STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 97-1105

)

RONALD MUSTARI, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 13, 1997, a formal administrative hearing in this case was held by telephone conference between Tallahassee, Bradenton, and Sarasota, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul F. Kirsch, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Robert E. Messick, Esquire

Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237 STATEMENT OF THE ISSUE

Whether Respondent, Ronald Mustari, violated Section 489.129(1)(r), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice contracting.

PRELIMINARY STATEMENT

On or about December 31, 1996, Petitioner, Department of Business and Professional Regulation (Department), filed an Administrative Complaint against Respondent, Ronald Mustari, alleging in two counts, that he violated Section 489.129(1), Florida Statutes. Count One of the Administrative Complaint alleges that Respondent violated Section 489.129(1)(r), Florida Statutes, by failing to satisfy, within a reasonable time, the terms of a civil judgment obtained against him or the business organization for which he was qualifying agent. Count Two alleges that Respondent was incompetent or guilty of misconduct in the practice of contracting in violation of Section 489.129(1)(n), Florida Statutes.

Respondent denied the allegations contained in the Administrative Complaint and requested a formal hearing. By letter dated March 10, 1997, the Department of Business and Professional Regulation referred the matter to the Division of Administrative Hearings to conduct a formal proceeding.

At commencement of the hearing, Petitioner withdrew Count Two of the Administrative Complaint. Therefore, only the allegation contained in Count One of the Complaint was at issue during this proceeding.

At hearing, Petitioner presented the testimony of one witness, William Long, the president of Anchor Air Conditioning.

Petitioner also offered and had admitted into evidence four exhibits. At Petitioner's request, official recognition was taken of the statutes and rules governing the practice of contracting in Florida that were in effect at the times material to this cause. Respondent testified on his own behalf and offered and had admitted into evidence one exhibit.

A transcript of the proceeding was filed on June 18, 1997. At the request of the parties, the time set for filing proposed recommended orders was more than ten days after the transcript was filed. Petitioner timely filed proposed findings of fact and conclusions of law under the extended time frame. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Ronald Mustari, was a certified residential contractor, having been issued license number CR C036684 by the Florida Construction Industry Licensing Board in 1986.

2. On or about April 29, 1991, Respondent was licensed as the qualifying agent for Whitehall Development Corporation (Whitehall Development), and served in this capacity at all times material to this proceeding. As the qualifying agent, Respondent was responsible for all of the contracting activities of Whitehall Development. Furthermore, at all times pertinent hereto, Respondent was president of Whitehall Development.

3. On or about October 9, 1989, Whitehall Development

   entered into a subcontract agreement with Anchor Air Conditioning, Inc. (Anchor Air Conditioning), whereby Anchor Air Conditioning would provide services for Whitehall Development.

4. Subsequently, a dispute arose between Anchor Air Conditioning and Whitehall Development regarding the subcontract agreement. As a result thereof, in 1993, Anchor Air Conditioning filed a civil complaint against Whitehall Development in the Manatee County Circuit Court, Case No. CA-93-4210. The complaint alleged that Whitehall Development owed money to Anchor Air Conditioning pursuant to the terms of the subcontract agreement. Whitehall Development contested liability and responded by filing counterclaims against Anchor Air Conditioning.

5. After contesting the issue of liability for more than two years and incurring more than $20,000 in attorney fees, Respondent concluded that continuing to litigate this matter was not a viable option given Whitehall Development's insolvency at that time. Furthermore, Respondent determined that it would be futile for Whitehall Development to pursue its counterclaims in the civil matter because Anchor Air Conditioning was insolvent.

6. On May 9, 1996, the Circuit Court for the Twelfth Judicial Circuit in and for Manatee County, Florida, entered a Final Judgment in Case Number CA-93-4210, in favor of Anchor Air Conditioning against Whitehall Development in the amount of

   $18,118. The Final Judgment was the result of a negotiated, stipulated Settlement Agreement entered into between Whitehall

   Development and Anchor Air Conditioning.

   
   

7. Currently, Whitehall Development has no funds or assets and is no longer doing business.

8. In 1992, and prior to Anchor Air Conditioning's filing the complaint against Whitehall Development, the Internal Revenue Service placed a lien on all property and rights to property

   owed to Anchor Air Conditioning. The lien was to cover outstanding assessments owed by Anchor Air Conditioning to the Department of Treasury-Internal Revenue Service for the tax periods ending December 31, 1988; December 31, 1989; and June 30,

   1990.

