STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 00-0599

) 00-0600

RICHARD M. GOLFMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on May 9, 2000, by video teleconference, with sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: No appearance at hearing.

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), filed two Administrative Complaints against Respondent, a certified general contractor.

The first Administrative Complaint (DOAH Case No. 00-0599), dated August 3, 1999, alleged that:

1. On or about October 30, 1998, the Respondent entered into a written contract with Norman and Sheila Feinstein to renovate the patio and build a rock garden at the Feinsteins' residence at 5468 NW 20th Avenue, Boca Raton, Florida 33496, for

   $5,000.00.

   
   

2. The Contract did not include the Respondent's license number as required by Section 489.119(6)(b), Florida Statutes (1997).

   
   

3. The contract did not include a written statement explaining the consumer's rights under the Construction Industries Recovery Fund, as required by Section 489.1425, Florida Statutes (1997).

   
   

4. On or about October 30, 1996, the Feinsteins paid $1,500 to the Respondent as the deposit called for by the contract.

5. On or about November 10, 1998, the Respondent laid rock chips around the Feinsteins' croton plants, covering an area approximately 33 feet in length and approximately 3 1/3 feet in width, worth approximately $200.

   
   

6. Thereafter, the Respondent, without just cause or notice to the Feinsteins, failed to perform further work, and failed to return the excess funds within 30 days.

Based on such allegations, the Department charged that Respondent's conduct "violated Section 489.129(1)(k), Florida Statutes (1997) by abandoning a construction project[] in which the contractor is engaged or under contract" (Count I); "violated Section 489.129(1)(h)2, Florida Statutes (1997) by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer" (Count II); "failed to include . . . [his] license number in . . . [the] contract in violation of Section 489.119(6)(b), Florida Statutes (1997), and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997) by failing in any material respect to comply with the provisions of this part" (Count III); "failed to include in . . . [the] contract a written statement explaining consumers' rights under the Construction Industries Recovery Fund in violation of Section 489.1425, Florida Statutes (1997), and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997) by failing in any material respect to comply with the provisions

of this part" (Count IV); and, "is guilty of having violated Section 489.129(1)(n), Florida Statutes (1997) by committing incompetency or misconduct in the practice of contracting" (Count V).

The second Administrative Complaint (DOAH Case No. 00- 0600), dated August 3, 1999, alleged that:

1. On or about November 21, 1998, the Respondent by and through a corporation named the Golfman Group, Inc., submitted a written proposal to replace the existing roof of the residence at 7270 Montrico Drive, Boca Raton, Florida 33433, for

   $22,125.00.

   
   

2. The Respondent's certified general contractor license number did not appear in the proposal as required by Section 489.119(6)(b), Florida Statutes (1997).

   
   

3. The proposal did not contain a written statement explaining consumers' rights under the Construction Industries Recovery Fund as prescribed by Section 489.1425, Florida Statutes (1997).

   
   

4. To become a binding contract, the proposal required signing by or on behalf of Tanya Burres, as seller of the residence, and by or on behalf of Glenn Berger and Michelle Fiorello, as buyers of the residence.

   
   

5. On or about November 23, 1998, Tanya Burres signed the proposal and, in anticipation that the buyers would also sign, paid the Respondent $1,106.25 as half of the 10% deposit called for by the proposal.

6. Thereafter the buyers refused to sign the proposal, and the Respondent failed or refused to return Burres' $1,106.25, despite demand.

Based on such allegations, the Department charged that Respondent's conduct "violated Section 489.129(1)(g), Florida Statutes (1997), by acting under a certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration" (Count I); "violated (Section 455.225(1)(o) [sic]) Section 455.227(1)(o), Florida Statutes (1997), by 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, and is thereby guilty of having violated Section 489.129(1)(c), Florida Statutes (1997), by violating any provision of Chapter 455" (Count II); "failed to include the Respondent's license number in the business proposal in violation of Section 489.119(6)(b), Florida Statutes (1997), and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997), by failing in any material respect to comply with the provisions of this part"(Count III); "failed to include in . . . [the] contract a written statement explaining customers' rights under the Construction Industries Recovery Fund in violation of Section 489.1425, Florida Statutes (1997),

and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997), by failing in any material respect to comply with the provisions of this part" (Count IV); and, "violated Section 489.129(1)(n), Florida Statutes (1997), by committing incompetency or misconduct in the practice of contracting: (Count V).

Respondent filed an election of rights with regard to each Administrative Complaint wherein he disputed the material facts alleged and requested a formal hearing. Consequently, the Department forwarded each Complaint to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct the hearing Respondent had requested, and upon filing, the cases were consolidated.

