STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LARRY E. SHIMKUS, Petitioner, | ) ) ) Case Nos. | 03-3540 |
) | 03-3541 | |
vs. | ) | 03-3542 |
) | 03-3543 | |
DEPARTMENT OF BUSINESS AND | ) | 03-3544 |
PROFESSIONAL REGULATION, | ) | 03-3545 |
CONSTRUCTION INDUSTRY | ) | 03-3546 |
LICENSING BOARD, | ) | 03-3547 |
Respondent. | ) ) | 03-3633 |
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in February 2-3, 2004, in West Palm Beach, Florida.
APPEARANCES
For Petitioner: Bruce G. Kaleita
Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500
West Palm Beach, Florida 33401
For Respondent: Adrienne C. Rodgers
Assistant General Counsel Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-1023 STATEMENT OF THE ISSUES
The issues in each case are whether, pursuant to Sections
489.141 and 489.143, Florida Statutes (2003), a claimant is
entitled to payment from the Construction Industries Recovery Fund, and, if so, whether, pursuant to Section 489.143(7), Florida Statutes (2003), Respondent may automatically suspend the residential contractor's license of Petitioner until Petitioner reimburses Respondent for the paid claim.
PRELIMINARY STATEMENT
The nine consolidated cases involve different claimants, but similar questions of fact and law. In each case, the claimant entered into a construction contract with Thomson Homes, Inc., for which Petitioner was the qualifying licensee after April 26, 1999. In each case, after Thomson Homes, Inc., failed to perform its duties under the contract, the claimant obtained a judgment in circuit court against Thomson Homes, Inc., but not Petitioner.
In each case, the claimant filed a claim with the Construction Industries Recovery Fund. In each case, Respondent issued an order to pay the claimant, within the applicable statutory limits, and to automatically suspend the residential contractor's license of Petitioner, until he reimbursed the Construction Industries Recovery Fund for the paid claim.
Upon issuing each order, Respondent provided the claimant and Petitioner with a point of entry to participate in any administrative proceeding leading to final agency action. In each case, Petitioner requested a formal hearing to dispute the
proposed payments to the claimants and the proposed automatic suspension of his license. In no case did a claimant request a formal hearing or request to intervene in any case initiated by Petitioner.
Less than one week prior to the final hearing, Respondent filed with the Division of Administrative Hearings seven administrative complaints against Petitioner, based on many of the transactions that are the subject of the present nine cases. Respondent also requested the consolidation of these seven new cases with the nine subject cases. By Order dated January 30, 2004, the Administrative Law Judge denied Respondent's motions to consolidate and continue the final hearing.
At the hearing, Petitioner called two witnesses and offered into evidence one exhibit: Petitioner Exhibit 1. Respondent called nine witnesses and offered into evidence 53 exhibits: Respondent Exhibits 1-10 and 12-54. All exhibits were admitted, except Respondent Exhibit 11. The Administrative Law Judge sustained objections to irrelevant information on Respondent Exhibits 32 and 47 and redacted financial information not pertaining to Thomson Homes, Inc.
After the hearing, the Administrative Law Judge discovered that Respondent failed to transmit Petitioner's Petition for Section 120.57(1) Formal Administrative Hearing in DOAH Case No. 03-3547. Instead, Respondent transmitted a letter from
Petitioner's counsel dated November 11, 2002, which predates the order contested by Petitioner by 15 days. However, Petitioner's counsel supplied the Administrative Law Judge and opposing counsel with a copy of the missing petition in his trial notebook, so the Administrative Law Judge has added the petition to the record as Administrative Law Judge Exhibit 1.
The parties did not order a transcript. They filed their proposed recommended orders on February 13, 2004.
FINDINGS OF FACT
Petitioner is licensed as a certified residential contractor, holding license number CRC 013599. Respondent first issued a residential contractor's license to Petitioner in 1978, and Petitioner has been continually licensed since that time.
Petitioner has never been disciplined by Respondent or any local governmental agency. On January 29, 2004, Respondent transmitted to the Division of Administrative Hearings seven files containing administrative complaints alleging disciplinary breaches against Petitioner for many of the transactions covered in the nine subject cases. These seven new cases have not yet been heard, and Respondent has not yet entered any restitution orders against Petitioner.
In the past, Petitioner has placed his residential contractor's license with various corporations to qualify them to perform residential construction. In February 1999,
Petitioner met with Lori Thomson, president of Thomson Homes, Inc., to discuss placing his license with her residential construction company.
Now inactive, Thomson Homes, Inc., had been in the residential construction business since at least 1994, operating out of an office in Palm Beach County, which is also the location of all but one of the residential construction jobs that are the subject of these cases. Since 1994, Thomson Homes, Inc., had used the general contractor's license of Ms. Thomson's husband, Steven Thomson, to qualify to perform residential construction. During the time that his license qualified Thomson Homes, Inc., Mr. Thomson believed that he and his wife owned the corporation equally and that she served as the president and he served as the vice-president.
In the summer of 1998, Mr. Thomson filed for divorce from Ms. Thomson. In February 1999, Ms. Thomson fired
Mr. Thomson from Thomson Homes, Inc. Shortly thereafter,
Mr. Thomson learned that Ms. Thomson had caused all of the stock to be issued to her when the corporation was formed, and that she had assumed all of the officer and director positions. In early March 1999, Mr. Thomson cancelled all of the building permits that he had obtained on behalf of Thomson Homes, Inc., and withdrew his general contractor's license from Ms. Thomson's corporation, effective March 20, 1999.
When Mr. Thomson withdrew his license from Thomson Homes, Inc., it was in the process of building or preparing to build about ten homes. At no time during Petitioner's discussions with Ms. Thomson was he aware that Thomson Homes, Inc., was actively involved in construction. Eventually,
Ms. Thomson and Petitioner agreed that Petitioner would place his residential contractor's license with Thomson Homes, Inc., and would supervise the corporation's construction activities. In return, Thomson Homes, Inc., would pay Petitioner $500 weekly and 35 percent of the profits.
After filing the necessary documentation in April 1999, Petitioner qualified Thomson Homes, Inc. effective April 22 or 26, 1999. Petitioner advised Ms. Thomson that he had other work to do for another month, so he could not start with Thomson Homes, Inc. immediately. Ms. Thomson told him that she had to get financing arranged for several signed contracts and did not have any construction taking place at the time. The record is unclear whether this delay took place after the initial agreement between Petitioner and Ms. Thomson or after Petitioner formally placed his license with Thomson Homes, Inc. However, in either event, from the date that Petitioner formally placed his license with Thomson Homes, Inc., he never had a substantive conversation with Ms. Thomson about any construction activities of Thomson Homes, Inc.
