STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0700

)

ALEXANDER R. ROBINSON, )

)

Respondent. )

)

RECOMMENDED ORDER

The Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a hearing in the above-styled case on April 2, 1990, on respondent's motion for summary recommended order.

APPEARANCES

For Petitioner: Robert G. Harris

Qualified Representative

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Ira C. Hatch, Jr., Esquire

Houston, Shahady & Hatch

100 Northeast Third Avenue, Suite 900 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

At issue is whether respondent's motion for summary recommended order should be granted.

STATEMENT OF THE CASE

1. Petitioner, Department of Professional Regulation, filed an administrative complaint on behalf of the Construction Industry Licensing Board against respondent Alexander P. Robinson. The administrative complaint contained the following factual allegations:

   
   

   1. Petitioner is the state agency charged with regulating the practice of construction pursuant to Section 20.30, Florida Statutes, and Chapter 455 and 489, Florida Statutes.

   2. Respondent is, and has been at all times hereto, a certified residential contractor and registered general contractor, in the State of Florida, having been issued license number(s) CR C012948 and RG 0011178.

   3. Respondent's last known address is d/b/a Robinson Construction, Inc., 1125 N.W. 27th Avenue, Ft. Lauderdale, Florida 33311.

   4. On or about October 13, 1987, the South Florida Water Management District, hereinafter referred to as the District, erroneously mailed check NO. 50904, dated October 9, 1987, in the amount of

      $70,920.00, to the Respondent. The check should have been sent to Robinson Construction Company, which is a contractor that did work for the District. The Respondent did not do business with the District.

   5. On or about October 15, 1987, the Respondent deposited the check in a business account at Barnett Bank, 1 East Broward Boulevard, Ft. Lauderdale, Florida.

   6. On or about October 27, 1987, the District realized that the check had been made payable to and sent to the wrong party.

   7. The District was unable to contact the Respondent by telephone.

   8. Two employees of the District, Tom Thayer and Edwin J. Hill, Jr., met the Respondent at the job site of one of the Respondent's jobs. The Respondent refused to identify himself.

   9. Investigation revealed that the man who refused to identify himself was in fact the Respondent.

   10. The two District employees left a letter notifying the Respondent of the mistake and demanding payment of $70,920.00 in the Respondent's car after the Respondent refused to accept the letter.

   11. On or about November 17, 1987, the District and the Respondent reached a settlement by which the Respondent would repay $50,000.00 in November 1987, and the remaining $20,920.00 plus seven percent interest by June 1988.

   12. The Respondent repaid $50,000.00 in November 1987.

   13. The Respondent has failed to pay the remaining $20,920.0O plus seven percent to date. Based on the foregoing allegations, petitioner charged that respondent had violated the provisions of Section 489.129(1)(c), (h), (j) and (m) and Section 489.1195(1), Florida Statutes.

       
       

2. Respondent filed a timely request for formal hearing, and an answer to the administrative complaint. Pertinent to this case, respondents's answer raised as an affirmative defense that petitioner had previously taken administrative action against petitioner regarding the matters raised in the administrative complaint, and that respondent was therefore barred from maintaining this action.

   
   

3. On February 23, 1990, respondent propounded three requests for admission to petitioner. These requests were:

   
   

   1. Please admit that the letter dated May 25, 1989 from Ray Shope to Alexander P. Robinson, a copy of which is attached hereto as Exhibit A, is a true and correct copy.

   2. Please admit that Ray Shope had authority to execute the letter attached hereto as Exhibit A on behalf of the Florida Department of Professional Regulation.

   3. Please admit that the matters referred to in the letter of May 25, 1989, a copy of which is attached hereto as Exhibit A, are the same factual matters referred to in the Administrative Complaint filed in this cause.