At hearing, the Department (Petitioner) called Glenn Berger, Norman Feinstein, Tanya Burres, and Andrea Serraes as witnesses, and Petitioner's Exhibits 1-12 were received into evidence. Although duly-noticed, neither Respondent nor anyone on his behalf appeared at hearing, and no evidence was offered on his behalf.

A transcript of the hearing was filed May 24, 2000, and the parties were accorded until June 15, 2000, to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly-considered.

FINDINGS OF FACT

The parties

1. Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes.

2. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1

   The Feinstein project (DOAH Case No. 00-0599)

   
   

3. On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent

   $1,500 as the initial payment (deposit) under the terms of the contract.

4. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's

   license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund.

5. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement.

   The Burres/Berger project (DOAH Case No. 00-0600)

   
   

6. On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125.

7. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following:

   THE GOLFMAN GROUP, INC.

   P.O. Box 811926

   Boca Raton, Florida 33431

   
   

8. The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund.

9. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent.

10. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of

    $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to

    accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms.

    Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home.

11. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25.

    The costs of investigation and prosecution

    
    

12. As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.)

    Previous disciplinary action

    
    

13. At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary

    action by the Construction Industry Licensing Board (the Board). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty:

    Respondent's licensure is hereby suspended for ten (10) years.

    Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision.

    
    

    The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty:

    3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board."

    
    

    To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted.

    
    

    Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

15. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of

    Banking and Finance v. Osborne Sterne and Co., 670 So. 2d 932

    
    

    (Fla. 1996). That standard requires that "the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

16. Regardless of the disciplinary action sought to be taken, it may be based only upon the offenses specifically alleged in the Administrative Complaints. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of

    Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984). Moreover, in determining whether Respondent violated the provisions of law, as alleged in the Administrative Complaints, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v.

    Department of Professional and Occupational Regulations, 348 So.

    
    

    2d 923, 925 (Fla. 1st DCA 1977).

    
    

17. Pertinent to this case Section 489.129, Florida Statutes (1997), provides:

    1. 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:

       
       

       * * *

       
       

       (c) Violating any provision of part I of chapter 455.

       
       

       * * *

       
       

       1. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this part.

       2. Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

       
       

       * * *

       
       

       2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned. . . .

       
       

       * * *

       
       

       1. Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.

          
          

       2. 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.

       
       

       * * *

       
       

       1. Committing incompetency or misconduct in the practice of contracting.

          
          

18. With regard to the perceived violations of Subsection 489.129(1)(j), Florida Statutes (1997), are the following pertinent provisions of Chapters 455 and 489, Florida Statutes (1997):

    455.227 Grounds for discipline; penalties; enforcement.-

    
    

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    
    

    * * *

    
    

    1. 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. . . .

    
    

    489.119 Business organizations; qualifying agents.-

    (6) . . . .

    1. The registration or certification number of each contractor or certificate of authority number for each business organization shall appear in each offer of services, business proposal, bid, contract, or advertisement, regardless of medium, as defined by board rule used by that contractor or business organization in the practice of contracting.

       
       

       489.1425 Duty of contractor to notify residential property owner or recovery fund.-

       1. Any agreement or contract for repair, restoration, improvement, or construction to residential real property must contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund, except where the value of all labor and materials does not exceed $2,500. The written statement must be substantially in the following form:

    
    

    CONSTRUCTION INDUSTRIES RECOVERY FUND

    
    

    PAYMENT MAY BE AVAILABLE FROM THE CONSTRUCTION INDUSTRIES RECOVERY FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER

    CONTRACT, WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A STATE-LICENSED CONTRACTOR. FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE NUMBER AND ADDRESS:

    
    

    The statement shall be immediately followed by the board's address and telephone number as established by board rule. . . .

    
    

19. Finally, pertinent to resolving whether Respondent was guilty of "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 license is not competent to perform," as alleged in Count II of the Administrative Complaint in DOAH Case No. 00-0600 (the Burres/Berger project), are the provisions of Section 489.105(3), Florida Statutes (1997), which define the following types of contractors:

    1. "Contractor" means the person who is qualified for, and shall only be 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. . . .

       1. "General contractor" means a contractor whose services are unlimited as to the type

    of work which he or she may do, except as provided in this part.

    
    

    * * *

    
    

    (e) "Roofing contractor" means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design, when not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing, waterproofing, and coating, except when coating is not represented to protect, repair, waterproof, stop leaks, or extend the life of the roof.

    
    

    Also pertinent to such issue, Section 489.113(3), Florida Statutes (1997), imposes the following restriction on a general contractor's practice:

    (3) A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air conditioning work, unless such contractor holds a state certificate or registration in the respective trade category . . .

