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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1683

)

ROCCO R. SODOMIRE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

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

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Leonardo N. Ort iz

Qualified Representative

Paul F. Kirsch, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Rocco R. Sodomire

3520 Sou theast 2nd Avenue

Cape Coral, Florida 33904

STATEMENT OF THE ISSUE

Whether Rocco R. Sodomire (Respondent) violated Section

489.129(1)(c) and (r) and Section 455.227(l)(o), Florida

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

against his license to practice contracting.

PRELIMINARY STATEMENT

On December 23, 1999, Construction Industry Licensing Board

(Petitioner), filed an Administrative Complaint, alleging that

Respondent violated laws regulating his professional activities

as a certified residential contractor. Specifically, the

Administrative Complaint alleged that Respondent: (1) failed to

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

obtained against him relating to the practice of contracting, in

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

practiced or offered to practice beyond the scope permitted by

law or accepted and performed professional responsibilities that

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

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

alleged that the aforementioned acts constituted violations of

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

allegations and requested a final hearing.

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

Administrative Hearings for assignment of an administrative law

judge.

At hearing, Petitioner presented the testimony of one

witness, Vincent Neglio. Petitioner offered and had 3 exhibits

received into evidence. Respondent testified on his own behalf

and had 1 exhibit admitted into evidence.

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

proposed recommended orders was 10 days from the date the

transcript was filed. A Transcript of the final hearing was

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

proposed recommended orders, Petitioner requested and was granted

an extension of time in which to file proposed recommended

orders. Petitioner timely filed Proposed Findings of Fact and

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

hearing submittal was filed by Respondent.

FINDINGS OF FACT

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

hereto, a Certified Residential Contractor in the State of

Florida, having been issued license number CR CO57213.

2. At all times material hereto, Respondent was not

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

Florida.

3. On or about November 1996, Respondent submitted a

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

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

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

Respondent began construction of a swimming pool and deck at

Mr. Neglio's residence.

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

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

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

pool project.

5. Respondent presented the proposal for the pool project

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

on the project; distributed funds to other contractors who worked

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

Mr. Neglio's home.

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

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

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

Record of Agreement between Respondent and Mr. Neglio whereby

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

the dispute involving the aforementioned pool project.

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

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

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

by Default against Respondent in favor of Vincent Neglio in the

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

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

based on the Agreement referenced in paragraph 6.

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

Vincent Neglio based on the Small Claims Court Record of

Agreement, referenced in paragraph 6 or the Final Judgment by

Default referenced in paragraph 7.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

10. Respondent, as a Certified Residential Contractor, is

charged with the responsibility of complying with the provisions

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

rules adopted pursuant thereto. Likewise, Respondent is subject

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

Statutes.

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

Florida Construction Industry Licensing Board is empowered to

revoke, suspend, or otherwise discipline the license of a

contractor who is found guilty of any of the grounds enumerated

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

(1) The Board may take any of the following

actions against any certificate holder or

registrant: place on probation or reprimand

the license, revoke, suspend, or deny the

issuance or renewal of the certificate or

registration, require financial restitution

to a consumer for financial harm directly

related to a violation of a provision of this

part, impose an administrative fine not to

exceed $5,000 per violation, require

continuing education, or assess costs

associated with investigation and

prosecution, if the contractor, financially

responsible officer, or business organization

for which the contractor is a primary

qualifying agent, a financially responsible

officer, or is a secondary qualifying agent

responsible under s. 489.1195 is found guilty

of any of the following acts:

* * *

(c) Violatin g any provision of Chapter 455.

* * *

(r) Failing 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.

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

pertinent part:

(1) The following acts constitute grounds

for which the disciplinary actions specified

in subsection (2) may be taken:

* * *

(o) Practicing or offering to practice

beyond the scope permitted by law or

accepting and performing professional

responsibilities the licensee knows, or has

reason to know, the licensee is not competent

to perform.

13. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. Ferris

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

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

(Fla. 1996).

14. Section 489.105, Florida Statutes, provides in relevant

part the following definitions:

(3) "Contractor" means the person who is

qualified for, and shall be only responsible

for, the project contracted for, and means,

except as exempted in this part, the person

who, for compensation, undertakes to, submits

a bid to, or does himself or herself or by

others construct, repair, alter, remodel, add

to, demolish, subtract from, or improve any

building or structure, including related

improvements to real estate, for others or

for resale to others; and whose job scope is

substantially similar to the job scope

described in one of the subsequent paragraphs

of this subsection:

* * *

(c) "Residential contractor" means a

contractor whose services are limited to

construction, remodeling, repair, or

improvement of one-family, two-family, or

three-family residences . . . .

15. Petitioner established by clear and convincing evidence

the allegations contained in Count I of the Administrative

Complaint. Count I alleges that Respondent practiced or offered

to practice beyond the scope permitted by law or accepted and

performed professional responsibilities the licensee knows, or

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

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

Statutes. The evidence established that Respondent is a

certified residential contractor. Accordingly, the scope of work

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

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

swimming pool is not within the scope of work permitted by

Respondent's residential contractor's license.

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

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

civil judgment within a reasonable amount of time in violation of

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

established that a civil judgment was entered against Respondent

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

hearing, Respondent had failed to satisfy the judgment.

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

authorize Petitioner to assess costs of investigation and

prosecution in addition to the penalties provided above. Rule

61G4-12.018, Florida Administrative Code, requires Petitioner to

submit to the Construction Industry Licensing Board a list of all

costs related to the investigation and prosecution of the

Administrative Complaint at the time the complaint is presented

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

affidavit submitted by Petitioner, its cost of investigation and

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

is in the amount of $858.97.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Construction In dustry Licensing Board

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

offenses alleged in Counts I and II of the Administrative

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

requires Respondent to pay restitution to Vincent Neglio in the

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

Petitioner $858.97, the costs incurred by Petitioner in the

investigation and prosecution of this proceeding.

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

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of November, 1999.

COPIES FURNISHED:

Paul F. Kirsch, Esquire

Leonardo N. Ortiz, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Rocco R. Sodomire

3520 Southeast 2nd Avenue

Cape Coral, Florida 33904

Rodney Hurst, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Barbara D. Auger, 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.