STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-1477

)

TODD J. JONAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on January 14, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Todd J. Jonas, pro se

555 Northeast 15th Street, Suite 25C Miami, Florida 33132

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 21, 1996, Petitioner issued a three-count Administrative Complaint against Respondent. The complaint read, in pertinent part, as follows:

2. Respondent is and has been at all times material hereto a Certified General Contractor in the State of Florida, having been issued license number CG C014823.

* * *

1. At all times material hereto Respondent was the licensed qualifier for Mello Concrete Services, Inc. (hereinafter "Contractor") and therefore responsible for the acts, omissions, and financial responsibility of the business as it related to contracting.

   
   

2. On June 23, 1993, Mr. Jorge A. Machado, (hereinafter "Machado") President of MACTEC Construction, Inc. subcontracted with Respondent to plaster walls and ceilings in a home located at 1710 Tigertail Avenue, Miami, FL 33133.

   
   

3. Machado and Respondent agreed to and signed a time and materials contract.

   
   

4. Pursuant to said contract, Machado supplied labor and materials to the project in accordance with the contract.

   
   

5. On August 9, 1993, Respondent issued a check to Machado in the amount of $9,000.00 as payment for work completed under the contract. This check was unsatisfied due to insufficient funds.

   
   

6. On August 16, 1993, Respondent issued a check to Machado in the amount of $9,000.00 in replacement of the above check that was returned because of insufficient funds. Respondent then issued a stop payment order on this replacement check to avoid collection

   by Machado.

   
   

7. On August 19, 1993, Respondent issued a check to Machado in the amount of $3,500.00 as payment for work completed under the terms of the contract. Respondent then issued a stop payment order on this check to avoid collection by Machado.

   
   

8. Section 455.227(1)(a) Florida Statutes (1993), provides that "the board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that the licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession.

   
   

9. On or about September 17, 1993, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Machado filed a civil suit related to the practice of contracting against Respondent.

   
   

10. On April 14, 1994, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, a final judgment was awarded in the amount of $18,943.96 against Respondent.

    
    

11. Respondent failed to satisfy said judgment within a reasonable period of time.

    
    

    COUNT I

    
    

12. Petitioner realleges and incorporates the allegations set forth in Paragraphs 1 through 14 as though fully stated herein.

    
    

13. Based on the foregoing, the Respondent violated Section 489.129(1)(c), Florida Statutes (1993), by violating any provision of chapter 455, by violating Section 455.227(1)(a), Florida Statutes (1993).

    
    

    COUNT II

    
    

14. Petitioner realleges and incorporates the allegations set forth in Paragraphs 1

    through 14 as though fully stated herein.

    
    

15. Based on the foregoing, the Respondent violated Section 489.129(1)(r), Florida Statutes (1993), by 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.

    COUNT III

    
    

16. Petitioner realleges and incorporates the allegations set forth in Paragraphs 1 through 14 as though fully stated herein.

    
    

17. Based on the foregoing, the Respondent violated Section 489.129(1)(n), Florida Statutes (1993), by committing incompetency or misconduct in the practice of contracting.

WHEREFORE, Petitioner respectfully requests the Construction Industry Licensing Board enter an Order imposing upon the Respondent one or more of the following penalties: probation; reprimand; revocation or suspension of licensure; denial of the issuance or renewal of certification or registration; financial restitution to a consumer; imposition of an administrative fine not to exceed $5,000 per violation; require continuing education; costs associated with investigation and prosecution; impose any or all penalties delineated within Section 455.227(2), Florida Statutes, and/or any other relief that the Board is authorized to impose pursuant to Chapters 489 and 455, Florida Statutes, and/or the rules promulgated thereunder.

Respondent filed an election of rights, as well as a response to the Administrative Complaint, which disputed the factual allegations in paragraphs 5, 6, 7, 8, 9, 10, 12, and 14 of the Administrative Complaint. Consequently, the matter was referred to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

At hearing, Petitioner called W. Frank Greenleaf as a witness, and Petitioner's Exhibits 1 through 6, and 9 through 11, were received into evidence.1 Respondent testified on his own behalf, and called Ira Berg as an additional witness.

