STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRISTOPHER P. KISELIUS, | ) | ||
) | |||
Petitioner, | ) | ||
) | |||
vs. | ) Case | Nos. | 99-1665 |
) | 99-1666 | ||
DEPARTMENT OF BUSINESS AND | ) | 99-1667 | |
PROFESSIONAL REGULATION, | ) | 99-1668 | |
CONSTRUCTION INDUSTRY LICENSING | ) | 00-0024 | |
BOARD, | ) | ||
) | |||
Respondent. | ) | ||
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in these cases on June 14 and 15, 2000, in Fort Lauderdale, Florida, before Patricia Hart Malono, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Alan A. Glenn, Esquire
13727 Southwest 152nd Street Suite 366
Miami, Florida 33177
For Respondent: Edwin A. Bayo, Esquire
Department of Legal Affairs The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
For Claimants Andrew T. Trailor, Esquire Santibanez, BURGER & TRAILOR
Alboniga, 8603 South Dixie Highway, Suite 303 Mueller, and Miami, Florida 33143
Sidorski: 1/
For Claimants Paula Tieger, pro se Tieger: 2/ 1432 Southwest 158th Avenue
Pembroke Pines, Florida 33027 STATEMENT OF THE ISSUES
Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled.
Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
PRELIMINARY STATEMENT
In an Order dated January 22, 1999, the Construction Industry Licensing Board ("Board") directed payment of
$17,675.50 from the Construction Industries Recovery Fund ("Fund") to Eugene Santibanez and Alexander Pappas. The Board found that Mr. Santibanez and Mr. Pappas had satisfied the requirements of Sections 489.140 through 489.143, Florida Statutes, for payment from the Fund because they obtained a circuit court judgment against Pool Masters, Inc. ("Pool Masters"), based on violations of Section 489.129(1)(h) and (k), Florida Statutes. The Board noted that Christopher P. Kiselius had qualified Pool Masters with his pool/spa contractor's license and ordered the automatic suspension of Mr. Kiselius's contracting license upon payment of the claim to Mr. Santibanez and Mr. Pappas, with reinstatement only after Mr. Kiselius
"repaid in full, plus interest, the amount paid from the Fund." Mr. Kiselius timely filed a request for a hearing involving disputed issues of fact, and the Board forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case
No. 99-1665.
In an Order dated January 22, 1999, the Board directed payment of $13,299.51 from the Construction Industries Recovery Fund ("Fund") to Klaus and Lucrecia Mueller. The Board found that Mr. and Mrs. Mueller had satisfied the requirements of Sections 489.140 through 489.143, Florida Statutes, for payment from the Fund because they obtained a circuit court judgment against Pool Masters, Inc. ("Pool Masters"), based on violations of Section 489.129(1)(h), (k), and (l), Florida Statutes. The Board noted that Christopher P. Kiselius had qualified Pool Masters with his pool/spa contractor's license and ordered the automatic suspension of Mr. Kiselius's contracting license upon payment of the claim to Mr. and Mrs. Mueller, with reinstatement only after Mr. Kiselius "repaid in full, plus interest, the amount paid from the Fund." Mr. Kiselius timely filed a request for a hearing involving disputed issues of fact, and the Board forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 99-1666.
In an Order dated January 22, 1999, the Board directed payment of $10,541.77 from the Construction Industries Recovery Fund ("Fund") to Mario and Martha Alboniga. The Board found that Mr. and Mrs. Alboniga had satisfied the requirements of Sections 489.140 through 489.143, Florida Statutes, for payment from the Fund because they obtained a circuit court judgment against Pool Masters, Inc. ("Pool Masters"), based on violations of Section 489.129(1)(h) and (k), Florida Statutes. The Board noted that Christopher P. Kiselius had qualified Pool Masters with his pool/spa contractor's license and ordered the automatic suspension of Mr. Kiselius's contracting license upon payment of the claim to Mr. and Mrs. Alboniga, with reinstatement only after Mr. Kiselius "repaid in full, plus interest, the amount paid from the Fund." Mr. Kiselius timely filed a request for a hearing involving disputed issues of fact, and the Board forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 99-1667.
In an Order dated January 22, 1999, the Board directed payment of $15,185.68 from the Fund to Salvator Militello and Sharon Sidorski. The Board found that Mr. Militello and
Ms. Sidorski had satisfied the requirements of Sections 489.140 through 489.143, Florida Statutes, for payment from the Fund because they obtained a circuit court judgment against Pool
Masters, Inc. ("Pool Masters"), based on violations of Section 489.129(1)(h) and (k), Florida Statutes. The Board noted that Christopher P. Kiselius had qualified Pool Masters
with his pool/spa contractor's license and ordered the automatic suspension of Mr. Kiselius's contracting license upon payment of the claim to Mr. Militello and Ms. Sidorski, with reinstatement only after Mr. Kiselius "repaid in full, plus interest, the amount paid from the Fund." Mr. Kiselius timely filed a request for a hearing involving disputed issues of fact, and the Board forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 99-1668.
In an order entered May 17, 1999, DOAH Case Nos. 99-1665, 99-1666, 99-1667, and 99-1668 were consolidated for purposes of the administrative proceeding, and the consolidated cases were scheduled for final hearing.