Not hearing from Ms. Thomson, Petitioner eventually called her to learn when he would start work. At first,
Ms. Thomson took Petitioner's calls and kept explaining that the financing paperwork had been delayed. She promised to call Petitioner when construction was ready to proceed. However, Ms. Thomson never contacted Petitioner, and she later stopped taking or returning Petitioner's calls.
In early August 1999, Petitioner called Thomson Homes, Inc., and learned that its telephone had been disconnected. He visited the office of Thomson Homes, Inc., but found it closed and the premises vacated. In fact, Thomson Homes, Inc., discontinued business on or about August 1, 1999. Between the date that Petitioner had qualified Thomson Homes and the point at which Thomson Homes ceased doing business, Thomson Homes, Inc., had entered into construction contracts, taken deposits and draws on construction loans, and performed residential construction--all unknown to Petitioner. Also unknown to Petitioner was the fact that Thomson Homes, Inc., had failed to perform its obligations under many, if not all, of its construction contracts during that period.
The record is unclear when Petitioner withdrew his license from Thomson Homes, Inc. Petitioner sent Respondent a letter on August 30, 1999, advising of the withdrawal of his license from Thomson Homes, Inc. Later advised that he needed
to file another form to effect the withdrawal, Petitioner did so in March 2000. The difference is not important in these cases.
At no time did Petitioner receive any money from Thomson Homes, Inc., or any of the claimants who contracted with Thomson Homes, Inc. At no time did Petitioner enter into any contracts with any of the claimants. Only after Thomson Homes, Inc., had taken the claimants' money and abandoned work or failed to commence work did Petitioner learn that Thomson Homes, Inc., had done construction business under his license.
DOAH Case No. 03-3540 involves the claim of Sandra Harvey. Ms. Harvey entered into a construction agreement with Thomson Homes, Inc., on September 9, 1998. Pursuant to the agreement, Ms. Harvey agreed to pay Thomson Homes, Inc., $25,500 for a lot and $115,260 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour.
After pouring the slab, constructing the shell, and completing the rough plumbing, air conditioning, and electrical, Thomson Homes, Inc., stopped work on Ms. Harvey's home in early 1999. Ms. Harvey learned of the problem when Mr. Thomson called her in early 1999 and said that he could not finish the home because Ms. Thomson had taken over the business. This call probably took place no later than late March 1999, when
Mr. Thomas withdrew as the qualifier for Thomson Homes, Inc.
The record does not reveal the extent of payments from
Ms. Harvey or her lender or the extent of completed work at the time that Thomson Homes, Inc., abandoned the job.
Although the complaint is not part of this record, Ms. Harvey commenced a legal action against Thomson Homes, Inc., but not Petitioner. She obtained a default final summary judgment against Thomson Homes, Inc., on March 30, 2001, for a total sum of $46,267.32, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part:
Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, services and material provided.
As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from the construction lender.
On May 3, 2001, Ms. Harvey filed a claim with the Construction Industries Recovery Fund (Recovery Fund). In response to a question asking if she had made a diligent effort
to collect payment from the contractor, Ms. Harvey answered "yes," explaining she had "filed lawsuit."
Ms. Harvey probably filed her claim within two years of when Thomson Homes, Inc., abandoned her job. By the end of March 1999, Mr. Thomson informed Ms. Harvey that his wife had fired him, so he could not work on her home anymore. A change in qualifier does not mean that Thomson Homes, Inc., would necessarily abandon the job, but, as noted in the Conclusions of Law, abandonment presumptively arises upon the expiration of 90 days without work. No work took place on Ms. Harvey's home after Mr. Thomson withdrew as qualifier, so presumptive abandonment took place by the end of June 1999--after May 3, 1999, which is two years prior to the date on which Ms. Harvey filed her claim.
By letter dated June 5, 2001, from James Brogan of WEI Consulting Group to Ms. Harvey, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in Bankruptcy Court in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home, but the furniture was no longer available.
On February 28, 2003, Respondent issued an Order approving Ms. Harvey's claim of $25,000 against the Recovery
Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Harvey is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Harvey and Respondent, contests the payment to Ms. Harvey and the automatic suspension of Petitioner's license. The petition contests the payment of
Ms. Harvey's claim because she had made insufficient efforts to satisfy the judgment; she had failed to submit all required exhibits with her claim; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Additionally, the petition contests the automatic suspension because the payment to
Ms. Harvey is not authorized, her claim is incomplete, and her judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3541 involves the claim of John and Kathleen Whitesides. The Whitesides, who lived at the time in Juno Beach, Florida, entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, the Whitesides agreed to pay Thomson Homes, Inc.,
$154,094 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour.
After the Whitesides paid Thomson Homes, Inc., $5000 and secured a construction loan, Thomson Homes, Inc., never commenced construction.
In a complaint filed April 3, 2000, the Whitesides commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction.
The Whitesides obtained a default final judgment against Thomson Homes, Inc., on December 21, 2000, for a total sum of $20,146.67, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: "Defendant is in breach of the Contract dated February 7, 1999, and has
received unjust enrichment from Defendant's failure to fulfill the terms of the Contract to build a home for Plaintiffs."
On August 9, 2001, David Tassell, the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., stated, in an acknowledged statement, that he had performed "numerous" real property searches in Palm Beach and Martin counties' public records and determined that Thomas Homes, Inc., "owns no real property in Martin County." The omission of Palm Beach County in the statement is unexplained. Mr. Tassell's statement adds that he has retained a private investigator, who confirmed that Thomson Homes, Inc., owns no boats, planes, or automobiles.
On August 10, 2001, the Whitesides filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Whitesides answered "yes," but did not supply an explanation in the following blank. The completed questionnaire accompanying the claim states that the Whitesides discovered the violation in September 1999 and that it occurred in July to August 1999.