Respondent's Exhibits 1 through 12 were received into evidence.

The transcript of hearing was filed January 30, 1998, and the parties were initially accorded ten days from that date to file proposed recommended orders. However, at the request of the Respondent, and without opposition from Petitioner, the time for filing proposed recommended orders was extended until March 2, 1998. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties elected to file such proposals, and they have been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in

   particular Sections 20.165, Florida Statutes, Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto.

2. At all times material hereto, Respondent, Todd J. Jonas, was licensed by the Department as a certified general contractor, having been issued license number CG C014823, and was the qualifying agent for Mello Concrete Service, Inc. Moreover, at all such times, Respondent was licensed as a registered architect, pursuant to Chapter 481, Florida Statutes.

3. In August 1992, consequent to the forces of Hurricane Andrew, Lee and Hanna Munson suffered damage to their residence at 1710 Tigertail Avenue, Miami, Florida.

4. Subsequently, Mr. Munson employed Respondent to repair some of that damage. The scope of the repairs Respondent was to undertake was set forth in a written proposal, dated May 12, 1993, from "Todd Jay Jonas Architect" to Mr. Munson, which provided:

   1. Repair storm damaged stucco.

   2. Repair storm damaged windows.

   3. Repair storm damaged doors.

   4. Repair storm damaged shutters.

   5. Repair storm damaged cabinets.

   6. Repair storm damaged walls.

   7. Repair storm damaged interior partitions.

   8. Replace existing Tigertail wood gate with iron.

   9. Landscaping-replacing shrubs for same.

   10. Clean-up.

   11. Painting.

       
       

       (Petitioner's Exhibit 4.) According to Respondent, "Todd Jay Jonas Architect" was, at the time, a fictitious name under which

       he practiced architecture.

       
       

5. Mr. Munson apparently accepted the proposed repair list, and agreed to pay Respondent for labor and materials (the contract cost), plus 20 percent. (Respondent's Exhibit 6, page number 97.)

6. On May 19, 1993, Respondent filed an application for a building permit with the City of Miami to repair the Munson residence. The application named Respondent as the contractor and architect, and included a copy of the May 12, 1993, proposal, as the repairs that were to be made to the residence. The application was signed by Respondent as "Qualifier," and he acknowledged that: "In signing this application, I am responsible for the supervision and completion of the construction in accordance with the plans and specifications and for compliance with all federal, state, and county laws applicable."

7. The City of Miami approved Respondent's application, and on May 21, 1993, issued its Building Permit No. 93-5010807. The permit named Mello Concrete Service, Inc. (Mello Concrete), as the contractor, and Respondent as the qualifier. The approved repairs were limited to those contained on the proposal of

   May 12, 1993, which was submitted with the application.

   
   

8. Following permitting, the business Respondent had qualified, Mello Concrete, undertook needed structural and other repairs to the residence. Pertinent to this case, these repairs required the removal of a large portion of the interior plaster

   on the residence. Consequently, to repair the interior wall surfaces and ceilings, and to provide an interior plaster finish, Respondent solicited a proposal from MACTEC Construction, Inc. (MACTEC). At the time, MACTEC was apparently authorized to conduct business as a certified general contractor, license number CG C027670, and Jorge A. Machado was its president.

9. On June 23, 1993, Mr. Machado, on behalf of MACTEC, submitted the following proposal to Respondent:

   Mr. Todd J. Jonas

   Todd Jay Jonas Architects 7275 Southwest 55th Avenue Miami, FL 33143

   
   

   Re: Munson Residence

   1710 Tigertail Avenue

   Miami, FL 33133 Dear Todd:

   Pursuant to several field inspections of the property in reference, I am pleased to submit the following Proposal for your consideration.

   
   

   Due to the unique nature of the job and existing field conditions, several alternatives to structuring this bid were considered and we feel that a Time & Materials Contract would be the most effective approach.