In an Order dated December 10, 1999, the Board directed payment of $800.00 from the Fund to Jack and Paula Tieger. The Board found that Mr. and Mrs. Tieger had satisfied the requirements of Sections 489.140 through 489.143, Florida Statutes, for payment from the Fund because they obtained a circuit court judgment against Pool Masters, Inc. ("Pool Masters"), in the amount of $7,390.50, $800.00 of which was based on violations of Section 489.129(1)(h), Florida Statutes
(1997). The Board noted that Christopher P. Kiselius had qualified Pool Masters with his pool/spa contractor's license and ordered the automatic suspension of Mr. Kiselius's contracting license upon payment of the claim to Mr. and
Mrs. Tieger, with reinstatement only after Mr. Kiselius "repaid in full, plus interest, the amount paid from the Fund."
Mr. Kiselius timely filed a request for a hearing involving disputed issues of fact, and the Board forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case
No. 00-0024.
By order entered January 19, 2000, DOAH Case No. 00-0024 was consolidated with DOAH Case Nos. 99-1665, 99-1666, 99-1667, and 99-1668 for purposes of the administrative proceeding, and the consolidated cases were scheduled for final hearing on
May 11 and 12, 2000.
In an order entered April 25, 2000, Mr. Kiselius was permitted to amend his requests for an administrative hearing in these consolidated proceedings to include the allegation that the Board suspended Mr. Kiselius's license pursuant to an unadopted rule. Specifically, Mr. Kiselius was allowed to amend his requests to allege that suspension of his license was improperly based on the Board's policy of holding the qualifying agent for a business organization liable for the supervision and
financial matters of all construction projects for which the qualifying agent pulled the permit, regardless of whether the qualifying agent's affiliation with the business organization has ceased.
In his Motion to Determine the Burdens of Proof and Persuasion, which was filed April 19, 2000, Mr. Kiselius requested that the undersigned identify the parties who had the burden of proving the issues presented in his petition for administrative hearings, and he included in his motion a lengthy list of primarily disputed issues of fact. On May 8, 2000, a telephonic hearing was held on this motion, among others, with counsel for the parties and for four of the five claimants attending by telephone. An order was entered May 19, 2000, in which the undersigned ruled that, in these proceedings, each claimant would be required to prove entitlement to payment from the Fund, and the Board would be required to prove that it identified in its proposed final orders the proper person whose license is subject to automatic suspension pending repayment of the Fund.
When the Board transmitted these cases to the Division of Administrative Hearings, it identified Mr. Kiselius as the Petitioner and the Department of Business and Professional Regulation, Construction Industry Licensing Board, as the Respondent. It did not identify as parties the claimants to
whom the Board awarded payment from the Fund in the proposed final orders at issue herein. On May 1, 2000, the Board filed a Motion to Add Indispensable Parties and Motion for Continuance. A telephonic hearing was held on May 8, 2000, on this motion, among others, and counsel for the Board notified counsel for the claimants of the hearing. Andrew Trailor, counsel for all of the claimants except Mr. and Mrs. Tieger, appeared at the hearing. An order was entered on May 19, 2000, denying the Board's Motion to Add Indispensable Parties because no authority is found in Chapter 120, Florida Statutes, or in
Rule Chapter 28-106, Parts I and II, Florida Administrative Code, for adding "indispensable parties" to actions pending before the Division of Administrative Hearings. It was, however, noted in the order that notice would be provided to the claimants once it was clarified that Mr. Kiselius intended to challenge the right of the claimants to payment from the Fund.
Counsel for the claimants were, however, provided a copy of the May 10, 2000, Order Granting Continuance and Re-Scheduling Hearing for June 14 through 16, 2000.
Mr. Kiselius clarified during a Pre-Hearing Conference held on May 30, 2000, that he challenged both the eligibility of the claimants to payment from the Fund and the automatic suspension of his license. Accordingly, a Notice to Interested Parties was sent out on June 2, 2000, advising all of the claimants
identified in the proposed final orders at issue herein that the rights of Mr. Kiselius would necessarily involve a determination of their substantial interests in receiving payment from the Fund. The claimants were invited to request in writing, before the final hearing, that they be joined as parties to the proceedings. None of the claimants did so, although all of the claimants appeared at the final hearing and presented evidence in support of their eligibility for payment from the Fund.
At the hearing, the following claimants testified in their own behalf and were called as witnesses by Mr. Kiselius: Eugene Santibanez, Mario Alboniga, Klaus Mueller, Sharon Sidorski, and Paula Tieger. Claimants' Exhibits 1 through 13 were offered and received into evidence. The Board called Mr. Kiselius as its only witness, and CILB Exhibits 1 through 3 were offered and received into evidence. Mr. Kiselius testified in his own behalf and, in addition to the testimony of the claimants, presented the testimony of Andreas Serraes, Peter Candler, David Nolan, and Lee Young. Petitioner's Exhibits 1 through 6 and 8 through 16 were offered and received into evidence. At the request of Mr. Kiselius, official recognition was taken of the Final Staff Analysis and Economic Impact Statement of the Florida House of Representative's Committee on Regulatory Reform of CS/HB 1646 (passed as CS/SB 155), dated June 9, 1988; the Senate Staff Analysis and Economic Impact Statement of the
Florida Senate Committee on Economic, Community, and Consumer Affairs relating to SB 155, dated January 25, 1988; the Revised Bill Analysis and Economic Impact Statement of the Florida House of Representatives Committee on Business Regulation and Consumer Affairs relating to HB 1197, dated April 3, 1997; and the Senate Staff Analysis and Economic Impact Statement relating to CS/CS/SB 1532, dated April 25, 1997.
A two-volume transcript of the proceedings was filed with the Division of Administrative Hearings on July 14, 2000. On motion of the Petitioner, an extension of time for filing Proposed Recommended Orders was granted. The parties timely filed their proposed findings of fact and conclusions of law on August 14, 2000, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering
orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes.
Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active.
Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer.
From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996.
Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas
Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of
$2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor.
Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later,
Mr. Santibanez heard that Pool Masters had declared bankruptcy.
At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of
$19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and
Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released.
On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998.
On or about March 11, 1998, Mr. Santibanez and
Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor.
In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters.
Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool.
Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had
failed to complete the work;
failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[
3/ ]
falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[
4/ ]
committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[
5/ ]
f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S.
489.129(1)(h)(2) [Section 489.129(1)(g)2.].[
6/ ]
Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim.
The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas
$17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate.
In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters.
The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for
administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters.
Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50.
DOAH Case No. 99-1666: Klaus and Lucrecia Mueller
Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor.
Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late
November 1997.
At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately
$12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used
to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released.
On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998.
On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor.
In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters.
Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and
Mrs. Mueller alleged in the complaint that Pool Masters had
failed to complete the work;
failed to perform in a reasonable and timely manner and abandoned the project for
more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[
7/ ]
falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[
8/ ]
committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[
9/ ]
f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S.
489.129(1)(h)(2) [Section 489.129(1)(g)2.].[
10/ ]
Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51.
The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate.
In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries
Recovery Fund, based on their Default Final Judgment against Pool Masters.
The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters.
Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of
$13,299.51.
DOAH Case No. 99-1667: Mario and Martha Alboniga
Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor.
Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997.
Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy.
At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of
$15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against
Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released.
On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998.
On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor.
In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters.
Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial
Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and
Mrs. Alboniga alleged in the complaint that Pool Masters had
failed to complete the work;
failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[
11/ ]
falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[
12/ ]
committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[
13/ ]
f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S.
489.129(1)(h)(2) [Section 489.129(1)(g)2.].[
14/ ]
Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77.
The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and
Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate.
In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters.
The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters.
Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of
$10,541.77.
DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski
Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor.
Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured
the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997.
At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against
Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released.
On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998.
On or about March 11, 1998, Mr. Militello and
Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor.
In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters.
Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth
Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool.
Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had
failed to complete the work;
failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[
15/ ]
falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[
16/ ]
committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[
17/ ]
f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S.
489.129(1)(h)(2) [Section 489.129(1)(g)2.].[
18/ ]
Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid
$1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68.
The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and
Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate.
In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters.
The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters.
Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68.
DOAH Case No. 00-0024: Jack and Paula Tieger
Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00.
Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were
not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the
contract:
By failing to adequately explain the technical terms used in the Agreement to the TIEGERS;
By failing to install a vacuum line with valve as specified in the Agreement;
By failing to install anti-corrosive handrails in the swimming pool;
By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement;
By failing to properly fill the area behind the waterfall;
By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool:
By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner;
By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool;
and
By failing to install the second screen door as specified in the Agreement.
Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract.
Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door.
A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded
Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters.
In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of
$7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs.
Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters.
Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger
$800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed.
Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with
the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998).
The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1999).
Section 489.140(1), Florida Statutes (Supp. 1998), authorized disbursements from the Fund
to any natural person adjudged by a court of competent jurisdiction to have suffered monetary damages, or to whom the licensee has been ordered to pay restitution by the [Construction Industry Licensing] board, where the judgment or restitution order is based on a violation of s. 489.129(1)(d)[ 19/
] (h), (k), or (l), [in 1998, re-designated
Section 489.129(1)(g), (j) and (k)][ 20/ ] committed by any contractor, financially responsible officer, or business organization licensed under the provisions of this part at the time the violation was committed, and providing that the violation occurs after July 1, 1993.
Section 489.141, Florida Statutes (Supp. 1998), established the conditions for recovery from the Fund and provided:
Any person is eligible to seek recovery from the Construction Industries Recovery Fund after having made a claim and exhausting the limits of any available bond, cash bond, surety, guarantee, warranty, letter of credit, or policy of insurance, if:
Such person has received final judgment in a court of competent jurisdiction in this state in any action wherein the cause of action was based on a construction contract or the Construction Industry Licensing Board has issued a final order directing the licensee to pay restitution to the claimant based upon a violation of s. 489.129(1)(d),[ 21/ ] (h), (k), or (l), [in 1998, re-designated Section 489.129(1)(g), (j) and (k)] where the contract was executed and the violation occurred on or after July 1, 1993, and provided that:
a. Such person has caused to be issued a writ of execution upon such judgment, and the officer executing the writ has made a return showing that no personal or real property of the judgment debtor or licensee liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor's or licensee's property pursuant to such execution was insufficient to satisfy the judgment; or
b. If such person is unable to comply with sub-subparagraph a. for a valid reason to be determined by the board, such person has made all reasonable searches and inquiries to ascertain whether the judgment debtor or licensee is possessed of real or personal property or other assets subject to being sold or applied in satisfaction of the judgment and by his or her search has
discovered no property or assets or has discovered property and assets and has taken all necessary action and proceedings for the application thereof to the judgment but the amount thereby realized was insufficient to satisfy the judgment; or
The claimant has made a diligent attempt, as defined by board rule, to collect the restitution awarded by the board;
A claim for recovery is made within 2 years from the time of the act giving rise to the claim or within 2 years from the time the act is discovered or should have been discovered with the exercise of due diligence; however, in no event may a claim for recovery be made more than 4 years after the date of the act giving rise to the claim or more than 1 year after the conclusion of any civil or administrative action based on the act, whichever is later;
Any amounts recovered by such person from the judgment debtor or licensee, or from any other source, have been applied to the damages awarded by the court or the amount of restitution ordered by the board; and
Such person is not a person who is precluded by this act from making a claim for recovery.