On September 17, 2002, Respondent issued an Order approving the Whitesides' claim of $18,526.67 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the
paid claim. The Order, copies of which were served on all parties, states that the Whitesides are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
The Whitesides probably filed their claim within two years of when they reasonably should have discovered that Thomson Homes, Inc., had wrongfully failed to commence construction, as is required for reasons set forth in the Conclusions of Law. As noted in the Conclusions of Law, presumptive abandonment arose when Thomson Homes, Inc., after entering the contract, performed no work for 90 days. Six months elapsed from the signing of the contract to the date that is two years prior to the filing of the claim. Although the record is not well-developed on the point, it is more likely than not that due diligence did not require that the Whitesides discover the abandonment within the first 90 days after it had presumptively arisen.
The Whitesides' judgment is probably based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes, as is required for reasons set forth in the Conclusions of Law. Although the record is not well-developed on this point either, it is more likely than not that the
judgment is based on Thomson Homes' abandonment after entering into the contract. The judgment does not state this basis explicitly, but the complaint, on which the judgment is based, alleges abandonment.
On December 23, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., contests the payment to the Whitesides and the automatic suspension of Petitioner's license. The petition contests the payment of the Whitesides' claim because they did not file certified copies of the final judgment and levy and execution documents and their judgment did not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; Petitioner received no notice of the hearing that resulted in the Order to pay the Whitesides and suspend Petitioner's license; the Whitesides' claim is incomplete; and the Whitesides' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3542 involves the claim of Richard and Kathleen Beltz. The Beltzes entered into a construction
contract with Thomson Homes, Inc., on July 13, 1999. Pursuant to the agreement, the Beltzes agreed to pay Thomson Homes, Inc.,
$35,500 for a lot and $140,500 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour.
After the Beltzes paid Thomson Homes, Inc.,
$17,283.70, Thomson Homes, Inc., never appeared at the closing, which had been scheduled for August 10, 1999. Nor did Thomson Homes, Inc., ever commence construction. The record does not disclose the extent, if any, to which Thomson Homes, Inc., completed construction. The Beltzes' discovery of Thomson Homes' failure to commence construction was hampered by the fact that they resided in California at the time. However, the Beltzes had obviously discovered the wrongful acts and omissions of Thomson Homes, Inc., by September 29, 1999, when they sent a letter to Petitioner demanding that he return the money that they had paid Thomson Homes, Inc.
On October 19, 1999, the Beltzes signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. The completed questionnaire attached to the claim does not ask if the claimants had made a diligent effort to collect payment from the contractor.
For reasons set forth in the Conclusions of Law, a claim must follow a judgment, so, the Beltzes could not file a
valid claim until they had obtained a judgment. Two years from September 29, 1999, at which point the Beltzes obviously knew of a violation, requires that they file the claim, on an already- secured judgment, prior to September 29, 2001.
In a complaint filed February 4, 2002, the Beltzes commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen.
The Beltzes obtained a default final summary judgment against Thomson Homes, Inc., on May 22, 2002, for a total sum of
$23,280.20, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part:
Subsequent to entering into the above referenced contract, Defendant performed some work on the project. However, Defendant breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided.
As a result of Defendant failing to pay Lienors who provided labor, service and materials to Plaintiffs [sic] real property, Construction Liens were recorded against same, which Plaintiffs had to satisfy.
As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, failing to pay Lienors, the misapplication of construction funds and financial mismanagement, Plaintiffs were forced to borrow additional funds from their construction lender.
By unacknowledged statement dated August 23, 2002, Ms. Beltz declared that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Ms. Beltz stated that she searched the database of the "Department of Motor Vehicles in Palm Beach County" in May 2000 and found no vehicles or boats registered to Thomson Homes, Inc. Lastly, she reported that she contacted the "Federal Aviation Association" at an unspecified time and found no "airplanes" registered to Thomson Homes, Inc.
On November 26, 2002, Respondent issued an Order approving the Beltzes' claim of $17,222.78 against the Recovery
Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Beltzes are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On December 27, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Beltzes and Respondent, contests the payment to the Beltzes and the automatic suspension of Petitioner's license. The petition contests the payment of the Beltzes' claim because they did not submit all of the necessary exhibits with their claim; their judgment is against Thomson Homes, Inc., and not Petitioner; and their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; the Beltzes' claim is incomplete; and the Beltzes' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3543 involves the claim of Keith and Karen Deyo. The Deyos entered into a construction contract with Thomson Homes, Inc., on October 31, 1998. Pursuant to the agreement, the Deyos agreed to pay Thomson Homes, Inc., $25,500 for a lot and $123,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour.
Although the Deyos clearly suffered damages from the acts and omissions of Thomson Homes, Inc., the record does not disclose how much they paid the company, how much they had to pay unpaid suppliers and laborers, and how much construction the company completed before abandoning the job. Thomson Homes, Inc., began construction on the Deyos' home about 30-45 days after the parties signed the contract, but all work stopped in July 1999.
In an undated complaint, the Deyos commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment] of the project prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete
construction and pay for goods and services provided by subcontractors and materialmen.
The Deyos obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of
$55,458.64, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part:
Subsequent to entering into the above referenced contract, Defendant partially performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided.
As a result of Defendant failing to pay lienors who provided labor, services and materials to Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs had to satisfy.
As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender.
On April 27, 2000, the Deyos signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. A cover letter dated May 8, 2000, suggests
that the Deyos mailed their claim a couple of weeks after signing it, so it was probably filed in mid-May 2000, although their questionnaire bears a revision date of November 2001, which would be beyond two years after the violation. In the questionnaire, the Deyos did not respond to the question asking if they had made a diligent effort to collect payment from the contractor.
By an undated and unacknowledged statement, Mr. Deyo declared that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that he had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year.
Mr. Deyo stated that he searched the database of the "department of motor vehicles in Palm Beach County" in on April 14, 2000, and found no motor vehicles or boats registered to Thomson Homes, Inc. Lastly, he reported that he contacted the "Federal Aviation Association" on April 21, 2000, and found no "airplanes" registered to Thomson Homes, Inc.
On January 22, 2003, Respondent issued an Order acknowledging the Deyos' claim of $55,458.64, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid
claim. The Order, copies of which were served on all parties, states that Mr. Deyo is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On February 3, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Deyos' attorney who represented them in the action against Thomson Homes, Inc., contests the payment to the Deyos and the automatic suspension of Petitioner's license. The petition contests the payment of the Deyos' claim and suspension of Petitioner's license because Petitioner did not receive notice of the hearing at which Respondent entered the Order; the Deyos did not satisfy all requirements for payment from the Recovery Fund; their claim was not accompanied by certified copies of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3544 involves the claim of Sylvia Reinhardt. Ms. Reinhardt entered into a construction contract with Thomson Homes, Inc., on October 14, 1998. Pursuant to the agreement, Ms. Reinhardt agreed to pay Thomson Homes, Inc.,
$45,000 for a lot and $147,150 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour.
