99-001683 Construction Industry Licensing Board vs. Rocco R. Sodomire
 Status: Closed
Recommended Order on Tuesday, November 23, 1999.


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Summary: Respondent practiced beyond the scope of his residential contractor`s license by agreeing to build an in-ground swimming pool.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 99-1683

31)

32ROCCO R. SODOMIRE, )

36)

37Respondent. )

39_________________________________)

40RECOMMENDED ORDER

42Pursuant to notice, a final hearing was held in this cause

53on August 9, 1999, by video conference between Tallahassee and

63Fort Myers, Florida, before Carolyn S. Holifield, a duly-

72designated Administrative Law Judge of the Division of

80Administrative Hearings.

82APPEARANCES

83For Petitioner: Leonardo N. Ort iz

89Qualified Representative

91Paul F. Kirsch, Esquire

95Department of Business and

99Professional Regulation

1011940 North Monroe Street, Suite 60

107Tallahassee, Florida 32399-0792

110For Respondent: Rocco R. Sodomire

1153520 Sou theast 2nd Avenue

120Cape Coral, Florida 33904

124STATEMENT OF THE ISSUE

128Whether Rocco R. Sodomire (Respondent) violated Section

135489.129(1)(c) and (r) and Section 455.227(l)(o), Florida

142Statutes, and if so, what disciplinary action should be taken

152against his license to practice contracting.

158PRELIMINARY STATEMENT

160On December 23, 1999, Construction Industry Licensing Board

168(Petitioner), filed an Administrative Complaint, alleging that

175Respondent violated laws regulating his professional activities

182as a certified residential contractor. Specifically, the

189Administrative Complaint alleged that Respondent: (1) failed to

197satisfy, within a reasonable time, the terms of a civil judgment

208obtained against him relating to the practice of contracting, in

218violation of Section 489.129(l)(r), Florida Statutes; and (2)

226practiced or offered to practice beyond the scope permitted by

236law or accepted and performed professional responsibilities that

244he knew, or had reason to know, he was not competent to perform,

257in violation of Section 455.227(1)(o), Florida Statutes. It was

266alleged that the aforementioned acts constituted violations of

274Section 489.129(1)(c), Florida Statutes. Respondent disputed the

281allegations and requested a final hearing.

287On April 12, 1999, the case was forwarded to the Division of

299Administrative Hearings for assignment of an administrative law

307judge.

308At hearing, Petitioner presented the testimony of one

316witness, Vincent Neglio. Petitioner offered and had 3 exhibits

325received into evidence. Respondent testified on his own behalf

334and had 1 exhibit admitted into evidence.

341At the conclusion of the hearing, the time set for filing

352proposed recommended orders was 10 days from the date the

362transcript was filed. A Transcript of the final hearing was

372filed on August 27, 1999. Prior to the time set for filing

384proposed recommended orders, Petitioner requested and was granted

392an extension of time in which to file proposed recommended

402orders. Petitioner timely filed Proposed Findings of Fact and

411Conclusions of Law under the extended time frame. No post-

421hearing submittal was filed by Respondent.

427FINDINGS OF FACT

4301. Respondent is, and has been at all times material

440hereto, a Certified Residential Contractor in the State of

449Florida, having been issued license number CR CO57213.

4572. At all times material hereto, Respondent was not

466licensed to do any swimming pool/spa contracting in the State of

477Florida.

4783. On or about November 1996, Respondent submitted a

487proposal to Vincent Neglio for the construction of a 28' x 14'

499in-ground swimming pool, a deck, and a screen enclosure at a cost

511of $15,000.00. Shortly thereafter, pursuant to the proposal,

520Respondent began construction of a swimming pool and deck at

530Mr. Neglio's residence.

5334. Prior to completion of t he pool project, Mr. Neglio

544paid Respondent a total of $14,200.00. Although Respondent

553received $14,200.00 from Vincent Neglio, he never completed the

563pool project.

5655. Respondent presented the proposal for the pool project

574to Mr. Neglio; accepted money from Mr. Neglio as payment for work

586on the project; distributed funds to other contractors who worked

596on the pool project; and performed work on the pool project at

608Mr. Neglio's home.

6116. On August 4, 1997, the County Court of the Twentieth

622Judicial Circuit in and for Lee County, Florida, Small Claims

632Division (Case Nos. 97-2569SP-RRS and 97-2570-SP-RRS), entered a

640Record of Agreement between Respondent and Mr. Neglio whereby

649Respondent was to pay Mr. Neglio a total of $2,600.00 to settle

662the dispute involving the aforementioned pool project.

