the contrary.

6 Because it merely clarified existing law (by defining the term

"reasonable time," as used in Section 489.129(1)(r), Florida

Statutes), Rule 61G4-17.001(23), Florida Administrative Code, may

be applied in cases where the alleged violation of Section

489.129(1)(r), Florida Statutes, occurred prior to its [Rule

61G4-17.001(23)'s] effective date. Cf. Agency for Health Care

Administration v. Associated Industries of Florida, Inc. , 678 So.

2d 1239, 1256 (Fla. 1996)("The law is clear in this state that

there can be no retroactive application of substantive law

without a clear directive from the legislature. However,

procedural provisions and modifications for the purposes of

clarity are not so restricted."); Nussbaum v. Mortgage Service

America Company , 913 F. Supp. 1548, 1557 (S.D. Fla. 1995)("A new

rule intended to clarify or apply the law to a new factual

setting does not constitute a substantive change in the law. A

rule meant to clarify an unsettled area of the law does not

change the law, but rather clarifies 'what the law according to

the agency is and has always been,' and 'is no more retroactive

in its operation than is a judicial determination construing and

applying a statute to a case in hand.'")

7 There is no "rule that a single witness's testimony can never

provide clear and convincing evidence that a licensing or

practice act has been violated." Werner v. Department of

Insurance and Treasurer , 689 So. 2d 1211, 1213 (Fla. 1st DCA

1997).

8 A licensee's penalty may not be increased beyond the "normal

penalty ranges" based upon acts of misconduct that are not

alleged in the administrative complaint. See Klein v. Department

of Business and Processional Regulation , 625 So. 2d 1237, 1238-39

(Fla. 2d DCA 1993); Bernal v. Department of Professional

Regulation, Board of Medicine , 517 So. 2d 113, 114 (Fla. 3d DCA

1987), approved , 531 So. 2d 967 (Fla. 1988).

9 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.

10 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 engages in the type of misconduct in

which it has been alleged and proven Respondent has engaged.

COPIES FURNISHED:

Theodore R. Gay, Senior Attorney

Seymour Stern, OPS Attorney

Department of Business

and Professional Regulation

401 Northwest Second Avenue, Suite N-607

Miami, Florida 33128

Earl G. Burks, pro se

12350 Southwest 132nd Court, No. 205

Miami, Florida 33186

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.