   
   

9. In September or October 1992, Whitehall Development received a copy of Notice of Levy dated September 25, 1992. According to the Notice of Levy, Whitehall Development was required to pay any money it owed to Anchor Air Conditioning to the Internal Revenue Service. As of June 13, 1997, this Notice of Levy remained in effect.

10. As of the date of the final hearing in this matter, Whitehall Development has not satisfied the Final Judgment in Case No. CA-93-4210. Whitehall Development has failed to pay the funds due and owing to Anchor Air Conditioning pursuant to the Final Judgment to the Internal Revenue Service.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this

    proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Respondent is a certified residential contractor in the State of Florida, having been issued license number CR CO36684 by the Florida Construction Industry Licensing Board pursuant to Chapter 489, Part I, Florida Statutes.

13. The Florida Construction Industry Licensing Board is empowered to revoke, suspend, or otherwise discipline the license of a contractor who is found guilty of any of the offenses enumerated in Section 489.129(1), Florida Statutes.

14. In the instant case, Petitioner alleges that Respondent committed the offense enumerated in Section 489.129(1)(r), Florida Statutes, which provides in pertinent part the following:

    1. The board may take any of the following action against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer, 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, financial officer, or business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s.489.1195 is found guilty of any of the following acts:

       * * *

       
       

       (r) 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.

15. In order to prevail in a disciplinary licensing proceeding such as this, Petitioner must prove the alleged violation of Section 489.129(1), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. It has been established and is undisputed that Respondent was the qualifying agent for Whitehall Development at all times relevant to this proceeding. As qualifying agent for Whitehall Development, Respondent was 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." Section 489.1195(1)(a), Florida Statutes.

17. Petitioner has proved by clear and convincing evidence that Respondent violated Section 489.129(1)(r), Florida Statutes, by failing to satisfy within a reasonable time the terms of a civil judgment against the business organization qualified by the licensee relating to the practice of contracting.

18. At hearing, it was established by clear and convincing evidence that on May 9, 1996, a Final Judgment in the amount of

    $18,118 was entered against Whitehall Development in favor of Anchor Air Conditioning. Furthermore, it was established by clear and convincing evidence that the civil judgment entered against Whitehall Development was related to the practice of contracting.

19. Petitioner established and Respondent admitted that on May 9, 1996, the date the Final Judgment was entered, Respondent was the licensed qualifier and president of Whitehall Development. Moreover, Petitioner established and it was undisputed that the Final Judgment has not been satisfied. According to Respondent, although more than one year has elapsed since the Final Judgment was entered, no payments have been made by either Respondent or Whitehall Development.

20. During the time period pertinent to this case, there was no rule in place which defined "reasonable time" for purposes of Section 489.129(1)(r), Florida Statutes. However, a subsequently adopted rule defines "reasonable time" as "ninety days following the entry of a civil judgment that is not appealed." Rule 61G4-17.001(23), Florida Statutes. While not controlling is this matter, the rule is instructive and evidences the intent of Petitioner. Based on that rule, a final judgment against a licensed contractor or the company for which he is qualifying agent and related to the practice of contracting should be satisfied in an expeditious manner.

21. Respondent has failed to satisfy the final judgment in a reasonable time as required by Section 489.129(1)(r), Florida Statutes. In the instant case, Respondent has had more than thirteen months to satisfy the final judgment, but has made no effort to do so. Respondent offered no explanation as to why such payments have not yet been made and expressed no intent to

satisfy the judgment in the future. Rather, Respondent seems to argue that because the final judgment was based on a stipulation by the parties, it is somehow less binding. Respondent asserts that he entered into the agreement because of the legal costs associated with continuing to litigate the case involving Anchor Air Conditioning. Nevertheless, the fact remains that a final judgment was entered against Respondent and he remains liable for the $18,118 judgment which is based on a stipulation to which Respondent agreed.

RECOMMENDATION

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

RECOMMENDED that the Construction Industry Licensing Board enter a final order finding that Respondent violated Section 489.129(1)(r), Florida Statutes; imposing a fine of $1,000; placing his license to practice contracting on probation, under such terms and conditions as prescribed by the Construction Industry Licensing Board; and assessing the costs associated with the investigation and prosecution of this case.

DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997.

COPIES FURNISHED:

Paul F. Kirsch, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Robert E. Messick, Esquire Icard, Merrill, Cullis, Timm,

Furen and Ginsburg, P.A. 2033 Main Street, Suite 600

Sarasota, Florida 34237

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

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: 97-001105

Orders for Case No: 97-001105