6697. On January 13, 1998, the County Court of the Twentieth

680Judicial Circuit in and for Lee County, Florida, Small Claims

690Division, in the above-referenced cases entered a Final Judgment

699by Default against Respondent in favor of Vincent Neglio in the

710amount of $2,600.00, the payment amount required in the

720Agreement, as a result of Respondent's failing to pay monies

730based on the Agreement referenced in paragraph 6.

7388. To date, Respondent has failed to make any payments to

749Vincent Neglio based on the Small Claims Court Record of

759Agreement, referenced in paragraph 6 or the Final Judgment by

769Default referenced in paragraph 7.

774CONCLUSIONS OF LAW

7779. The Division of Administrative Hearings has

784jurisdiction over the parties and subject matter of this

793proceeding, pursuant to Section 120.57(1), Florida Statutes.

80010. Respondent, as a Certified Residential Contractor, is

808charged with the responsibility of complying with the provisions

817of Chapter 489, Part I, Florida Statutes, and all applicable

827rules adopted pursuant thereto. Likewise, Respondent is subject

835to the disciplinary guidelines of Chapter 489, Part I, Florida

845Statutes.

84611. Pursuant to Section 489.129(1), Florida Statutes, the

854Florida Construction Industry Licensing Board is empowered to

862revoke, suspend, or otherwise discipline the license of a

871contractor who is found guilty of any of the grounds enumerated

882in Section 489.129(1), Florida Statutes. That section provides:

890(1) The Board may take any of the following

899actions against any certificate holder or

905registrant: place on probation or reprimand

911the license, revoke, suspend, or deny the

918issuance or renewal of the certificate or

925registration, require financial restitution

929to a consumer for financial harm directly

936related to a violation of a provision of this

945part, impose an administrative fine not to

952exceed $5,000 per violation, require

958continuing education, or assess costs

963associated with investigation and

967prosecution, if the contractor, financially

972responsible officer, or business organization

977for which the contractor is a primary

984qualifying agent, a financially responsible

989officer, or is a secondary qualifying agent

996responsible under s. 489.1195 is found guilty

1003of any of the following acts:

1009* * *

1012(c) Violatin g any provision of Chapter 455.

1020* * *

1023(r) Failing to satisfy within a reasonable

1030time, the terms of a civil judgment obtained

1038against the licensee or the business

1044organization qualified by the licensee,

1049relating to the practice of the licensee's

1056profession.

105712. Section 455.227(1), Florida Statutes, states in

1064pertinent part:

1066(1) The following acts constitute grounds

1072for which the disciplinary actions specified

1078in subsection (2) may be taken:

1084* * *

1087(o) Practicing or offering to practice

1093beyond the scope permitted by law or

1100accepting and performing professional

1104responsibilities the licensee knows, or has

1110reason to know, the licensee is not competent

1118to perform.

112013. Petitioner has the burden of proving by clear and

1130convincing evidence the allegations against Respondent. Ferris

1137vs. Turlington , 510 So. 2d 292 (Fla. 1987); Department of Banking

1148and Finance v. Osborne Stern and Company , 670 So. 2d 932, 935

1160(Fla. 1996).

116214. Section 489.105, Florida Statutes, provides in relevant

1170part the following definitions:

1174(3) "Contractor" means the person who is

1181qualified for, and shall be only responsible

1188for, the project contracted for, and means,

1195except as exempted in this part, the person

1203who, for compensation, undertakes to, submits

1209a bid to, or does himself or herself or by

1219others construct, repair, alter, remodel, add

1225to, demolish, subtract from, or improve any

1232building or structure, including related

1237improvements to real estate, for others or

1244for resale to others; and whose job scope is

1253substantially similar to the job scope

1259described in one of the subsequent paragraphs

1266of this subsection:

1269* * *

1272(c) "Residential contractor" means a

1277contractor whose services are limited to

1283construction, remodeling, repair, or

1287improvement of one-family, two-family, or

1292three-family residences . . . .

129815. Petitioner established by clear and convincing evidence

1306the allegations contained in Count I of the Administrative

1315Complaint. Count I alleges that Respondent practiced or offered

1324to practice beyond the scope permitted by law or accepted and

1335performed professional responsibilities the licensee knows, or

1342has reason to know, the licensee is not competent to perform in

1354violation of Sections 455.227(1)(o) and 489.129(1)(c), Florida

1361Statutes. The evidence established that Respondent is a

1369certified residential contractor. Accordingly, the scope of work

1377that he is authorized to perform is limited to the work described

1389in Section 489.105(3)(c), Florida Statutes. Construction of a

1397swimming pool is not within the scope of work permitted by

1408Respondent's residential contractor's license.

141216. With regard to Count II, Petitioner has met its burden.

1423Count II alleges that Respondent failed to satisfy the terms of a

1435civil judgment within a reasonable amount of time in violation of

1446Section 489.129(1)(r), Florida Statutes. The undisputed evidence

1453established that a civil judgment was entered against Respondent

1462on January 13, 1998, and that as of the date of this final

1475hearing, Respondent had failed to satisfy the judgment.

