STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 92-6323
)
GONZALO ARDAVIN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its Hearing Officer, Michael M. Parrish, conducted a formal hearing on January 25, 1995, at Miami, Florida.
APPEARANCES
For Petitioner: Charles F. Tunnicliff, Esquire
Division Director, Division of Regulation Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792 For Respondent: (No appearance)
STATEMENT OF THE ISSUE
This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes. Specifically, the Respondent has been charged in a three-count Administrative Complaint with violations of paragraphs (e), (h) and (m) of Section 489.129(1), Florida Statutes.
PRELIMINARY STATEMENT
Although the Respondent was provided with written notice of the date, time, and place at which the formal hearing in this case would be conducted, there was no appearance by or on behalf of the Respondent at the formal hearing. The Hearing Officer has not received any communication from the Respondent at any time since the formal hearing.
At the formal hearing on January 25, 1995, the Petitioner presented the testimony of Carlos Nachon, Samuel H. Osario, Gina Kasperowicz, Rafael Perez, William Uffendell and Frank Abbott. The last mentioned witness was tendered and received as an expert in architecture and construction. Petitioner's Exhibits
numbered 1 through 18 were identified and admitted into evidence. (Three of the exhibits were late-filed on the basis of leave requested and granted at the formal hearing.)
At the conclusion of the formal hearing the Petitioner requested that the parties be allowed twenty days from the filing of the transcript within which to file their proposed recommended orders. The request was granted. The transcript of the hearing was filed with the Hearing Officer on February 13, 1995. By memorandum dated February 15, 1995, all parties were advised in writing that the deadline for service of their proposed recommended orders was March 6, 1995.
On March 6, 1995, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent has not filed anything since the formal hearing. With the exception of a few editorial changes in the interest of clarity, the findings of fact which follow incorporate all of the proposed findings of fact submitted by the Petitioner.
With the exception of some portions of the proposed conclusions regarding the appropriate penalty, the conclusions of law in this Recommended Order have adopted the essence of the proposed conclusions of law submitted by the Petitioner.
FINDINGS OF FACT
Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C046109, by the State of Florida.
At all times material hereto, the Respondent was the qualifying agent for Florida Hi-Tech Construction, Inc.
On November 2, 1990, the Respondent, doing business as Florida Hi-Tech Construction, Inc., contracted with New Life Presbyterian Church for the construction of a church at 7355 Coral Way, Miami, Florida 33155, for the price of Two Hundred and Ninety Four Thousand dollars ($294,000.00).
New Life Presbyterian Church paid Florida Hi-Tech Construction, Inc., One Hundred and Four Thousand dollars ($104,000.00) toward the contract price.
The Respondent constructed a foundation and two exterior concrete block walls with tie beams, and then abandoned the project without just cause or notice to the owner during or near March of 1991.
The work performed by the Respondent amounted to approximately ten or fifteen percent of the total work to be performed under the contract.
The amount of money the Respondent received from the New Life Presbyterian Church amounted to approximately thirty-five percent of the full price to be paid under the contract.
On May 17, 1991, a lien in the amount of One Thousand Eighty Nine dollars and Seven cents ($1,089.07) was filed against 7355 Coral Way, Miami, Florida 33155, the property known as New Life Presbyterian Church, for building materials furnished by Nachon Enterprises, Inc., in accordance with a contract between Florida Hi-Tech Construction, Inc., and Nachon Enterprises, Inc.
The Respondent failed to remove said lien and the New Life Presbyterian Church paid Nachon Enterprises, Inc., to satisfy said lien.
On April 19, 1991, a lien in the amount of Ten Thousand One Hundred Eighty Four dollars and Fourteen cents ($10,184.14) was filed by Southeastern Municipal Supply, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering.
On April 19, 1991, a lien in the amount of One Thousand Eight Hundred Sixty One dollars and Thirty Six cents ($1,861.36) was filed by PreCon Products, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering.
The Respondent failed to remove the liens filed by Southeastern Municipal Supply and PreCon Products, a Division of Clayton Group, Inc., and New Life Presbyterian Church paid both liens.
Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church by Southeastern Municipal Supply and PreCon Products, both Divisions of Clayton Group, Inc., were furnished in accordance with Respondent's instructions.
On May 17, 1991, a lien in the amount of Four Thousand Seven Hundred Ninety Four dollars and Ninety One cents ($4,794.91) was filed by Standard Concrete Corporation against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Standard Concrete Corporation.