    
    

    * * *

    
    

    (g) No general, building, or residential contractor certified after 1973 shall act as, hold himself or herself out to be, or advertise himself or herself to be a roofing contractor unless he or she is certified or registered as a roofing contractor.

    
    

20. With regard to the Feinstein project (DOAH Case No.

    
    

    00-0599), the Administrative Complaint alleges that Respondent's conduct "violated Section 489.129(1)(k), Florida Statutes (1997)

    by abandoning a construction project[] in which the contractor is engaged or under contract" (Count I); "violated Section 489.129(1)(h)(2), Florida Statutes (1997) by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer (Count II); "failed to include . . . [his] license number in . . . [the] contract in violation of Section 489.119(6)(b), Florida Statutes (1997), and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997) by failing in any material respect to comply with the provisions of this part" (Count III); "failed to include in a contract a written explaining consumers' rights under the Construction Industries Recovery Fund in violation of Section 489.1425, Florida Statutes (1997), and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997) by failing in any material respect to comply with the provisions of this part" (Count IV); and "is guilty of having violated Section 489.129(1)(n), Florida Statutes (1997) by committing incompetency or mismanagement in the practice of contracting" (Count V). Here, given the facts, as found, it cannot be subject to serious debate that with regard to the Feinstein project, Respondent committed the violations alleged in Counts I, II, III, IV, and V of the Administrative Complaint.

21. With regard to the Burres/Berger project (DOAH Case No. 00-0600), the Administrative Complaint alleges that

    Respondent's conduct "violated Section 489.129(1)(g), Florida Statutes (1997), by acting under a certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration (Count I); violated Section 455.227(1)(o), Florida Statutes (1997), "by 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, and is thereby guilty of having violated Section 489.129(1)(c), Florida Statutes (1997), by violating any provision of Chapter 455" (Count II); "failed to include the Respondent's license number in the business proposal in violation of Section 489.119(6)(b), Florida Statutes (1997), and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997), by failing in any material respect to comply with the provisions of this part" (Count III); "failed to include in . . . [the] contract a written statement explaining customers' rights under the Construction Industries Recover Fund in violation of Section 489.1425, Florida Statutes (1997), and is thereby guilty of having violated Section 489.129(1)(j), Florida Statutes (1997), "by failing in any material respect to comply with the provisions of this part" (Count IV); and "violated Section 489.129(1)(n), Florida Statutes (1997) by committing

    incompetency or misconduct in the practice of contracting" (Count V). Here, given the facts, as found, it has been established that, with regard to the Burres/Berger project, Respondent committed the violations alleged in Counts I, II, III, IV, and V of the Administrative Complaint.

22. For the violations shown, the Department proposes the following penalties with regard to DOAH Case No. 00-0599 (the Feinstein project): an administrative fine in the total sum of

    $8,000 and revocation of licensure, that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250, and that costs of investigation and prosecution in the sum of

    $234.85 (through February 25, 2000) be assessed. For the violations shown with regard to DOAH Case No. 00-0600 (the Burres/Berger project), the Department proposes the following penalties: an administrative fine in the total sum of $5,500 and revocation of licensure, that Respondent pay restitution to Tanya Burres in the sum of $1,106.25, and that costs of investigation and prosecution in the sum of $195.65 (through February 25, 2000) be assessed.

23. The penalties proposed by the Department are within the permissible range established by Sections 455.227(2) and 489.129(1), Florida Statutes (1997), the penalty guidelines established by Rule 61G4-17.001, Florida Administrative Code, and the aggravating and mitigating circumstances established by

Rule 61G4-17.002, Florida Administrative Code. Consequently, there being no apparent reason to deviate from the Department's recommendation, its proposed penalty is accepted as appropriate. Walker v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998)(Penalty imposed was within agency's statutory authority and would not be disturbed.) See also Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla. 1978), and Lee v. Division of Florida Land Sales and

Condominiums, 474 So. 2d 282 (Fla. 5th DCA 1985).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of

$430.50 against Respondent.

DONE AND ENTERED this 22nd day of June, 2000, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 22nd day of June, 2000.

ENDNOTE

1/ Respondent also held license number CG CA 32860, as a certified general contractor; however, that "license became delinquent on September 1, 1994, due to non-payment of renewal fees and was declared Null and Void on September 1, 1996." (Petitioner's Exhibit 2.)

COPIES FURNISHED:

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 32399-0702

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

Richard M. Golfman

2900 North Military Trail, Suite 200 Boca Raton, Florida 33431

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.

Docket for Case No: 00-000599

Orders for Case No: 00-000599