After Ms. Reinhardt paid Thomson Homes, Inc.,
$144,769, directly and indirectly, by way of her construction lender, the house was little more than half complete when Thomson Homes, Inc., abandoned the job. Thomson Homes also failed to pay various suppliers that filed liens, so
Ms. Reinhardt had to pay $8550.41 to RTS Roofing, $882 to Palm Beach Garage Door, and $3421.32 to Woodworks, Inc.
In an undated complaint filed in 1999 (actual date illegible), Ms. Reinhardt commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay
for goods and services provided by subcontractors and materialmen.
Ms. Reinhardt obtained a final summary judgment against Thomson Homes, Inc., on March 28, 2000, for a total sum of $61,471.15, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part:
Subsequent to entering into the above referenced contract, Defendant performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and materials provided.
As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff had to satisfy.
As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete their [sic] home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from her construction lender.
On April 17, 2000, Ms. Reinhardt filed a claim with the Recovery Fund. In response to a question asking if she had
made a diligent effort to collect payment from the contractor, Ms. Reinhardt answered "yes" and explained: "Telephone calls were unanswered. Certified mail requesting response were [sic] never answered. Our attorney made written and personal contact with the owner and there was no intention to pay." The claim states that the violation took place in July 1999.
By acknowledged statement dated July 21, 2000,
Ms. Reinhardt declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Reinhardt stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on
September 24, 1999. She also declared that she had found one parcel of property owned by Thomson Homes, Inc., and valued at
$115,387, but this had been sold to "Joan Thomson" on February 1, 2000. Ms. Reinhardt stated that she had found tangible personal property worth $5000. She added that she had not found any motor vehicles registered with the Department of Highway Safety and Motor Vehicles, nor had she found anything registered with the "FAA."
On November 26, 2002, Respondent issued an Order acknowledging Ms. Reinhardt's claim of $58,661.44, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he
reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Reinhardt is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On December 24, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Reinhardt and Respondent, contests the payment to Ms. Reinhardt and the automatic suspension of Petitioner's license. The petition contests the payment of
Ms. Reinhardt's claim and suspension of Petitioner's license because Ms. Reinhardt did not submit certified copies of the levy and execution documents; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3545 involves the claim of Louis and Ann Mahoney. The Mahoneys entered into a construction contract with Thomson Homes, Inc., on June 28, 1999, for the construction of a home in Martin County. Pursuant to the agreement, the
Mahoneys agreed to pay Thomson Homes, Inc., $32,000 for a lot and $149,000 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour.
After the Mahoneys paid Thomson Homes, Inc., $14,500, directly and indirectly, by way of their construction lender, they suffered damages due to the acts and omissions of Thomson Homes, Inc., although, again, the record does not describe specifically how Thomson Homes caused them damage.
In an undated complaint that bears no filing date, the Mahoneys commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen.
The Mahoneys obtained a final summary judgment against Thomson Homes, Inc., on April 13, 2000, for a total sum of
$43,084.49, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part:
Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiffs' deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, and/or services provided.
As a result of Defendant failing to pay lienor's [sic] who provided labor, services and materials for the construction of Plaintiffs [sic] residence, a construction lien was recorded against Plaintiffs' property, which Plaintiffs will have to satisfy.
As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender.
On April 30, 2000, the Mahoneys signed a claim under the Recovery Fund. Although the claim form bears no filing date, the completed questionnaire attached to the claim was filed on May 3, 2000, so that is the likely filing date of the claim. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Mahoneys answered "yes" and explained: "This is explained in
General Allegations, enclosed with this paperwork." Evidently, the reference is to a copy of the circuit court complaint.
By acknowledged statement dated April 8, 2002,
Mr. Mahoney declared that he had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy his judgment. Mr. Mahoney stated that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that an internet search had disclosed no property owned by Thomson Homes, Inc. Mr. Mahoney stated that the "department of motor vehicles in Palm Beach County" found no motor vehicles or boats registered to Thomson Homes, Inc., and that the "FAA" had found nothing registered to Thomson Homes, Inc.
On February 28, 2003, Respondent issued an Order acknowledging the Mahoneys' claim of $38,185, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Mr. Mahoney is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal
hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On March 17, 2003, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Mahoneys and Respondent, contests the payment to the Mahoneys and the automatic suspension of Petitioner's license. The petition contests the payment of the Mahoneys' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3546 involves the claim of Dennis and Carolyn DeStefanis. The DeStefanises entered into a construction contract with Thomson Homes, Inc., on April 7, 1999. Pursuant to the agreement, the DeStefanises agreed to pay Thomson Homes, Inc., $137,455 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour.
After the DeStefanises paid Thomson Homes, Inc.,
$15,765, directly and indirectly, by way of their construction
lender, Thomson Homes, Inc. never did any work, except to contract with a surveyor, who, unpaid, filed a claim of lien against the DeStefanises's lot.
In an undated complaint bearing no filing date, the DeStefanises commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen.
The DeStefanises obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $36,701.87, including attorneys' fees and costs. The judgment states, in part:
Subsequent to entering . . . into the above referenced contract, Defendant, [sic] breached its contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project.
[sic] As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to
complete their home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender.
On April 19, 2000, the DeStefanises filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the DeStefanises answered "yes" and explained: "Went to DBPR Investigative Services, hired Attorney Barry W. Taylor [attorney in circuit court action], got Final Summary Judgment against Thomson Homes, Inc."
On March 20, 2003, Respondent issued an Order acknowledging the DeStefanises' claim of $34,965.52, approving the payment of $15,765 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the DeStefanises are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On April 7, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the DeStefanises and Respondent, contests the payment to the DeStefanises and the automatic suspension of Petitioner's license. The petition contests the payment of the DeStefanises' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. The petition contests the suspension of Petitioner's license on the additional ground that he was not the qualifier for Thomson Homes, Inc., when it and the DeStefanises entered into the construction contract. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3547 involves the claim of James and Donna Barr. The Barrs entered into a construction contract with Thomson Homes, Inc., on September 12, 1998. Pursuant to the agreement, the Barrs agreed to pay Thomson Homes, Inc., $30,000 for a lot and $140,900 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour.