On February 1, 1991, a lien in the amount of Four Thousand Nine Hundred Ninety Nine dollars and Eighty Four cents ($4,999.84) was filed by Central Concrete Supermix, Inc., against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Central Concrete Supermix, Inc.
The Respondent failed to remove the lien filed by Central Concrete Supermix, Inc., and the New Life Presbyterian Church paid Four Thousand dollars ($4,000.00) in satisfaction of the lien.
On February 22, 1991, a lien in the amount of Two Thousand One Hundred Twelve dollars ($2,112.00) was filed by Del Amo Plumbing, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials and labor furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Del Amo Plumbing, Inc.
The Respondent failed to remove the lien filed by Del Amo Plumbing,
Inc.
On April 10, 1991, a lien in the amount of Two Thousand Two Hundred
and Fourteen dollars and Ninety Three cents ($2,214.93) was filed by Austin Tupler Trucking, Inc., against 7355 Coral Way, Miami, Florida 33155, for trucking and related services furnished in accordance with a contract between Downrite Engineering and Florida Hi-Tech Construction, Inc.
The Respondent failed to remove the lien filed by Austin Tupler Trucking, Inc., and the New Life Presbyterian Church paid to satisfy the lien.
Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church, by Austin Tupler Trucking, Inc., were furnished in accordance with the Respondent's instructions.
New Life Presbyterian Church overpaid the Respondent by approximately Sixty Five Thousand Seven Hundred and Five dollars ($65,705.00).
The New Life Presbyterian Church suffered financial harm as a result of the Respondent's activities.
The Respondent obtained money draws from the New Life Presbyterian Church in a manner that did not conform to the contract requirements.
The Respondent hired Joe Al Electric, Inc., to perform electrical work on the New Life Presbyterian Church.
Joe Al Electric, Inc., was not a licensed entity pursuant to Chapter 489, Florida Statutes.
The Respondent failed to ensure that Joe Al Electric, Inc., was an entity licensed to practice electrical contracting in the State of Florida.
The Respondent assisted Joe Al Electric, Inc., in the uncertified and unregistered practice of contracting.
The Respondent was previously found guilty of violations of paragraphs (k), (h), and (m) of Section 489.129(1), Florida Statutes, in a Final Order issued by the Construction Industry Licensing Board on May 13, 1994, in DBPR Case No. 92-14332.
As of the date on which it submitted its proposed recommended order, the Petitioner had incurred costs associated with the investigation and prosecution of this case of at least Eight Thousand Three Hundred Six dollars and Sixty Two cents ($8,306.62).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57, Florida Statutes.
The Florida Construction Industry Licensing Board is empowered to revoke, suspend, or otherwise discipline the license of a contractor for any of the violations itemized in Section 489.129(1), Florida Statutes.
Petitioner has the burden of proof in this license discipline case and must prove the charges contained in this Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Company v. Department of Agriculture and Consumer Services, 557 So.2d 112, 116 (Fla. 1st DCA 1989); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 1st DCA 1988).
The Petitioner's 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). In addition, the disciplinary action taken may be based only upon the offenses specifically alleged in the Administrative Complaint. See, Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129, 133, (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984). Similarly, respondents in license discipline cases are entitled to notice of the penalty sought by the agency, and the penalty imposed cannot be more severe than the most severe potential penalty of which a respondent had notice. Williams v. Turlington, 498 So.2d 468 (Fla. 3d DCA 1986).
Count I of the Administrative Complaint charges the Respondent with violation of Section 489.129(l)(e), Florida Statutes, by hiring an unlicensed entity (Joe Al Electric, Inc.) to perform electrical work on the subject contract. Section 489.129(l)(e), Florida Statutes, authorizes disciplinary action for the following conduct:
Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificate-holder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.
The evidence in this case is sufficient to establish the violation alleged in Count I of the Administrative Complaint. The Respondent knew, or should have known, that Joe Al Electric, Inc., was uncertified and unregistered at the time it was hired to work on the subject contract.
Count II of the Administrative Complaint charges the Respondent with violation of Section 489.129(l)(h), Florida Statutes, by reason of the Respondent having allowed various specified liens to be filed against the customer's property for supplies and services for which the Respondent had been paid by the customer. Section 489.129(l)(h), Florida Statutes, authorizes disciplinary action for the following conduct:
Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
The evidence in this case is sufficient to establish the violation alleged in Count Two of the Administrative Complaint. The Respondent's failure to pay various amounts owed to subcontractors was clearly mismanagement and misconduct in the practice of contracting and that failure clearly caused financial harm to the customer.