A person is not qualified to make a claim for recovery from the Construction Industries Recovery Fund, if:
The claimant is the spouse of the judgment debtor or licensee or a personal representative of such spouse;
The claimant is a licensee who acted as the contractor in the transaction which is the subject of the claim;
Such person's claim is based upon a construction contract in which the licensee was acting with respect to the property owned or controlled by the licensee;
Such person's claim is based upon a construction contract in which the contractor did not hold a valid and current
license at the time of the construction contract; or
Such person was associated in a business relationship with the licensee other than the contract at issue.
Such person has suffered damages as the result of making improper payments to a contractor as defined in part I of chapter 713.
Section 489.143, Florida Statutes (Supp. 1998), provides in pertinent part:
Any person who meets all of the conditions prescribed in s. 489.141(1) may apply to the [Construction Industry Licensing] board to cause payment to be made to such person from the Construction Industries Recovery Fund in an amount equal to the judgment or restitution order, exclusive of postjudgment interest, against the licensee or $25,000, whichever is less, or an amount equal to the unsatisfied portion of such person's judgment or restitution order, exclusive of postjudgment interest, or $25,000, whichever is less, but only to the extent and amount reflected in the judgment or restitution order as being actual or compensatory damages. The fund is not obligated to pay any judgment or restitution order, or any portion thereof, which is not expressly based on one of the grounds for recovery set forth in s. 489.140(1).
Upon receipt by a claimant under subsection (1) of payment from the Construction Industries Recovery Fund, the claimant shall assign his or her additional right, title, and interest in the judgment or restitution order, to the extent of such payment, to the [Construction Industry Licensing] board, and thereupon the board shall be subrogated to the right, title, and interest of the claimant; and any amount subsequently recovered on the judgment or restitution order by the board, to the
extent of the right, title, and interest of the board therein, shall be for the purpose of reimbursing the Construction Industries Recovery Fund.
* * *
(7) Upon the payment of any amount from the Construction Industries Recovery Fund in settlement of a claim in satisfaction of a judgment or restitution order against a licensee as described in s. 489.141(1), the license of such licensee shall be automatically suspended, without further administrative action, upon the date of payment from the fund. The license of such licensee shall not be reinstated until he or she has repaid in full, plus interest, the amount paid from the fund. A discharge of bankruptcy does not relieve a person from the penalties and disabilities provided in this section.
The issues presented in this proceeding are, first, whether the claimants have established their eligibility for payment from the Fund and, second, whether the Board has established that Mr. Kiselius is the "licensee" for purposes of the automatic suspension provision in Section 489.143(7), Florida Statutes (Supp. 1998).
Based on the findings of fact herein, Mr. Santibanez and Mr. Pappas, Mr. and Mrs. Alboniga, Mr. and Mrs. Mueller, and Mr. Militello and Ms. Sidorski have established their eligibility for payment from the Fund in an amount equal to the amounts awarded in the final judgments entered in their favor
against Pool Masters, as provided in Sections 489.140(1), 489.141(1), and 489.143(1), Florida Statutes (Supp. 1998).
These claimants are within the class of persons to whom monies from the Fund can be disbursed pursuant to Section 489.140(1), Florida Statutes (Supp. 1998). The
claimants are natural persons; they were adjudged by the Circuit Court of the Seventeenth Judicial Circuit in Broward County, Florida, to have suffered monetary damages; they had final judgments entered in their favor against Pool Masters establishing that Pool Masters violated Section 489.129(1)(g), (j), and/or (k), Florida Statutes (Supp. 1998); 22/ and Pool Masters was a business organization engaging in contracting pursuant to a license, in the form of a certificate of authority, issued by the Board pursuant to Section 489.119(2), Florida Statutes. 23/
These claimants have also established their eligibility to seek payment from the Fund pursuant to
Section 489.141(1), Florida Statutes (Supp. 1998), because each of these claimants obtained a final judgment against Pool Masters based on complaints for breach of a construction contract executed after July 1, 1993. The judgments were based on violations of Section 489.129(1)(g), (j), and/or (k), Florida Statutes (Supp. 1998). These claimants have established that they have been unable to collect on the final judgments due to
the Chapter 7 bankruptcy of Pool Masters and the lack of any assets in Pool Masters's bankruptcy estate to satisfy the judgments. Finally, these claimants submitted their claims to the Board within the time frames set forth in
Section 489.141(1)(b), Florida Statutes (Supp. 1998).
Based on the findings of fact herein, Mr. and Mrs. Tieger have not established that they are eligible for payment from the Fund for the amounts awarded in the final judgment entered in their favor against Pool Masters.
Mr. Kiselius is not the licensee whose contracting license is subject to automatic suspension by operation of Section 489.143(7), Florida Statutes (Supp. 1998), upon payment of the claims from the Fund in satisfaction of the judgments entered against Pool Masters in favor of the claimants herein. Section 489.143(7), Florida Statutes (Supp. 1998), authorizes the automatic suspension of the license of the licensee against whom a final judgment or final restitution order has been entered:
Upon the payment . . . from the Construction Industries Recovery Fund in settlement of a claim in satisfaction of a judgment or restitution order against a licensee as described in s. 489.141(1), the license of such licensee shall be automatically suspended, without further administrative action, upon the date of payment from the fund." . . . .