   
   

   Please note that the scope of work which follows is based the application of "Woncote" interior plaster finish over the existing Lath and Plaster walls and celings [sic] and the installation of "Blueboard" where needed in lieu of standard joint compound and gypsum wallboard assemblies. The work described herein will require the skill of our most experienced plasters. Less costly alternatives are available which will result similar in appearance once finished, but

   which lack the quality, durability and compatibility with the materials and assemblies that compose this home.

   
   

   SCOPE OF WORK:

   
   

   • Patch and repair existing interior wall surfaces and ceilings.

     
     

   • Skim coat all wall and ceiling surfaces to a smooth uniform finish ready for paint.

   
   

   * * *

   
   

   UNIT PRICES

   
   

   Labor: 3 man crew @ $ 105.00 per hour. ESTIMATED DURATION

   Four Weeks. ( Based on 40 hr./ week.) MATERIALS

   Cost Plus Ten Percent. ( Estimated materials cost: $ 3,000.00 ).

   
   

   * * *

   
   

   PAYMENT SCHEDULE

   
   

   Payment in full of previous week's work by the following Thursday of each week. Time sheets and invoices shall be submitted to General Contractor no later than Monday of each week to allow for review and processing. . . .

   
   

   On July 8, 1993, Respondent signed the proposal, noting his acceptance of its terms; however, Respondent had apparently agreed to the proposal earlier, since MACTEC began to provide labor and materials to the residence on June 25, 1993.

10. As the work progressed, MACTEC, consistent with its agreement, submitted to Respondent an invoice, as well as a time

    and materials control sheet, on a weekly basis. The invoices read "SOLD TO: TODD JAY JONAS ARCHITECTS," and the time and materials control sheets read "CLIENT: TODD JAY JONAS ARCHITECTS." Respondent, periodically, remitted payment to MACTEC on the account, and nothing unusual occurred with regard to their financial relationship until early August 1993.

11. On August 9, 1993, Respondent tendered to MACTEC a check in the sum of $9,000 for payment on account of labor and materials furnished through August 9, 1993.2 MACTEC deposited the check to its account at SunBank Miami on August 10, 1993; however, when presented to the payor's bank, payment was refused because of insufficient funds.

12. In explanation, Respondent contends that at the time the check was issued there were sufficient funds in the account to cover the check; however, unbeknownst to him, on the day the MACTEC check was presented for payment, a check previously deposited to the account was returned as uncollectable. Consequently, according to Respondent, the bank debited the account, reducing the available funds to less than $9,000, and refused payment. (Petitioner's Exhibit 10 and Respondent's Exhibit 8.)

13. Respondent's bank statement (Respondent's Exhibit 8) facially supports his contention that at the time the check was written there were sufficient funds in the account to honor the check. However, bank statements are maintained on an accrual

    basis, and the balance shown is not, as evidenced by the returned item in this case, representative of cleared or available funds. Notwithstanding, no evil purpose or other impropriety has been shown or can be attached to Respondent's conduct with regard to this transaction.

14. On August 16, 1993, Respondent gave Mr. Machado a check for $9,000 as a replacement for the check that was returned for insufficient funds, and on August 19, 1993, a check for $3,500 as payment on account for additional labor and materials furnished to the residence. At the time of issuance, Respondent advised Mr. Machado to hold the checks until he had clear or available funds in the account. Mr. Machado abided Respondent's advice until August 30, 1993, when the checks were deposited to MACTEC's account at SunBank Miami. When presented to the payor's bank, payment was refused because Respondent had entered a stop payment order.

15. According to Respondent, Mr. Munson complained regarding the quality of MACTEC's work, as well as theft or damage to property by MACTEC employees, and directed that he make no further payments to MACTEC. Based on this direction from the client, Respondent issued the stop payment order. Under the circumstances, no evil purpose or other impropriety was shown with regard to Respondent's entry of the stop payment orders.

16. While Respondent may have felt justified, based on his client's instructions, to stop payment on the checks he tendered

    to Mr. Machado, Mr. Machado was not dissuaded from seeking redress.