      
      

      The letter attached to the request for admissions, which was prepared under the petitioner's letterhead, read as follows:

      
      

      To: Alexander P. Robinson Robinson Construction, Inc. 1125 N.W. 27th Avenue

      Ft. Lauderdale, FL 33311

      
      

      Letter of Guidance Case Number: 104493

      
      

      Dear Mr. Robinson:

      
      

      This agency has previously received and investigated a complaint against you, under the above cited case number. I attach a copy of the pertinent complaint papers to refresh your recollection as to the nature of the complaint. We have sought your response to the complaint. The file was thereafter carefully reviewed in this office. It has been found that there is probable cause to

      believe the following disciplinary violation(s) was committed (all citations are to the Florida Statutes):

      
      

      Failure to sufficiently monitor all aspects of a job, in order to recognize an inappropriate receipt, violating 489.129(1)(m)

      
      

      Although it was found that there was probable cause, it has been decided that the case be closed by sending you this letter of guidance, pointing out that the above conduct violates the state licensing law and is grounds for formal disciplinary action. Such action may include fines, suspension, or even revocation. Please use care in the future concerning observance of all the requirements of the state licensing law. We now consider the matter closed.

      sincerely, Ray Shope

      Chief Attorney, Tectonics

      
      

      ATTCH: Complaint RS/ad

      05-04-89

      
      

      On April 3, 1990, a hearing was held on respondent's motion for summary recommended order. As of that date, petitioner had not responded to respondent's requests for admission. Accordingly, such matters are conclusively established for purposes of this proceeding. 1/ Rule 1.370, Fla.R. Civ.P.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

      
      

   5. Here, respondent has moved for a summary recommended order. A review of the administrative complaint coupled with the facts established through the petitioner's failure to respond to the requests for admissions propounded to it, demonstrates that respondent's motion is meritorious.

      
      

   6. Petitioner's failure to respond to the requests for admission conclusively establishes that on May 25, 1989, petitioner issued to respondent a letter of guidance based upon the same factual matters referred to in the administrative complaint. Pertinent to this case, Section 455.225(4), Florida Statutes, provides:

If the probable cause panel finds

that probable cause exists, it shall direct the department [Department of Professional

Regulation] to send the licensee a letter of guidance or to file a formal complaint against the licensee.

Here, on the same facts, the Department, at the election of the probable cause panel, previously issued a letter of guidance. That such action was punitive in nature cannot be gainsaid. See: Rules 21E-12.010(5)(a), 21E-17.001, and 21E- 17.003, Florida Administrative Code. Accordingly, such election bars the probable cause panel or the Department from seeking further punitive action against respondent based on the same factual matters.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that a final order be entered dismissing the administrative complaint filed in this matter.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1990.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990.

ENDNOTE

1/ On April 12, 1990, respondent filed a "Notice that request for admissions are deemed admitted" based on the petitioner's failure to respond to such requests, as well as a motion to compel the petitioner to respond to a request for production that had been served February 23, 1990, and to which the petitioner had not responded. On April 13, 1990, a hearing was held on respondent's motion to compel. At hearing, petitioner's counsel contended that petitioner was not required to respond to the requests for admissions or request' for production since they had been served upon Ray Shope, the attorney for petitioner who had signed the administrative complaint and who had forwarded the administrative complaint to the Division of Administrative Hearings, as opposed to the attorney who Mr. Shope stated in his cover letter to the Division would be petitioner's representative. Notably, however, Mr. Shope and any other counsel or qualified representative of petitioner appearing in this case are located in the same offices, and petitioner's counsel conceded that such discovery requests had been routed to him and that he was personally in receipt of them not later than March 19, 1990. Notwithstanding his personal receipt of such requests before the time to respond had expired, petitioner's counsel elected to take no action, i.e.: he did not respond, did not object, and did not request any extension of time to respond. Under the circumstances,

petitioner's contentions are unpersuasive and the requests for admission are deemed admitted. Rule 1.370, Fla.R.Civ.P. Petitioner's counsel also suggested, at hearing, that its failure to respond was of little import since the requests would have been admitted in any event. However, on April 13, 1990, Petitioner filed a "notice of filing" by which it gave notice that it had served its response to respondent's request for admissions. What that response was does not appear of record since the response itself was not filed, and to the extent that it may vary the admissions that resulted by operation of petitioner's failure to timely respond, it is a nullity since no relief was requested or granted from the operation of the rule. Rule 1.370, Fla.R.Civ.P. By separate order issued this date, respondent's motion to compel discovery has been denied as moot in light of the entry of this recommended order.

COPIES FURNISHED:

G. W. Harrell, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Robert G. Harris Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Ira C. Hatch, Jr., Esquire

100 N.E. 3rd Avenue Suite 900

Fort Lauderdale, Florida 33301-1146

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 90-000700

Orders for Case No: 90-000700