(Emphasis added.) The phrase "against a licensee" cannot be deleted from Section 489.143(7), Florida Statutes (Supp. 1998), as the Board suggests in footnote 9 of its Proposed Recommended Order, and the language of Section 489.140(1), Florida Statutes (Supp. 1998), specifically refers to a "business organization licensed under the provisions of this part." 24/
A proceeding conducted pursuant to Sections 489.140 through 489.143, Florida Statutes, does not provide a forum for adjudicating the liability for damages of any person who is not the "licensee" against whom a final judgment or final order of restitution is entered. The civil court system provides the only forum in which a final judgment can be entered against a person licensed under Chapter 489, Florida Statutes, for violations of Section 489.129(1)(g), (j), and/or (k), Florida Statutes; likewise, the administrative forum, in a proceeding conducted in accordance with the provisions of Chapters 120 and 455, Florida Statutes, and specifically of Section 455.225, Florida Statutes, is the only forum in which a final order of restitution can be entered against a person licensed under Chapter 489, Florida Statutes, for violations of
Section 489.129(1)(g), (j), and/or (k), Florida Statutes.
The provisions governing disbursements from the Fund and for proving eligibility for payment from the Fund, therefore, presuppose that a claimant has obtained a final
determination of the liability of the "licensee" against whom a judgment or final order of restitution has been entered and of the damages to which the claimant is entitled. Such a final determination of liability and damages itself presupposes a civil or an administrative proceeding in which the licensee has been afforded the opportunity to be heard and to defend against the allegations contained in the civil or administrative complaint.
A proceeding before the Board pursuant to
Sections 489.140 through 143, Florida Statutes, is not one in which the Board can properly determine that a person such as Mr. Kiselius, who is not named in the final judgment or in the final order of restitution, is obligated to reimburse the Fund for payments made on the basis of such judgment or order.
Rather, the legislature has clearly and unambiguously limited the scope of the automatic suspension provision of
Section 489.143(7), Florida Statutes (Supp. 1998), to the license of the licensee against whom the final judgment or restitution order was entered. Because no final judgment or
final order of restitution was entered against Mr. Kiselius in favor of the claimants herein, his license cannot be automatically suspended pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board:
Enter final orders as follows:
In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.;
In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of
$13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.;
In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of
$10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.;
In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and
In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund.
Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668.
DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
ENDNOTES
1/ These claimants were notified of their right to be joined as parties in the referenced cases, but none asked to be joined.
Nonetheless, they were permitted to appear at the hearing and offer proof of their entitlement to payment from the Fund.
2/ See footnote 1.
3/ Because of an amendment to Section 489.129(1), Florida Statutes, in 1998, the provisions of that statute were redesignated. Section 489.129(1)(k), Florida Statutes (1997), was designed Section 489.129(1)(j), Florida Statutes (Supp.
1998).
4/ Section 489.129(1)(l), Florida Statutes (1997), was redesignated Section 489.129(1)(k), Florida Statutes (Supp. 1998).
5/ Section 489.129(1)(h), Florida Statutes (1997), was redesignated Section 489.129(1)(g), Florida Statutes (Supp. 1998).
6/ See footnote 5. 7/ See footnote 3. 8/ See footnote 4. 9/ See footnote 5. 10/ See footnote 5. 11/ See footnote 3. 12/ See footnote 4. 13/ See footnote 5. 14/ See footnote 5. 15/ See footnote 3. 16/ See footnote 4. 17/ See footnote 5. 18/ See footnote 5.
19/ Section 489.129(1)(d), Florida Statutes (1997), was repealed in 1998.
20/ Section 489.129(1), Florida Statutes (Supp. 1998), provided in pertinent part:
The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, 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 a secondary qualifying agent responsible under s.
489.1195 is found guilty of any of the following acts:
* * *
Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond, within 75 days after the date of such liens;
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; or
The contractor's job has been completed, and it is shown that the customer has had to pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result
of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.
* * *
Abandoning 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.
Signing a statement with respect to a project or contract falsely indicating that the work is bonded; falsely indicating that payment has been made for all subcontracted work, labor, and materials which results in a financial loss to the owner, purchaser, or contractor; or falsely indicating that workers' compensation and public liability insurance are provided
21/ See footnote 19.
22/ The complaints underlying the final judgments included allegations specifically identifying acts and omissions of Pool Masters that constituted violations of Section 489.129(1)(g), (j), and/or (k), Florida Statutes (Supp. 1998). Because the judgments entered against Pool Masters were default final judgments, Pool Masters is deemed to have admitted the facts pleaded in the complaints. See Ellish v. Richard, 622 So. 2d 1154, 1155 (Fla. 4th DCA 1993)("[A] party against whom a default judgment is entered admits all well-pleaded facts as true."); Martino v. Florida Insurance Guaranty Association, 383 So. 2d 942, 944 (Fla. 3d DCA 1980)("[A] judgment by default is as conclusive on rights of parties as a judgment on the merits."). Furthermore, the judgments are conclusive with respect to the rights of the parties to the circuit court action, unless the judgments are set aside by the circuit court pursuant to
Rule 1.540, Florida Rules of Civil Procedure. See Seiffert v. Seiffert, 702 So. 2d 273, 275 (Fla. 1st DCA 1997)("Rule 1.540(b), Florida Rules of Civil Procedure, is the only method
by which a party can set aside a previous final judgment."). No showing has been made that the judgments at issue herein have been set aside. Consequently, the effect of the claimants' final judgments against Pool Masters is to establish that Pool Masters committed the violations of Section 489.129(1), Florida Statutes, pleaded in the complaints.
23/ Section 489.119(2), Florida Statutes, provides in pertinent part:
If the applicant proposes to engage in contracting as a business organization, . .