17. On or about September 20, 1993, in the Circuit Court, Dade County, Florida, MACTEC sued Respondent, Todd J. Jonas, individually. The complaint sought judgment against Respondent in the amount of $17,685.66, plus pre-judgment interest and costs, based on the following allegations:

    GENERAL ALLEGATIONS

    
    

    1. At all times material hereto Plaintiff MACTEC CONSTRUCTION, INC. (hereinafter "MACTEC") is and has been a corporation incorporated under the laws of the State of Florida and authorized to do business and doing business in Dade County, Florida.

       
       

    2. At all times material hereto, Defendant TODD J. JONAS is and has been an individual sui juris residing and doing business in Dade County, Florida.

       
       

       COUNT I

       
       

    3. This is an action for breach of contract within the jurisdiction of this court.

       
       

    4. The allegations of Paragraphs 1 and 2 above are realleged and incorporated by reference in full herein.

       
       

    5. In June, 1993, MACTEC and TODD J. JONAS entered into a contract pursuant to which MACTEC was to perform construction work on a construction project known as the Munson residence, located at 1710 Tigertail Avenue, Miami, Florida (hereinafter referred to as "Project"). A copy of said contract between Plaintiff and Defendant TODD J. JONAS is attached hereto as Exhibit "A" and incorporated by reference in full herein.3

    6. Pursuant to said contract, MACTEC

       supplied labor and materials to the project in accordance with the contract (Exhibit "A") hereto.

       
       

    7. MACTEC has substantially performed its obligations pursuant to the contract attached hereto as Exhibit "A".

       
       

    8. Defendant JONAS is in material breach of his contract with MACTEC (Exhibit "A" hereto) inasmuch as he has failed and refused to pay to MACTEC the sum of $17,685.66 due and owing to MACTEC for labor and materials supplied to the subject project pursuant to said contract.

       
       

    9. All conditions precedent to the maintenance of this action have occurred, have been performed, or have been waived.

       
       

       * * * COUNT II

    10. This is an action on open account within the jurisdiction of this court.

        
        

    11. The allegations of Paragraphs 1, 2 and

        5 set forth above are realleged and incorporated by reference herein.

        
        

    12. MACTEC and TODD J. JONAS had business transactions between them, and TODD J. JONAS has failed to pay MACTEC for labor performed and materials furnished.

        
        

    13. TODD J. JONAS owes MACTEC the sum of

    $17,685.66 plus pre-judgment interest since August 19, 1993 per the attached accounts (Exhibit "B" hereto).

    
    

18. Following a three-day trial (April 4, 5, and 6, 1994), the court entered a final judgment for MACTEC and against Respondent. That judgment, dated April 14, 1994, provided that MACTEC recover from Respondent damages of $17,585.66,4 as well as pre-judgment interest of $1,358.30, and reserved jurisdiction to

    tax costs and attorney's fees. Subsequently, a final judgment was entered for costs of $1,000 and a final judgment for attorney's fees of $7,787.50.

19. At some time between the date of judgment (April 14, 1994) and August 8, 1994, Respondent paid $2,000 in partial satisfaction of the judgment. Other than that payment, there has been no further payment toward satisfaction of the judgment, and no other arrangement for satisfaction of the judgment, by a mutually agreeable payment plan or otherwise, has been made.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (1997).

21. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The 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). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative

    complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation,

    458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in determining whether Respondent violated the provisions of section 489.129(1), as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

22. Pertinent to this case, Section 489.129, Florida Statutes (1993), provides:

    (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 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, financially responsible 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:

    
    

    * * *

    (c) Violating any provision of chapter 455.

    
    

    * * *

    
    

    (n) Committing incompetency or misconduct in the practice of contracting.

    
    

    * * *

    
    

    (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.