Count III of the Administrative Complaint charges the Respondent with violation of Section 489.129(l)(m), Florida Statutes, by reason of the same conduct that constitutes the factual predicate for the violations alleged in Counts I and II of the Administrative Complaint. Count III of the Administrative Complaint alleges that such conduct also constitutes "misconduct in the practice of contracting" within the meaning of Section 489.129(l)(m), Florida Statutes.
The evidence in this case is sufficient to establish the violation alleged in Count III of the Administrative Complaint. However, inasmuch as the violation alleged in Count III is based on the very same facts as the violations alleged in Counts I and II, the violation alleged in Count III, even though proved, is not a sufficient basis for imposition of any penalty in addition to the penalties warranted by the violations described in Counts I and II.
Rule 61G4-17.001(19), Florida Administrative Code, reads as follows, in pertinent part:
For any violation occurring after October 1, 1989, the Board may assess the costs of investigation and prosecution. The assessment of such costs may be made in addition to the penalties provided by these guidelines without demonstration of aggra- vating factors set forth in Rule 61G4-17.002.
In accordance with Rule 61G4-17.001, Florida Administrative Code, the following guidelines shall be used in disciplinary cases:
(5) 489.129(l)(e): Assisting unlicensed person to evade provision of Chapter 489. First violation,
$500 to $2,500 fine; repeat violation, $2,500 to
$5,000 fine and/or probation, suspension, or revocation.
* * *
(8) 489.129(l)(h): Mismanagement or misconduct causing financial harm to the customer. First violation, $750 to $1,500 fine and/or probation; repeat violation, $1,500 to $5,000 fine and/or probation, suspension, or revocation.
* * *
(12) 489.129(l)(m): Gross negligence, in- competence, and/or misconduct, fraud or deceit.
Causing no monetary or other harm to licensee's customer, and no physical harm to any person.
First violation, $250 to $750 fine; repeat violation,
$1000 to $5000 fine and 3 to 9 month suspension.
Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1,500 fine, repeat violation,
$1,000 to $5,000 fine and suspension or revocation.
In addition, Rule 61G4-17.002, Florida Administrative Code, provides that:
Circumstances which may be considered for the pur- poses of mitigation or aggravation of penalty shall include, but are not limited to the following: (1) Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the
time the penalty is assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law). (2) Actual job site violations of building codes, or condi- tions exhibiting gross negligence, incompetence,
or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed. (3) The severity of the offense. (4) The danger to the public. (5) The number of repetitions of offenses. (6) The number of com- plaints filed against the licensee. (7) The length of time the licensee has practiced. (8) The actual damage, physical or otherwise, to the licensee's customer. (9) The deterrent effect of the penalty imposed. (10) The effect of the penalty upon the licensee's livelihood. (11) Any efforts at rehabilitation. (12) Any other mitigating or aggravating circumstances.
Furthermore, Rule 61G4-17.003, Florida Administrative Code, reads as follows:
As used in this Rule, a repeat violation is any violation on which disciplinary action is
being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case;
and said definition is to apply (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and
(ii) regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.
The penalty given in the above list for repeat violations, is intended to apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.
Rule 61G4-17.001(20), Florida Administrative Code, provides that: For any violation occurring after October, 1988,
the Board may order the Contractor to make resti- tution in the amount of financial loss suffered by the consumer. Such restitution may be ordered in addition to the penalties provided by these guidelines without demonstration of aggravating factors set forth in Rule 61G4-17.002, and to the
extent that such order does not contravene federal bankruptcy law.
The Administrative Complaint in this case reads as follows with regard to the penalty sought:
WHEREFORE, Petitioner respectfully requests the Construction Industry Licensing Board enter an Order imposing one or more of the following
penalties: revocation or suspension of Respon- dent's license, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate.
Noticeably absent from the language quoted immediately above is any reference to an assessment of costs or an assessment of reimbursement to the customer. In view of cases such as Williams v. Turlington, 498 So.2d 468 (Fla. 3d DCA 1986), the failure to notify the Respondent that such assessments were being sought precludes the inclusion of such assessments as part of the remedy in this proceeding.
On the basis of all the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect:
Concluding that the Respondent is guilty of the violations charged in all three counts of the Administrative Complaint; and
Imposing the following penalties for the violations alleged in Counts I and II of the Administrative Complaint: (a) administrative fines totaling Ten Thousand dollars ($10,000.00) (a $5,000.00 fine for each of the two counts); and
(b) revocation of the Respondent's license.