. the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any.
24/ It should also be noted that a "business organization" is defined as a "legal entity which engages or offers to engage in the business of contracting or acts as a contractor as defined in this section." Section 489.105(13), Florida Statutes (Supp. 1998). A business organization must apply in its own right for a certificate of authority and must renew that certificate of authority every two years. Section 489.129(1), Florida Statutes (Supp. 1998), provides that a business organization is subject to discipline for acts which can be attributed to the business organization, and the business organization's certificate of authority to engage in contracting can be revoked or suspended, or the renewal of such certificate can be denied.
25/ Because of the conclusions reached herein, no findings of fact or conclusions of law have been included in this Recommended Order with respect to the issues raised by
Mr. Kiselius that his signature had been forged on certain documents submitted to the Board by Pool Masters in the process of applying for its certificate of authority and that the Board improperly suspended his license based on an invalid unadopted rule.
COPIES FURNISHED:
Alan A. Glenn, Esquire
13727 Southwest 152nd Street Suite 366
Miami, Florida 33177
Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
Andrew T. Trailor, Esquire BURGER & TRAILOR
8603 South Dixie Highway, Suite 303
Miami, Florida 33143
Paula Tieger 158th Avenue
Pembroke Pines, Florida 33027
Barbara D. Auger, General Counsel Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and
Professional Regulation
7960 Arlington Expressway, Suite 300
Jacksonville, Florida 32211-7467
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.
| Issue Date | Proceedings |
|---|---|
| Jul. 15, 2004 | Final Order filed. |
| Mar. 01, 2002 | Third DCA Order: Order that respondent/appellee`s motion to dismiss appeal as moot is granted) filed. |
| May 31, 2001 | Appellee is order to respond within seven days from the date of this order to the appellant`s motion to enforce the duties of the agency clerk (filed via facsimile). |
| Oct. 05, 2000 | Petitioner`s Exceptions to Recommended Order (filed via facsimile). |
| Sep. 11, 2000 | Department of Business and Professional Regulation, Constrution Industries Recovery Fund`s Exceptions to Recommeded Order (filed via facsimile). |
| Aug. 31, 2000 | Recommended Order issued (hearing held June 14 and 15, 2000) CASE CLOSED. |
| Aug. 23, 2000 | Ltr. to Judge P. Malono from A. Glenn In re: Petitioner`s Proposed Recommended Order (filed via facsimile). |
| Aug. 14, 2000 | Petitioner`s Proposed Recommended Order filed. |
| Aug. 14, 2000 | Department of Business and Professional Regulation, Construction Industry Licensing Board`s Proposed Recommended Order filed. |
| Aug. 03, 2000 | Order Extending Time for Filing Proposed Recommended Orders issued. (proposed recommended orders shall be filed by 8/14/2000) |
| Aug. 02, 2000 | Petitioner`s Motion to Enlarge Time. (filed via facsimile) |
| Jul. 17, 2000 | (A. Trailor) Notice of Change of Address filed. |
| Jul. 14, 2000 | Transcript (Volume 1) (Official Court Reporting, Inc.) filed. |
| Jul. 13, 2000 | Transcript (Volume 1) (Official Court Reporting, Inc. filed. |
| Jun. 14, 2000 | CASE STATUS: Hearing Held; see case file for applicable time frames. |
| Jun. 13, 2000 | Petitioner`s Response Motion in Opposition to Protective Order/Motion in Limine (filed via facsimile). |
| Jun. 12, 2000 | Order Granting in Part Renewed Motion to Quash Subpoenas and for Protective Order sent out. |
| Jun. 12, 2000 | Order Denying Motion for Partial Final Summary Order sent out. |
| Jun. 09, 2000 | Motion for Protective Order/Motion in Limine (David J. Nolan) (filed via facsimile). |
| Jun. 09, 2000 | Notice of Appearance (T. R. Gay, filed via facsimile) filed. |
| Jun. 08, 2000 | Ltr. to Judge Malono from A. Glenn RE: Motion Hearing (filed via facsimile). |
| Jun. 08, 2000 | Ltr. to Judge Malono RE: Cases cited in the Petitioner`s Memorandum of Law in Opposition to the Respondent`s Motion for Partial Summary Order and to Quash Subpoenas for Witnesses at Final Hearing (filed via facsimile). |
| Jun. 08, 2000 | Ltr. to Judge Malono from A. Glenn RE: House and Senate Staff Analysis Committee Notes filed. |
| Jun. 07, 2000 | Petitioner`s Memorandum of Law in Opposition to the Respondent`s Motion for Partial Summary Order on the Issue of the Petitioner`s Unadopted Rule Challenge and Renewed Motion to Quash Subpoenas for Witnesses at Final Hearing (filed via facsimile). |
| Jun. 05, 2000 | Motion for Partial Summary Final Order; Renewed Motion to Quash Subpoenas and for Protective Order (filed via facsimile). |
| Jun. 02, 2000 | Order Denying Petitioner`s Motion to Retain Original Venue sent out. |
| Jun. 02, 2000 | Order Denying Motion to Relinquish Jurisdiction and Denying the Ore Tenus Motion to Hold Case in Abeyance sent out. |
| Jun. 02, 2000 | Notice to Interested Parties sent out. |