The Barrs paid Thomson Homes, Inc., $8500 in the form of a down payment. They or their construction lender paid Thomson Homes, Inc., considerably more money and suffered the imposition of claims of lien by unpaid subcontractors and suppliers, but, after negotiating with the bank, emerged from the transaction having lost only the $8500 down payment. Thomson Homes, Inc., obtained permits in April 1999 and started construction in May 1999. Before abandoning the job, Thomson Homes, Inc., worked on the home in May, June, and July of 1999. The Barrs and their lender did not make additional payments after the Barrs found the Thomson Homes, Inc., office empty on August 1, 1999.
In a complaint filed October 6, 1999, the Barrs commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen.
The Barrs obtained a final summary judgment against Thomson Homes, Inc., on May 8, 2000, for a total sum of
$45,435.62, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part:
Subsequent to entering into the above referenced contract, partially performed work under the Contract. However, Defendant breached the contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided.
As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs will have to satisfy.
As a result of Defendant abandoning the project, Plaintiffs will be compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, failing to pay lienors, the misapplication of construction funds and financial mismanagement Plaintiffs will be forced to borrow additional funds from their construction lender.
On June 2, 2000, the Barrs filed a claim under the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Barrs answered "yes" and explained: "I have looked into the assets of Thomson Homes Inc. and they do not have any. My
affidavit is attached." The completed questionnaire states that the Barrs discovered the violation on August 11, 1999. They therefore failed to file their claim within two years of the discovery of the violation.
By acknowledged statement dated May 23, 2000, Ms. Barr declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Barr stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared she had found no property owned by Thomson Homes, Inc., in Palm Beach County. Ms. Barr stated that the Department of Highway Safety and Motor Vehicles found no motor vehicles or boats registered to Thomson Homes, Inc., and that the internet site of the "FAA" had revealed nothing registered to Thomson Homes, Inc.
On November 26, 2002, Respondent issued an Order approving the payment of the Barrs' claim of $8500 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Barrs are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a
formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On December 27, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Barrs and Respondent, contests the payment to the Barrs and the automatic suspension of Petitioner's license. The petition contests the payment of the Barrs' claim and suspension of Petitioner's license because they did not submit a certified copy of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
DOAH Case No. 03-3633 involves the Joanne Myers.
Ms. Myers entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, Ms. Myers agreed to pay Thomson Homes, Inc., $29,500 for a lot and $125,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour.
Ms. Myers directly or indirectly paid Thomson Homes, Inc., $12,840. According to Ms. Myers' claim, Thomson Homes,
Inc., never commenced construction before going out of business in August 1999.
In an undated complaint bearing no filing date,
Ms. Myers commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen.
Ms. Myers obtained a final summary judgment against Thomson Homes, Inc., on May 31, 2000, for a total sum of
$28,307.77, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part:
Subsequent to entering . . . into the above referenced contract, Defendant breached the contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided.
As a result of Defendant failing to pay lienor's [sic] who provided labor, services and/or materials for the construction of Plaintiff's residence, construction liens
were recorded against same, which Plaintiff will have to satisfy.
As a result of Defendant abandoning the project, Plaintiff will be compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount.
As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff will be forced to borrow additional funds from her construction lender.
On September 18, 2000, Ms. Myers filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Myers answered "yes" and explained: "Contractor closed corporate office--would not answer telephone calls."
By letter dated November 30, 2000, from James Brogan of WEI Consulting Group to Ms. Myers, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home.
On February 28, 2003, Respondent issued an Order approving the payment of Ms. Myers' claim of $14,080.66 against the Recovery Fund and automatically suspending Petitioner's
license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Myers is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute.
On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Myers and Respondent, contests the payment to Ms. Myers and the automatic suspension of Petitioner's license. The petition contests the payment of
Ms. Myers' claim and suspension of Petitioner's license because she did not submit evidence of a diligent search for assets; she did not submit all of the required exhibits; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes.
Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes.
On January 4, 2004, Ms. Myers died. However, the probate court of Lancaster County, Pennsylvania, issued letters
testamentary on her estate to James W. Myers III, in whose name Ms. Myers' claim is now being prosecuted.
At the hearing, Petitioner contended that most, if not all, of the claims failed because the claimants had not exercised reasonable diligence in searching for assets, although Petitioner has dropped this contention in its proposed recommended order. In his petitions for hearing, Petitioner raised this contention only as to Ms. Myers.
Ms. Myers, as well as the remainder of the claimants, made or caused to be made a reasonable search and inquiry for the assets of Thomson Homes, Inc. It is obvious that Thomson Homes, Inc., had no assets by the first letter from Mr. Brogan, dated November 30, 2000, nor did it have assets when Mr. Brogan issued his later letter on June 5, 2001, or when the attorney issued his affidavit on August 9, 2001. What is reasonable, in terms of a search, is dictated here by the fact that Thomson Homes, Inc., had no discoverable assets against which it could be made to answer for the considerable fraud that it perpetrated against these nine claimants.
Respondent provided all of the parties, including Petitioner, with notice of its hearings at which it entered Recovery Fund orders. The petitions contend that Petitioner received no such notice in the Whitesides and Deyos cases. Although not litigated at the hearing, the presumption of
notice, pursuant to the recitations set forth in each of Respondent's orders, results in a finding that Petitioner received timely notice in all cases.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Florida Statutes (2003).
Section 489.141 provides:
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)(g), (j), or (k), where the contract was executed and the violation occurred on or after July 1, 1993, and provided that:
1.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 489.141(1), Florida Statutes, thus establishes four sets of requirements for a person to recover from the Recovery Fund. Section 489.141 recognizes that claimants may seek relief based on judgments, which would issue from courts, or restitution orders, which would issue from Respondent. Section 489.141 also recognizes two types of obligors with respect to claimants: judgment debtors and licensees. As a general principle, claimants under construction contracts obtain judgments against contracting parties, which would include natural-person licensees doing business as sole proprietors or general partners, but would exclude the presumed majority of contractors doing business as corporations, limited partnerships, or limited liability companies with licensed natural persons qualifying the businesses.
