STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5001

)

ROBERT GARY KINNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 6, 1997, a formal administrative hearing was held in this case by televideo before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings. (The Administrative Law Judge and some of the hearing participants were in a specially-equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Tampa, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: John L. Chaves, Senior Attorney

Department of Business and Professional Regulation

Division of Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2212

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent for alleged violation of Section 489.129(1)(n) and (r), Fla. Stat. (1995).

PRELIMINARY STATEMENT

On October 17, 1995, the Petitioner, the Department of Business and Professional Regulation, filed an Administrative Complaint, DBPR Case No. 95-04600, alleging that the Respondent, Robert Gary Kinney, violated Section 489.129(1)(r), Fla. Stat. (1995), by failing to satisfy a civil judgment obtained against him relating to his practice of contracting within a reasonable time. On August 23, 1996, the Respondent disputed the charges and requested formal administrative proceedings. (The reason for the delay is not clear from the record, but the Respondent’s last known address at the time of the Administrative Complaint was in Melbourne, Florida, whereas his address on and after August 23, 1996, has been in Aptos, California.)

On October 23, 1996, the Petitioner referred the matter to the Division of Administrative Hearings (DOAH), where it was given DOAH Case No. 96-5001 and scheduled for final hearing on February 6, 1996. Final hearing was by televideo connection between Tampa and Tallahassee, Florida.

Neither the Respondent nor anyone else appeared at final hearing on the Respondent’s behalf. The Petitioner called one witness and had the following exhibits introduced in evidence:

Petitioner’s Composite Exhibit A and Petitioner’s Exhibits 1 through 3.

The Petitioner ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on February 11, 1997, but counsel for the Petitioner did not receive the copy he ordered until February 18 or 19, 1997, and the Petitioner’s Motion for Extension of Time to File Proposed Recommended Order until March 1, 1997, was granted.

The Petitioner timely filed its Proposed Recommended Order on March 3, 1997 (March 1 being a Saturday). The Respondent did not file any proposed recommended order.

FINDINGS OF FACT

1. The Respondent, Robert Gary Kinney, holds General Contractor License No. CG C040517, issued by the Construction Industry Licensing Board on August 18, 1987. For almost the entire period of his licensure, the Respondent also qualified his company, Florida Construction and Development Inc. of Melbourne, to do business in Florida as a general contractor. (The Respondent was the sole owner, president and vice-president of the company.) Effective September 1, 1996, the Respondent’s license was placed on a delinquent status for non-renewal and is considered invalid.

2. On or about May 20, 1992, the Respondent executed a

   personal guaranty in order for his company to obtain credit from Cox Lumber Co. Subsequently, his company purchased building materials from Cox Lumber, using credit, and incorporated the building materials into one of his company’s residential construction projects. The Respondent and his company paid only a portion of the purchase price, and January 23, 1994, Cox Lumber obtained a Second Amended Final Judgment against the Respondent under the personal guaranty in the amount of $8,829.56, together with pre-judgment interest in the amount of $1,176 and post judgment-interest until satisfied.

3. The Respondent has made no payments on the Second Amended Final Judgment since its entry.

4. In his request for formal administrative proceedings, the Respondent defended on the alleged grounds: (1) he had no prior knowledge of the purchase from Cox Lumber; (2) he did not request or submit a written credit application; and (3) he had no prior knowledge of the complaint or judgment. Based on the evidence, those alleged grounds are false.

5. Based on the evidence, there is no basis to mitigate penalties recommended in the Construction Industry Licensing Board’s penalty guidelines. To the contrary, the Respondent’s cavalier attitude and false defenses are grounds to aggravate the recommended penalties.

   CONCLUSIONS OF LAW

   
   

6. Section 489.129(1)(r), Fla. Stat. (1995), authorizes the Construction Industry Licensing Board to discipline a licensee for:

   Failing to satisfy within a reasonable time, the terms of a civil judgment obtained against the licensee, or the business organization qualified by the licensee, relating to the practice of the licensee’s profession.

   
   

   This statute has been in effect since 1993.

   
   

7. The evidence was clear that the Respondent is guilty of violating Section 489.129(1)(r), Fla. Stat. (1995). (F.A.C. Rule 61G4-17.001(23) (10/31/96) defines a “reasonable time,” for purposes of Section 489.129(1)(r), Fla. Stat. (1995), to mean 90 days.)

8. The Administrative Complaint also alleged a violation of Section 489.129(1)(n), Fla. Stat. (1995), for “[c]ommitting incompetency or misconduct in the practice of contracting.” But this charge is based exclusively on the Respondent’s failure to pay the civil judgment and cannot be viewed as an additional charge.

9. Section 489.129(1), Fla. Stat. (1995), authorizes the Board to: reprimand the Respondent; place him on probation; revoke or suspend his license; impose an administrative fine not to exceed $5,000 per violation; require continuing education; and assess costs associated with investigation and prosecution. Section 455.227(3), Fla. Stat. (1995), and F.A.C. Rule 61G4-

17.001(19) (1/19/95) also authorize the Board to assess costs of investigation and prosecution, in addition to other penalties.

10. F.A.C. Rule 61G4-17.001(18) (10/31/96) recommends a “$500 to $1000 fine and/or proof of satisfaction of civil judgment” for the first violation of Section 489.129(1)(r), Fla. Stat. (1995). Earlier versions of this rule omitted specific reference to Section 489.129(1)(r), but provided for a similar penalty range ($250 to $1,000 for the first violation) for similar violations. See F.A.C. Rule 61G4-17.001(14)(c) and (21) (1/19/95); and F.A.C. Rule 61G4-17.001(14)(d)3 and (21) (1/5/96).

11. F.A.C. Rule 61G4-17.002 provides for increasing the penalty for “aggravating” circumstances. (All versions of the rules have included such a provision.) In this case, the Respondent’s cavalier attitude and false defenses are aggravating circumstances that justify revoking the Respondent’s license.

RECOMMENDATION

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

RECOMMENDED that the Construction Industry Licensing Board enter a final order: (1) finding the Respondent guilty of violating Section 489.129(1)(r), Fla. Stat. (1995); (2) requiring that he satisfy the Second Amended Final Judgment against him;

(3) imposing a $1,000 fine; and (4) revoking his license.

RECOMMENDED this 28th day of March, 1997, at Tallahassee, Florida.

COPIES FURNISHED:

John L. Chaves Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax FILING (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997.

Tallahassee, Florida 32399-0792

Robert Gary Kinney 920 Mesa Grande Road

Aptos, California 95003

Rodney Hurst, Executive Director Construction Industry Licensing Board 7060 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-005001

Orders for Case No: 96-005001