STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 97-0997

)

ROBERT E. POINDEXTER, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on May 23, 1997, in Melbourne, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John L. Chaves, Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Robert E. Poindexter, pro se

2545 Burns Avenue

Melbourne, Florida 32935

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Section 489.129(1)(r), Florida Statutes (1995), 1/ by failing to satisfy a civil judgment relating to Respondent's contractor's license and, if so, what, if any, penalty should be imposed in accordance with Florida Administrative Rule 61G4-17.001. 2/

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on December 24, 1996. Respondent timely requested a administrative hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted 10 exhibits for admission in evidence.

Respondent testified in his own behalf and submitted five exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed with the undersigned on June 20, 1997. Petitioner timely filed its proposed recommended order ("PRO") on June 30, 1997.

Respondent timely filed his PRO on July 7, 1997.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating contractors in the state. Respondent is licensed as a contractor pursuant to license number CR C056639.

2. Respondent has been a licensed contractor since

   January 22, 1993. Respondent is the primary qualifying agent for Accurate Development, Inc. ("Accurate") within the meaning of Section 489.1195(1)(a).

3. In April 1995, Respondent entered into two oral agreements with Mr. Randall Bischoff, d/b/a Custom Glass and Mirror ("Custom"). Custom was to supply glass, mirrors, shelving, shower enclosures, and labor as subcontractor for Accurate at two construction sites on which Respondent was

   constructing new residential homes. Respondent and Accurate agreed to pay for all materials and labor.

4. Mr. Bischoff provided all of the materials and labor required by the terms of the contract. Neither Respondent nor Accurate ever paid for the materials or labor.

5. Mr. Bischoff spoke with Respondent on several occasions in unsuccessful attempts to obtain payment of the sums owed to him and to resolve the matter amicably. Mr. Bischoff then filed mechanic liens against the real property on which he performed work for Respondent. At their own expense, the home owners attempted to remove the liens without paying Mr. Bischoff.

6. After protracted litigation, Mr. Bischoff agreed to remove the liens. Prior to their removal, the liens clouded the titles of the homeowners.

7. On June 8, 1995, Mr. Bischoff sued Respondent and Accurate in Brevard County Court for the money owed to him. On July 10, 1995, the court issued two final judgments in favor of Mr. Bischoff for $2,381.41 and $1,297.23 for each of the two residences on which Mr. Bischoff performed as Respondent's subcontractor. Neither Respondent nor Accurate ever satisfied all, or part, of either judgment.

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

9. Petitioner has the burden of proof in this proceeding.

   Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty.

   Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner satisfied its burden of proof.

10. Section 489.129(1)(r), in relevant part, authorizes appropriate penalties to be imposed against the license of any contractor who fails

    . . . to satisfy within a reasonable time, (sic) 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.

11. Respondent violated the provisions of Section 489.129(1)(r). Respondent is a licensed contractor. On

    July 10, 1995, a civil judgment was obtained against Respondent and Accurate, the business organization qualified by Respondent.

    
    

12. The judgments related to the practice of Respondent as a licensed contractor. Section 489.1195(1)(a), in relevant part, provides that Respondent, as the primary qualifying agent for Accurate, is

    . . . jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job.

13. Approximately 24 months have elapsed since two judgments were obtained against Respondent and Accurate. Rule 61G4-b17.001(23) provides that a reasonable time in which to

    satisfy a judgment is 90 days after the time for appeal. Neither Respondent nor Accurate appealed the judgments against them and neither has satisfied either judgment.

14. Rule 61G4-17.001 prescribes guidelines for imposing a penalty in this case. For the first violation of Section 489.129(1)(r), Rule 61G4-17.001(18) authorizes a fine of $500 to

    $1,000. For a repeat violation, the rule authorizes a fine of

    $1,000 to $5,000, probation, suspension, or revocation.

15. In its PRO, Petitioner seeks revocation of Respondent's license. Petitioner also seeks the imposition of a fine of

    $1,000 and assessment of the costs of investigating and prosecuting this case.

16. Rule 61G4-17.003 defines a "repeat violation" as 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. . . .

17. Respondent did not commit a repeat violation within the meaning of Rule 61G4-17.003. Petitioner presented no evidence that "the same licensee had previously had disciplinary action taken against him."

18. In the absence of a repeat violation, the maximum penalty authorized in Rule 61G4-17.001(18) is $1,000. Petitioner's rules do not authorize an assessment of costs associated with the investigation and prosecution of this case, unless there is a repeat violation.

19. Rule 61G4-17.002 lists several factors that may be considered as aggravating or mitigating circumstances in determining an appropriate penalty. Those factors include monetary or other damage to Respondent's customers, actual job- site violations, the severity of the offense, the danger to the public, the number of repetitions of the offenses, the number of complaints filed against the licensee, actual damage to the customer, the deterrent effect of any penalty imposed, and the effect of the penalty on the licensee's livelihood.

20. There are several aggravating circumstances present in this case. Respondent's customers were damaged by incurring the expense of removing the liens of Mr. Bischoff from their property. The title to their property was clouded for a substantial period. There was more than one unsatisfied judgment. Respondent's actions represent a danger to the public in the form of financial harm.

21. There are several mitigating circumstances present in this case. Respondent did not commit any actual job-site violations of building codes, gross negligence, incompetence, or misconduct. Although the two judgments total more than $3,600, the amount not satisfied by Respondent is not severe as a proportion of the price of the home or in terms of the potential for financial harm to each homeowner.

22. There were only two offenses. Neither party presented any evidence that the imposition of a fine from $500 to $1,000 would, or would not, have a deterrent effect on Respondent.

    Neither party presented any evidence of the effect that such a penalty would have on Respondent's livelihood.

23. The aggravating circumstances far outweigh the mitigating circumstances in this case. Petitioner should impose the maximum fine authorized in Petitioner's rules.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 489.129(1)(r) and imposing an administrative fine of $1,000.

DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1997.

ENDNOTES

1/ All references to chapters and sections are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.

COPIES FURNISHED:

Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

John L. Chaves, Senior Attorney Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Robert E. Poindexter, pro se 2545 Burns Avenue

Melbourne, Florida 32935

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: 97-000997

Orders for Case No: 97-000997