Section 489.141(1)(a), Florida Statutes, requires that the claimant may seek recovery from the Recovery Fund after he or she has obtained a court judgment "in any action wherein the cause of action was based on a construction contract" or a restitution order from Respondent "based upon a violation of s. 489.129(1)(g), (j), or (k) . . .." Although it would seem that Section 489.141(1)(a) requires that the court judgment be based merely on a construction contract, Section 489.140(1), Florida Statutes, requires that "the judgment or restitution order [be] based on a violation of s. 489.129(1)(g), (j), or (k) "
Section 489.141(1)(a)1, Florida Statutes, requires that the claimant seek payment from the Recovery Fund after he or she has taken certain actions to recover upon the judgment or restitution order. Section 489.141(1)(a)1.a addresses claimants who have obtained writs of execution, but none of the nine claimants in these cases obtained such a writ, so this provision is irrelevant. Section 489.141(1)(a)1.b addresses claimants who are "unable to comply" with the requirement of Section 489.141(1)(a)1.a.
Futility is among the reasons why a claimant might be "unable to comply" with the requirement of pursuing writs of execution. In these cases, the only consequence of obtaining and serving writs of execution on Thomson Homes, Inc., would have been needless expense to the claimants.
Section 489.141(1)(a)1.b, Florida Statutes, requires the claimant who chooses not to pursue a writ of execution to make "all reasonable searches and inquiries" to determine if the judgment debtor or licensee owns assets to satisfy the debt.
Florida Administrative Code Rule 61G4-21.002(1) provides:
“All reasonable searches and inquiries,” as provided in Section 489.141(1)(a)3., F.S., shall mean that exhaustive efforts have been made to determine whether the licensee possesses any property or assets with which to satisfy the civil judgment, in whole or in part, and that no such property or assets has been identified or located. Reasonable searches and inquiries shall constitute the following: Proof from the claimant that the claimant has conducted a property records search in the licensee’s county(ies) of residence and principal place of business, and has made inquiries with the Department of Highway Safety and Motor Vehicles, Bureau of Titling and Registration, the Federal Aviation Administration, and the Department of State, Uniform Commercial Code filings section.
Section 489.141(1)(b), Florida Statutes, requires that a claimant seeking payment from the Recovery Fund file his or her claim within a specified period of time. In general, the claims period is two years from the wrongful act or omission or two years from when the claimant discovered or reasonably should have discovered the wrongful act or omission. If the claimant seeks the benefit of the longer claims period, which starts from the date of discovery or when he or she reasonably should have
discovered the wrongful act, he or she must, in any event, file the claim by the later of four years after the wrongful act or omission or one year after the conclusion of any civil action or administration proceeding.
One case has construed Section 489.141(1)(b), Florida Statutes. In Free v. Construction Industries Licensing Board, 729 So. 2d 980 (Fla. 2d DCA 1999), the court held that Respondent lacks the authority to waive the two-year claims period to allow a claimant to file an untimely claim and that the violation that starts the time running is the first violation.
Section 489.141(1)(b), Florida Statutes, is a nonclaim statute, which is jurisdictional, rather than a mere statute of limitations. In Special Disability Trust Fund v.
Robbins Manufacturing Company, 484 So. 2d 54 (Fla. 1st DCA 1986), the court held that a workers' compensation statute, which provided for reimbursement of certain excess payments by employers or carriers, was also a nonclaim statute, which could not be waived, rather than a statute of limitations, which could be waived. Rejecting the argument that the statute before it was remedial and should be interpreted more liberally, the court stated when a statute "' confers a right and expressly fixes the period within which to enforce the right, such period is treated
as the essence of the right to maintain the action . . ..'" 484 So. 2d at 56 [citation omitted].
As noted in May v. Illinois National Insurance Company, 771 So. 2d 1143, 1151 (Fla. 2000), one important distinction between a nonclaim statute and a statute of limitations is that the untimely claim under a nonclaim statute is "automatically barred," but an untimely claim under a statute of limitations is barred only if the opposing party timely raises the affirmative defense of the statute of limitations. Even a court lacks the authority to extend the period established by a nonclaim statute.
The May court held that one of two disputed probate code provisions, which governs filing claims against an estate, is a nonclaim statute due to its role in the overall administration of estates and the importance of an irrevocable statute of repose. In reaching this decision, the May court gave careful consideration to the language of finality in the statutory provision.
Section 489.141(1)(b) is a nonclaim statute because, like the statute in Robbins Manufacturing, it calls for reimbursement from a special fund, and, like the statute in May, it provides a means by which claimants with judgments may obtain reimbursement. The nonclaim statute in these nine cases "fixes the period within which [a claimant may] enforce [his or her]
right" to reimbursement from the Recovery Fund. The importance of such a statute of repose is to ensure that aged claims do not disrupt the allocation of funds in the Recovery Fund, as detailed in Section 489.143, Florida Statutes, which is cited below.
The Legislature emphasizes that Section 489.141(1)(b) is a nonclaim statute by the directness of the language that a "claim for recovery is made" and the forcefulness of its warning that, "in no event may a claim for recovery be made" more than the later of four years after the violation or one year after the conclusion of the civil action or administrative proceeding. These periods are the "essence of the right" to file claims against the Recovery Fund.
At the hearing, counsel for Respondent misread the four- and one-year clause as providing alternatives to the two- year claims periods stated in the first clause, so that a claimant could timely file a claim three years and eleven months after the violation, without regard to when he or she discovered the violation or reasonably should have discovered the violation. Obviously, such a reading frustrates the obvious Legislative intent in the first clause to require that claims be filed within two years of the violation or two years of the discovery of the violation of when the violation should reasonably have been discovered. The purpose of the final
clause is to limit the extension of the claims period through liberal interpretations of when the violation reasonably should have been discovered.
The last two sets of requirements imposed upon claimants are in Section 489.141(1)(c) and (d), Florida Statutes, but are irrelevant to these cases.
As an applicant, each claimant has the burden of proving his or her entitlement to funds from the Recovery Fund. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The standard of proof in adjudicating the claimants' claims is a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes, provides: " Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute "
Section 489.129(1), Florida Statutes, provides, in relevant part:
(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:
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.
The final judgments in all but one case demonstrate that the judgments are based on mismanagement, within the meaning of Section 489.129(1)(g), Florida Statutes, and, in most cases, abandonment, within the meaning of Section 489.129(1)(j), Florida Statutes. The sole exception is the claim of the Whitesides.