| Jun. 02, 2000 | Order Denying Petitioner`s Motion to Enforce Settlement Agreement sent out. |
| Jun. 01, 2000 | Petitioner`s Combined Motion for Official Recognition of Legislative Staff Analysis and Committee Notes for Florida Session Laws and Supporting Memorandum of Law (filed via facsimile). |
| May 24, 2000 | Amended Notice of Prehearing Conference (May 30, 200, at 1:00 p.m.) sent out. |
| May 24, 2000 | Petitioner`s Response Motion and Supporting Memorandum of Law Opposing Respondent`s Motion to Relinquish Jurisdiction (filed via facsimile). |
| May 23, 2000 | Petitioner`s Combined Motion to Retain Original Venue of Action and Supporting Memorandum of Law (filed via facsimile). |
| May 23, 2000 | Petitioner`s Motion to Enforce Settlement Agreement; Response to Respondent`s Motion to Quash Subpoenas filed. |
| May 19, 2000 | Notice of Prehearing Conference sent out. (May 25, 2000; 10:00 a.m.) |
| May 19, 2000 | Order Denying Petitioner`s Motion to Limit Further Discovery by Respondent sent out. |
| May 19, 2000 | Order Denying Motion for Protective Order sent out. |
| May 19, 2000 | Order on Petitioner`s Motion to Determine the Burdens of Proof and Persuasion sent out. |
| May 19, 2000 | Order Denying Motion to Add Indispensable Parties sent out. |
| May 19, 2000 | Order Granting Motion to Allow Testimony by Telephone sent out. |
| May 19, 2000 | Ltr. to Judge Malono from A. Glenn RE: Fifteen (15) subpoena duces tecum (filed via facsimile). |
| May 19, 2000 | (Respondent) Motion to Relinquish Jurisdiction (filed via facsimile). |
| May 11, 2000 | Petitioner`s Motion to Limit Further Discovery by Respondent (filed via facsimile). |
| May 10, 2000 | Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for June 14 through 16, 2000; 10:00 a.m.; Fort Lauderdale, FL) |
| May 08, 2000 | Memorandum (Notice of Appearance, Carlos M. Machado) filed. |
| May 08, 2000 | Memorandum to Judge Malono from C. Albritton Re: Address for Jack and Paula Tieger (filed via facsimile). |
| May 08, 2000 | Subpoena Duces Tecum (A. Glenn); Return of Service filed. |
| May 08, 2000 | (A. Glenn) Last two pages of Petitioner`s Motion to Compel Settlement Agreement (filed via facsimile). |
| May 08, 2000 | Petitioner`s Combined Response to Respondent`s Motion to Quash Subpoenas and Supporting Memorandum of Law (filed via facsimile). |
| May 08, 2000 | Petitioner`s Motion in Opposition to Respondent`s Motion to Add Parties and for Continuance; Petitioner`s Combined Motion to Enforce Settlement Agreement and Supporting Memorandum of Law (filed via facsimile). |
| May 05, 2000 | (Respondent) Response to Petitioner`s Second and Fourth Requests for Production (filed via facsimile). |
| May 05, 2000 | (Respondent) Motion to Quash Subpoenas and for Protective Order (filed via facsimile). |
| May 05, 2000 | Respondent`s Response to Petitioner`s Motion to Determine the Burdens of Proof and Persuasion (filed via facsimile). |
| May 05, 2000 | (Respondent) Notice of Serving Answers to Petitioner`s Second, Third, and Fourth Sets of Integrated Interrogatories and Requests for Admissions (filed via facsimile). |
| May 01, 2000 | Respondent`s Motion to Add Indispensable Parties and Motion for Continuance (filed via facsimile). |
| May 01, 2000 | Petitioner`s Unilateral Pre-Hearing Stipulation w/cover letter q(filed via facsimile). |
| May 01, 2000 | Notice of Appearance (Edwin A. Bayo) filed. |
| Apr. 28, 2000 | Petitioner`s Motion to Allow Telephonic Appearance of Specified Witnesses at Final Hearing (filed via facsimile). |
| Apr. 25, 2000 | Order Granting Motion to Amend Petition sent out. |
| Apr. 24, 2000 | (A. Glenn) Case Law cited in the Memorandum of Law in Support of Petitioner`s Motion to Amend Petition filed. |
| Apr. 19, 2000 | Petitioner`s Motion to Determine the Burdens of Proof and Persuasion (filed via facsimile). |
| Apr. 17, 2000 | (A. Glenn) Memorandum of Law in Support of the Petitioner`s Motion to Amend His Petition for a Formal Hearing Before the DOAH (filed via facsimile). |
| Apr. 12, 2000 | Petitioners First Motion to Amend His Petition for a Formal Hearing to Appeal Recovery Fund Orders (filed via facsimile). |
| Apr. 12, 2000 | Order Compelling Responses to Discovery sent out. (respondent shall provide answers to discovery by April 18, 2000) |
| Apr. 11, 2000 | Order Denying Petitioner`s Motion for Judicial Notice of Attorney General Opinions sent out. |
| Apr. 11, 2000 | Order Denying Petitioner`s Motion to Compel Production of Documents Requested Pursuant to the Florida Sunshine Law sent out. |
| Apr. 11, 2000 | Order Compelling Responses to Discovery sent out. (respondent shall provide discovery request by April 18, 2000) |
| Apr. 06, 2000 | (A. Glenn) Case Law and supporting documentation cited in the memorandum filed on April 3, 2000 filed. |
| Apr. 03, 2000 | Petitioner`s Motion to Compel Production of Documents Requested Pursuant to the Florida Sunshine Law (filed via facsimile). |
| Apr. 03, 2000 | Petitioner`s Motion for Judicial Notice of Attorney General Opinions (filed via facsimile). |