    
    

23. With regard to the alleged violation of subsection 489.129(1)(c), "[v]iolating any provision of chapter 455," the Department contends Respondent is guilty of violating Subsection 455.227(1)(a), Florida Statutes. Pertinent to this case, the provisions of subsection 455.227(1) provide:

    1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

       1. The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. . . .

24. Addressing first the charge in Count I of the Administrative Complaint, that Respondent's conduct violated the provisions of subsection 455.227(1)(a), in that he made "misleading, deceptive, untrue, or fraudulent representations in the practice of his profession," and therefore violated subsection 489.129(1)(c), it must be concluded that the proof failed to support any such charge.

25. In reaching this conclusion, it is first observed that Webster's New Collegiate Dictionary (1974), defines5 "fraudulent" as "characterized by, based on, or done by fraud: DECEITFUL." "Fraud" is defined as:

    . . . a. DECEIT, TRICKERY; specif:

    intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right b: an act of deceiving or misrepresenting.

    
    

    Accord, Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95, 97 (Fla. 1st DCA 1974) (statutory provision prohibiting physician from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue"; "[t]o constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally)").

    Accord, Munch v. Department of Professional Regulation,

    
    

    592 So. 2d 1136 (Fla. 1st DCA 1992), and Walker v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998). Here, the proof failed to demonstrate any untruth, much less an "intentional perversion of truth." Consequently, no violation of subsection 455.227(1)(a) or 489.129(b)(c), was shown.

26. Turning next to the charge in Count II of the Administrative Complaint, that Respondent violated the provisions of subsection 489.129(1)(r), by "[f]ailure to satisfy within a

    reasonable time, the terms of a civil judgment obtained against the licensee . . . relating to the practice of the licensee's profession," it must be concluded that the proof supports such charge.

27. In reaching such conclusion, Respondent's contention that the MACTEC agreement was with Respondent individually, as architect, and not as the general contractor, through Mello Concrete, has not been overlooked.6 It is not, however, the manner in which Respondent elected to structure his arrangement or contract with MACTEC that is dispositive of the charge but, rather, whether the basis of the civil judgment obtained against Respondent related to the practice of contracting.7 Here, it cannot be subject to serious debate that the MACTEC contract was an integral part of Respondent's agreement to repair the Munson residence. Consequently, a civil judgment based on Respondent's breach of that agreement bears a logical or causal connection with the practice of contracting and, therefore, by failing to satisfy the judgment within a reasonable time, Respondent has been shown to have violated subsection 489.129(l)(r). See, e.g., Elmariah v. Department of Professional Regulation, 574 So. 2d 164 (Fla. 1st DCA 1990).

28. Finally, with regard to the charge in Count III of the Administrative Complaint, that Respondent violated subsection 489.129(1)(n) by "committing incompetency or misconduct in the practice of contracting," it must also be concluded that the

    proof supports such charge. This conclusion is reached, however, solely on the basis of Rule 61G4-17.001(14)(b), Florida Administrative Code, which provides that "[m]isconduct or incompetency in the practice of contracting as set forth in Section 489.129(1)(n), Florida Statutes. . . [includes the] . . . [v]iolation of any provision of . . . Chapter 489, Part I, F.S." Under the provisions of the Rule, Respondent's violation of subsection 489.129(1)(r) is also transformed into a violation of subsection 489.129(1)(n). However, apart from the result dictated by the Rule, the record is devoid of any proof that any act or failure to act on Respondent's part failed to conform with existing law or prevailing standards of acceptable practice in his profession. See Gentry v. Department of Professional and Occupational Regulations, supra. Accordingly, since the subsection 489.129(1)(n) violation is duplicative of the subsection 489.129(1)(r) violation, it does not support a separate penalty from that assessed for the substantive violation (subsection 489.129(1)(r)).

29. Having reached the foregoing conclusions, it remains to resolve the appropriate penalty that should be imposed.

    Pertinent to this issue, Rule 61G4-17.001, Florida Administrative Code, provides, absent aggravating or mitigating circumstances, the following disciplinary guidelines for a violation of the following pertinent provision of Chapter 489, Florida Statutes:

    (18) Failure to satisfy a civil judgment obtained against the licensee or the business

    organization qualified by the licensee within a reasonable time. First violation, $500 to

    $1,000 fine and/or proof of satisfaction of civil judgment; repeat violation, $1,000 to

    $5,000 fine and/or proof of satisfaction of civil judgment, probation, suspension, or revocation.