The Whitesides' judgment is too spare to provide a basis by which to determine that it is more likely than not based on one of the three required subsections of Section 489.129(1), Florida Statutes. However, the complaint alleges abandonment. It is thus more likely than not that the judgment is based on abandonment within the meaning of Section 489.129(1)(j), Florida Statutes.
As noted above, all of the claimants satisfied the requirement of Section 489.141(1)(a)1.b, Florida Statutes, which concerns the "reasonable searches and inquiries."
With two exceptions, it is more likely than not that all of the claimants filed timely claims, under Section 489.141(1)(b), Florida Statutes. The Beltzes never filed a claim within two years of their letter of September 29, 1999, in which they revealed their knowledge of Thomson Homes' violations. They filed a claim on October 19, 1999, but before they had a judgment. The whole structure of Recovery Fund provisions, including most prominently Section 489.141(1)(a), is to reimburse claimants holding unpaid judgments (or restitution orders). A prematurely filed claim does not override the nonclaim statute, which had expired before the Beltzes obtained their judgment.
The Barrs also failed to file a claim within two years of their discovery of the violation, which they admitted in their claim questionnaire was August 11, 1999. They filed their claim on June 2, 2002, which was ten months too late.
Petitioner's other defenses, such as the requirement of certified copies of judgments, levies, or executions, and the role of Ms. Thomson's deceit, in violation of Section 489.132, Florida Statutes, are unavailable to defend either the claims to payments from the Recovery Fund or the claim, considered below,
of Respondent to automatically suspend Petitioner's license until he pays the amounts paid from the Recovery Fund. The relevant statutes do not require the certified copies, and, if required by rules, Respondent may waive compliance. Section 489.132, Florida Statutes, does not relieve a qualifier from his or her professional obligations toward the public, but instead provides a basis for punishing a transgressing nonlicensee who is a principal of a contractor.
Section 489.143, Florida Statutes, provides:
Any person who meets all of the conditions prescribed in s. 489.141(1) may apply to the 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 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.
Payments for claims arising out of the same transaction shall be limited, in the aggregate, to $25,000, regardless of the number of claimants involved in the transaction.
Payments for claims against any one licensee shall not exceed, in the aggregate,
$100,000 annually, up to a total aggregate of $250,000. Beginning January 1, 1998, for any claim approved by the board which is in excess of the annual cap, the amount in excess of $100,000 up to the total aggregate cap of $250,000 is eligible for payment in the next and succeeding fiscal years, but only after all claims for the then-current calendar year have been paid. Payments may not exceed the aggregate annual or per claimant limits under law.
Claims shall be paid in the order filed, up to the aggregate limits for each transaction and licensee and to the limits of the amount appropriated to pay claims against the fund for the fiscal year in which the claims were filed.
If the annual appropriation is exhausted with claims pending, such claims shall be carried forward to the next fiscal year. Any moneys in excess of pending claims remaining in the Construction Industries Recovery Fund at the end of the fiscal year shall be paid as provided in s. 468.631.
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.
Respondent's claim against Petitioner will, if successful, result in the suspension of Petitioner's license. Pursuant to Section 120.57(1)(j), Florida Statutes, cited above, the standard of proof is clear and convincing evidence because the nature of this proceeding is penal. See also Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996). Obviously, the burden of proof is on Respondent. Id.
The question arises concerning the extent to which to apply the clear-and-convincing standard. It doubtlessly applies to the factual determinations arising exclusively under Section 489.143, Florida Statutes. Although not raised in these cases, such factual determinations include whether the licensee has reimbursed the Recovery Fund and, if so, to what extent, as well as whether Respondent has complied with the payment limitations of Section 489.143(1)-(6) as to the payments for which it is imposing the automatic suspension. A third element requiring
clear and convincing proof is whether the judgment or restitution order is against the licensee; although a key issue in this case, this factual determination should be easily resolved in nearly every case, so the applicable standard of proof applied to this issue is relatively unimportant.
The more difficult question is whether to revisit the factual determinations under Section 489.141, Florida Statutes, to determine whether Respondent may automatically suspend the license. Such a redetermination of factual issues would not change the payment outcomes to claimants, but would possibly result in a finding that a claimant had not proved his or her claim by clear and convincing evidence, so, even though the Recovery Fund paid the claim lawfully, such payment would not be a ground for automatic suspension.
This distinction would have an impact in these cases.
If the Whitesides' claim were evaluated by clear and convincing evidence, it would doubtlessly fail due to the timing of the filing of the claim and the uncertainty as to the basis of the judgment. The Deyos' claim would also fail, by clear and convincing evidence, because of the uncertainty attached to its filing date.
At the hearing, the Administrative Law Judge stated that the claimants would have to prove by a preponderance of the evidence their claims to payments from the Recovery Fund, but
Respondent would have to prove by clear and convincing evidence all elements of the suspension claim, including the entitlement of the claimants to payments from the Recovery Fund. The last part of this statement is wrong and unworkable. The better approach is not to require Respondent to reprove the Section
489.141 elements by clear and convincing evidence, but instead to accept proved claims, even though established merely by a preponderance of the evidence, as proved for the suspension claim.
The better approach avoids the awkward prospect of the creation of two classes of payments from the Recovery Fund: one for which the entitlement evidence was sufficiently strong as to require reimbursement or suffer automatic suspension and one for which the entitlement evidence was weaker, so that the licensee is not required to make reimbursement or suffer automatic suspension, even though these claims have been paid. Nothing in the statutes suggests that the Legislature would have anticipated two classes of payments from the Recovery Fund.
Revisiting the factual determinations under Section
489.141 using the clear-and-convincing standard is cumbersome and confusing. The operative fact in the suspension claim is the fact of payment from the Recovery Fund, not the more nuanced determination of the extent to which a claimant established his or her right to payment.
Accepting the outcome of the Section 489.141 claims- adjudication process, rather than revisiting it with a more rigorous standard of proof, underscores the separate roles of Section 489.141, which applies to licensees and judgment debtors, and Section 489.143, which applies only to licensees.