| Apr. 03, 2000 | Petitioner`s Memorandum of Law in Support of A Motion to Compel Production of Documents Requested Pursuant to the Florida Sunshine Law 
(filed via facsimile). |
| Apr. 03, 2000 | Petitioner`s Memorandum of Law in Support of A Motion to Compel Production of Documents Requested Pursuant to the Florida Sunshine Law (filed via facsimile). |
| Mar. 30, 2000 | Petitioner`s Motion to Compel Discovery of Second Set of Combined and Integrated Interrogatories and Request for Admission (filed via facsimile). |
| Mar. 30, 2000 | Petitioner`s Motion to Compel Discovery of First Request for Production (filed via facsimile). |
| Mar. 27, 2000 | (A. Glenn) Notice of Service of Fourth Request for Production; Notice of Service of Fourth Set of Combined and Integrated Interrogatories and Requests for Admission (filed via facsimile). |
| Mar. 17, 2000 | Order Compelling Responses to Discovery sent out. (respondent shall provide copies of the documents requested in the Petitioner`s second request for production by March 29, 2000, petitioner`s request for attorneys` fee and cost is denied) |
| Mar. 14, 2000 | Letter to Judge Malono from A. Glenn Re: Requesting subpoenas (filed via facsimile). |
| Mar. 08, 2000 | Petitioner`s Motion to Compel Discovery (filed via facsimile). |
| Mar. 03, 2000 | (T. Henderson) Notice of Serving Answers to First Set of Integrated Interrogatories and Requests for Admission filed. |
| Mar. 03, 2000 | (Theodore Henderson) Notice of Appearance filed. |
| Feb. 18, 2000 | Order sent out. (petitioner`s request for attorneys` fees and costs is denied) |
| Feb. 07, 2000 | Petitioner`s Second Request for Production (filed via facsimile). |
| Feb. 04, 2000 | Petitioner`s Motion to Compel Discovery (filed via facsimile). |
| Feb. 04, 2000 | (Petitioner) Notice of Service of Second Set of Combined and Integrated Interrogatories and Requests for Admission (filed via facsimile). |
| Jan. 27, 2000 | Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for May 11 and 12, 2000; 9:00 a.m.; Miami, FL) |
| Jan. 19, 2000 | Order of Consolidation sent out. (case no. 00-0024 was added to consolidated batch) |
| Jan. 18, 2000 | (Petitioner) Notice of Unavailability (filed via facsimile). |
| Jan. 18, 2000 | (Petitioner) Motion for Continuance (filed via facsimile). |
| Dec. 30, 1999 | Amended Notice of Hearing sent out. (hearing set for April 6 and 7, 2000; 9:00 a.m.; Miami, FL) |
| Dec. 29, 1999 | Petitioner`s Motion for Consolidation (cases to be consolidated 99-1665, 99-1666, 99-1667, 99-1668) (filed via facsimile). |
| Dec. 20, 1999 | Notice of Change of Address (for Alan A. Glenn) filed. |
| Dec. 15, 1999 | Letter to Judge Malono from A. Glenn Re: Status Report and Request for Trial/Hearing Date (filed via facsimile). |
| Nov. 30, 1999 | Order to Show Cause sent out. (parties shall show cause within 20 days of the date of this order) |
| Sep. 30, 1999 | Order Continuing Case in Abeyance sent out. (Parties to advise status by November 19, 1999.) |
| Sep. 23, 1999 | Joint Motion for Second Continuance filed. |
| Aug. 25, 1999 | Order Granting Continuance sent out. (Parties to advise status by September 24, 1999.) |
| Aug. 23, 1999 | (A. Glenn) Notice of Appearance (filed via facsimile). |
| Aug. 23, 1999 | (A. Glenn) Stipulated Motion for Continuance; Agreed Order on Motion for Continuance (For Judge Signature) (filed via facsimile). |
| Jul. 06, 1999 | (A. Trailor) (4) Responses to Petitioner`s Interrogatories; (4) Responses to Petitioner`s Request for Admissions filed. |
| Jun. 23, 1999 | Subpoena Duces Tecum (C. Kiselius); Return of Service filed. |
| Jun. 21, 1999 | Petitioner`s First Request for Production (filed via facsimile). |
| Jun. 10, 1999 | (Petitioner) Notice of Service of First Set of Integrated Interrogatories and Requests for Admission (filed via facsimile). 6/10/99) |
| Jun. 10, 1999 | (Petitioner) Notice of Service of First Set of Integrated Interrogatories and Requests for Admission (filed via facsimile). |
| Jun. 03, 1999 | Certificate of Indigency sent out. |
| Jun. 03, 1999 | (Petitioner) Notice of Service of First Set of Integrated Interrogatories and Requests for Admission (filed via facsimile). |
| Jun. 02, 1999 | (Petitioner) Affidavit w/cover letter (filed via facsimile). |
| May 17, 1999 | Notice of Hearing sent out. (hearing set for September 23 and 24, 1999; 9:00am; Miami) |
| May 17, 1999 | Order Requiring Prehearing Stipulation sent out. |
| May 17, 1999 | Order of Consolidation sent out. (Consolidated cases are: 99-001665, 99-001666, 99-001667, 99-001668) |
| Apr. 14, 1999 | Initial Order issued. |
| Apr. 07, 1999 | Agency Referral Letter; Petition for Hearing; Order filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 06, 2001 | Agency Final Order | |
| Aug. 31, 2000 | Recommended Order | Claimants eligible for payment from Recovery Fund obtained final judgment only against licensed business organization, and Board could not, therefore, order automatic suspension of license of business organization`s qualifying agent. |