148317. Sections 48 9.129(1) and 455.227(3), Florida Statutes,

1491authorize Petitioner to assess costs of investigation and

1499prosecution in addition to the penalties provided above. Rule

150861G4-12.018, Florida Administrative Code, requires Petitioner to

1515submit to the Construction Industry Licensing Board a list of all

1526costs related to the investigation and prosecution of the

1535Administrative Complaint at the time the complaint is presented

1544to the Board for final agency action. As evidenced by the

1555affidavit submitted by Petitioner, its cost of investigation and

1564prosecution, excluding costs associated with an attorney's time,

1572is in the amount of $858.97.

1578RECOMMENDATION

1579Based upon the foregoing Findings of Fact and Conclusions of

1589Law, it is hereby

1593RECOMMENDED that the Construction In dustry Licensing Board

1601enter a final order that: (1) finds Respondent committed the

1611offenses alleged in Counts I and II of the Administrative

1621Complaint and imposes a $500.00 fine for these violations; (2)

1631requires Respondent to pay restitution to Vincent Neglio in the

1641amount of $2,600.00; and (3) requires Respondent to pay to

1652Petitioner $858.97, the costs incurred by Petitioner in the

1661investigation and prosecution of this proceeding.

1667DONE AND ENTERED this 23rd day of November, 1999, in

1677Tallahassee, Leon County, Florida.

1681___________________________________

1682CAROLYN S. HOLIFIELD

1685Administrative Law Judge

1688Division of Administrative Hearings

1692The DeSoto Building

16951230 Apalachee Parkway

1698Tallahassee, Florida 32399-3060

1701(850) 488-9675 SUNCOM 278-9675

1705Fax Filing (850) 921-6847

1709www.doah.state.fl.us

1710Filed with the Clerk of the

1716Division of Administrative Hearings

1720this 23rd day of November, 1999.

1726COPIES FURNISHED:

1728Paul F. Kirsch, Esquire

1732Leonardo N. Ortiz, Qualified Representative

1737Department of Business and

1741Professional Regulation

17431940 North Monroe Street, Suite 60

1749Tallahassee, Florida 32399-0792

1752Rocco R. Sodomire

17553520 Southeast 2nd Avenue

1759Cape Coral, Florida 33904

1763Rodney Hurst, Executive Director

1767Construction Industry Licensing Board

1771Department of Business and

1775Professional Regulation

17777960 Arlington Expressway, Suite 300

1782Jacksonville, Florida 32211-7467

1785Barbara D. Auger, General Counsel

1790Department of Business and

1794Professional Regulation

17961940 North Monroe Street

1800Tallahassee, Florida 32399-0792

1803NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1809All parties have the right to submit written exceptions within 15

1820days from the date of this Recommended Order. Any exceptions to

1831this Recommended Order should be filed with the agency that will

1842issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/15/2004
Proceedings: Final Order filed.
PDF:
Date: 02/21/2000
Proceedings: Agency Final Order
PDF:
Date: 11/23/1999
Proceedings: Recommended Order
PDF:
Date: 11/23/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 8/9/99.
Date: 09/15/1999
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 09/14/1999
Proceedings: Order sent out. (time for filing proposed recommended orders is extended until 9/17/99)
Date: 09/09/1999
Proceedings: Petitioner`s Motion for Extension of Time filed.
Date: 08/27/1999
Proceedings: Transcript of Proceedings filed.
Date: 08/09/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 08/06/1999
Proceedings: Order Authorizing Appearance of Qualified Representative sent out. (Leonardo N. Ortiz)
Date: 08/05/1999
Proceedings: Petitioner`s Motion to Accept Qualified Representative; Affidavit of Leonardo N. Ortiz filed.
Date: 07/09/1999
Proceedings: (Petitioner) Prehearing Stipulation filed.
Date: 05/17/1999
Proceedings: Order of Pre-hearing Instructions sent out.
Date: 05/14/1999
Proceedings: Notice of Video Hearing sent out. (Hearing set for August 9, 1999; 9:00 a.m.; Fort Myers and Tallahassee, Florida)
Date: 04/29/1999
Proceedings: (Petitioner) Response to Initial Order filed.
Date: 04/19/1999
Proceedings: Initial Order issued.
Date: 04/12/1999
Proceedings: Agency Referral Letter; Administrative Complaint; Election of Rights filed.

Case Information

Judge:
CAROLYN S. HOLIFIELD
Date Filed:
04/12/1999
Date Assignment:
05/03/1999
Last Docket Entry:
07/15/2004
Location:
Fort Myers, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

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