Accepting the outcome of the Section 489.141 claims- adjudication process, rather than revisiting it with a more rigorous standard of proof, is consistent with the recognition, as in these cases, of a licensee's standing to contest the actual payment of claims from the Recovery Fund, as opposed merely to the licensee's right to contest the more theoretical question of the extent to which the claimants proved their claims. If a licensee were entitled to oppose the automatic suspension by interposing the defense that the claimants failed to prove their entitlement by clear and convincing evidence, then the licensee could maintain this defense without opposing the claims themselves. If the licensee could adequately defend the suspension by this theoretical exercise, without the necessity of opposing the actual payments from the Recovery Fund, the licensee would probably lack the standing to contest the claims themselves. Denying the licensee the opportunity to oppose the payments would result, in these cases, in two payments from the Recovery Fund that were not authorized by statute. Allowing the licensee to contest merely the standard
of proof by which the claimants proved their claims would confuse the claimants and possibly subject them to additional demands on their time, as they would be required to give statements or testify at two phases of the process--one possibly long after they had already received their payment from the Recovery Fund.
Pursuant to the above findings and conclusions, Respondent will pay the claims of seven of the claimants from the Recovery Fund, and the fact of these seven payments is established for Respondent's suspension claim. Section 489.143(7), Florida Statutes, provides that, upon such a payment "in satisfaction of a judgment or restitution order against a licensee . . ., the license of such licensee shall be automatically suspended "
Section 489.143(7), Florida Statutes, authorizes automatic suspension when the Recovery Fund payment is in satisfaction of a judgment or restitution order against a licensee, but the statute does not authorize automatic suspension when the Recovery Fund payment is in satisfaction of a judgment against a nonlicensee. Unlike Section 489.141, which addresses the obligations of licensees and judgment debtors, Section 489.143(7) addresses the obligations only of licensees. If the obligor, as here, is a judgment debtor that is not the licensee, the automatic suspension provision of Section
489.143(7) does not apply. Section 489.143(7), Florida Statutes, is a penal statute and must be construed strictly. See, e.g., Jonas v. Department of Business and Professional Regulation, 746 So. 2d 126 (Fla. 3d DCA 2000) (per curiam).
None of the claimants in these nine cases has a restitution order of any kind; they all have judgments, but the judgments are against Thomson Homes, Inc., not Petitioner. The Legislature left no doubt: the judgment must be against Petitioner for him to suffer an automatic suspension upon payment from the Recovery Fund. Respondent is not free to correct what it views as a mistake by the Legislature and suspend Petitioner's license for paid claims from the Recovery Fund based on unpaid judgments against Thomson Homes, Inc.
The limitation of Section 489.143(7), Florida Statutes, to "licensees" makes sense because the penalty is imposed against the licensee. Nor does this reading of the statute eliminate its effectiveness as to judgments. As already noted, licensees conducting business as sole proprietors or general partners may suffer personal judgments arising out of construction contracts.
For the many more licensees conducting business in corporations or other limited-liability forms, as well as for those licensees serving merely as qualifiers, the quick commencement of disciplinary proceedings against such licensees
will result in restitution orders well within two years of the violations. In such cases, the claimants may file timely claims against the Recovery Fund, using restitution orders against the licensee, and, upon payment of these claims, Respondent may automatically suspend the license until the licensee reimburses the Recovery Fund.
In its proposed recommended order, Respondent expressed concern with the administration of the payment provisions of Section 489.143(1)-(6), Florida Statutes, if they are limited to judgments or restitution orders against licensees and do not also apply to judgments against nonlicensees. Like Section 489.143(7), Section 489.143(1),(4), and (5) mentions licensees, but not judgment debtors.
However, the Legislature has recognized that one statute may contain penal and remedial provisions. See Section 498.003(4), Florida Statutes. Except for Section 489.143(7), Section 489.143 is a remedial statute, whose provisions must be interpreted and applied liberally to effectuate the purpose of the statute. See, e.g., Irven v. Department of Health and Rehabilitative Services, 790 So. 2d 403, 406 (Fla. 2001). The purpose of Section 489.143(1)-(6) is to assure that the limited funds of the Recovery Fund are fairly and timely distributed to as many qualifying claimants as possible. To protect the interests of present and future claimants, a liberal
interpretation of Section 489.143(1), (4), and (5) should apply these statutory provisions to claimants whose obligors are nonlicensee judgment debtors, as well as to claimants whose obligors are licensees. Thus, even though the provisions of Section 489.143(7) do not apply to Petitioner, the provisions of Section 489.143(1)-(6) apply to the claimants in these cases.
Petitioner has sought his reasonable attorneys' fees and costs, pursuant to Section 57.111, Florida Statutes. Among other requirements is that Petitioner be the prevailing party. The record indicates that, in the past, Respondent has interpreted Section 489.143(7), Florida Statutes, to extend to Petitioner under the facts of these cases. Thus, until the issuance of a final order and, if applicable, the disposition of all appeals, it is too early to identify the prevailing party in these cases. For this reason, the Administrative Law Judge will reserve jurisdiction to address Petitioner's claim under Section
57.111 upon final resolution of these cases, provided Petitioner files a motion requesting such relief with the Division of Administrative Hearings within 60 days from the expiration of the time to appeal the final order or, if appealed, the expiration of the time to request a rehearing or appeal any appellate decision.
It is
RECOMMENDED that Respondent enter a final order dismissing the claims against the Recovery Fund of the Beltzes and Barrs; paying the claims against the Recovery Fund of the remaining claimants, pursuant to the provisions of the orders of Respondent already issued in these cases and pursuant to the provisions of Section 489.143(1)-(6), Florida Statutes; and dismissing Respondent's request for the automatic suspension of Petitioner's license, pursuant to Section 489.143(7), Florida Statutes, without prejudice to any separate disciplinary proceedings that Respondent has commenced or may commence against Petitioner or others for the acts and omissions involved in these nine cases.
DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida.
S
ROBERT E. MEALE
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 17th day of February, 2004.
COPIES FURNISHED:
Bruce G. Kaleita
Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500
West Palm Beach, Florida 33401
Adrienne C. Rodgers Assistant General Counsel Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-1023
Tim Vaccaro, Director
Construction Industry Licensing Board Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Nancy Campiglia, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-2202
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 02, 2004 | Agency Final Order | |
| Feb. 17, 2004 | Recommended Order | Two of the 9 claimants failed to file claims against the Constuction Industries Recovery Fund w/in 2 years. The other claimants are entitled to payment. Resp. may not suspend license because judgments are against corporate contractor, not the licensee. |