DONE AND ENTERED this 26th day of April 1995 in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1995
COPIES FURNISHED:
Charles F. Tunnicliff, Esquire Senior Attorney
Department of Business and Professional Regulation
Suite 60
1940 North Monroe Street Tallahassee, FL 32399-0792
Mr. Gonzalo Ardavin
6120 East Territorial Avenue Tucson, Arizona 85718
Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300
Jacksonville, Florida 32211-7467
Linda Goodgame, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Sep. 22, 1995 | Final Order filed. |
| Apr. 26, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 01/25/95. |
| Mar. 09, 1995 | (Mimi Molina) Affidavit filed. |
| Mar. 06, 1995 | Petitioner`s Proposed Recommended Order filed. |
| Feb. 15, 1995 | Memorandum to Counsel of all parties from MMP sent out. (parties are allowed until 3/6/95 to serve respective proposed recommended orders) |
| Feb. 13, 1995 | Hearing Transcript (1 volume only) filed. |
| Feb. 06, 1995 | Letter to hearing officer from Diane Snell Perera re: Late filed exhibits filed. |
| Jan. 25, 1995 | CASE STATUS: Hearing Held. |
| Jan. 19, 1995 | (Petitioner) Notice of Taking Deposition filed. |
| Jan. 18, 1995 | Order Adjusting Schedule for Final Hearing sent out. (hearing set for 1/25/95; 10:30am; Miami) |
| Jan. 17, 1995 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 07, 1994 | Order Rescheduling Final Hearing sent out. (hearing rescheduled for January 24 and 25, 1995; 10:15am; Miami) |
| Sep. 28, 1994 | Letter to LMR from Leon Biegalski (re: Notice of Change of Address) filed. |
| Jul. 14, 1994 | (Petitioner) Amended Motion for Formal Hearing w/Exhibit-A filed. |
| Jul. 07, 1994 | (Petitioner) Motion for Formal Hearing filed. |
| May 25, 1994 | (Petitioner) Motion for Formal Hearing filed. |
| Apr. 07, 1994 | Order Cancelling Hearing and Placing Case in Abeyance sent out. (Parties to file status report by 7/8/94) |
| Mar. 24, 1994 | (Petitioner) Motion for Abeyance filed. |
| Mar. 09, 1994 | Order sent out (Motion for Leave to Withdraw as attorney for Respondent granted; hearing set for 4/27/94; 9:30am; Miami) |
| Mar. 07, 1994 | (Respondent) Motion for Leave to Withdraw filed. |
| Jan. 20, 1994 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 4/27/94; 9:30am; Miami) |
| Jan. 19, 1994 | Joint Motion to Continue filed. |
| Aug. 31, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 1/20/94; 9:30am; Miami) |
| Aug. 23, 1993 | Respondent`s Motion to Continue Final Hearing filed. |
| Aug. 10, 1993 | (Respondent) Notice of Service of Respondent`s First Set of Interrogatories to Petitioner; Respondent`s First Request for Production filed. |
| Jul. 20, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 9/24/93; 9:30am; Miami) |
| Jul. 13, 1993 | (Petitioner) Motion to Continue filed. |
| Jun. 02, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 8/27/93; 9:30am; Miami) |
| May 28, 1993 | Respondent`s Second Request for Continuance filed. |
| Apr. 16, 1993 | (Respondent) Notice of Taking Deposition filed. |
| Apr. 07, 1993 | Order of Prehearing Instructions sent out. |
| Apr. 07, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 7-15-93; 9:30am; Miami) |
| Apr. 06, 1993 | Respondent`s First Motion for Continuance; Respondent`s Response to Petitioner`s Request for Admissions w/cover ltr filed. |
| Apr. 05, 1993 | Respondent`s Response to Petitioner`s Request for Production filed. |
| Mar. 30, 1993 | (Respondent) Notice of Appearance filed. |
| Feb. 09, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 5-7-93; 9:30am; Miami) |
| Feb. 04, 1993 | (Petitioner) Motion for Continuance filed. |
| Dec. 17, 1992 | (Petitioner) Notice of Service of Admissions and Request for Production filed. |
| Nov. 30, 1992 | Notice of Hearing sent out. (hearing set for 2/10/93; 9:30am; Miami) |
| Nov. 10, 1992 | (Petitioner) Response to Initial Order filed. |
| Nov. 02, 1992 | Initial Order issued. |
| Oct. 23, 1992 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 24, 1995 | Agency Final Order | |
| Apr. 26, 1995 | Recommended Order | Evidence establishes violations of 489.129(1)(e), (h) & (m); includes discussion of several penalty issues. |