    
    

    * * *

    
    

    (23) For purposes of Section 489.129(1)(r), F.S., "reasonable time" means ninety (90) days following the entry of a civil judgment that is not appealed. The Board will consider a mutually agreed upon payment plan as satisfaction of such a judgment so long as the payments are current.

    
    

30. According to Rule 61G4-17.002, Florida Administrative Code, the circumstances which may be considered in mitigation or aggravation of the penalty 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 to be 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 conditions 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 complaints 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.

    
    

31. Petitioner's proposed recommended order suggests, as a penalty for the violation found, the imposition of a $1,000 administrative fine and an assessment of $247.508 as reasonable costs of the investigation and prosecution.9 These proposals are consistent with the provisions of Section 489.129(1), Florida Statutes, the penalty guidelines established by Rule 61G4-17.001, Florida Administrative Code, and the mitigation or aggravation factors established by Rule 61G4-17.002, Florida Administrative Code, and are accepted as appropriate under the circumstances of this case.

RECOMMENDATION

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

RECOMMENDED that a Final Order be rendered as follows:

1. Finding Respondent not guilty of Count I of the Administrative Complaint.

2. Finding Respondent guilty of Counts II and III of the Administrative Complaint and imposing, as a penalty for such violations, an administrative fine of $1,000 and the assessment of $247.50 as costs.

DONE AND ENTERED this 12th day of March, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1998.

ENDNOTES

1/ Petitioner's Exhibit 7 for identification was not moved into evidence, and Petitioner's Exhibit 8 was rejected.

2/ This check, dated August 9, 1993, was drawn on the account of All American Building Corporation, and signed by Respondent.

According to Respondent's testimony at hearing, "All American Building Corporation, the people who issued the checks, were a corporation hired to provide financial services by Todd Jonas Architects and they did the accounting. It paid all the subcontractors and collected the money and kept the records." (Tr., at page 84). The reality of the relationship between All American Building Corporation (All American) and Respondent, however, was a bit closer than one would glean from his testimony. Indeed, All American operated from the same "office" as Respondent, and Respondent was the sole officer and stockholder of All American. (Petitioner's Exhibit 1 and Respondent's

Exhibit 2.) The other two checks, discussed, infra, one dated August 16, 1993, and the other dated August 19, 1993, were also drawn on the All American account and signed by Respondent.

3/ The contract was the proposal of June 23, 1993.

4/ MACTEC recovered the full amount it sought for labor and materials supplied to the Munson residence, except for $100. That reduction represented the value of a towel rack that was apparently broken by one of MACTEC's workmen.

5/ Where, as here, the terms used are not defined by law they are to be accorded their plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 454 So. 2d 1351 (Fla. 1984).

6/ Sections 489.103(11) and (16), Florida Statutes, exempt architects from the licensure requirements of Sections 489.101 through 489.146, Florida Statutes, with certain provisos.

Subsection 489.103(11) exempts architects "provided, however, that an architect . . . should not act as a contractor unless properly licensed under this chapter." Subsection 489.103(16) exempts an architect "who offers or renders design-build services which may require the services of a [certified] contractor . . . as long as the contractor services to be performed under the terms of the design-build contract are offered and rendered by a certified

. . . general contractor in accordance with this chapter." Subsection 481.229(3), Florida Statutes, provides a reciprocal arrangement for certified general contractors, and provides that they are "not required to be licensed as an architect when negotiating or performing services under a design-build contract as long as the architectural services offered or rendered in connection with the contract are offered and rendered by an architect licensed in accordance with this chapter."

Here, Respondent contended that he employed MACTEC to perform services under a design-build contract consistent with subsection 489.103(16). While such may have been the case, it is quite irrelevant to the disposition of this case.

7/ See Subsection 489.105(6), Florida Statutes, for the definition of "contracting."

8/ The proof at hearing demonstrated costs of investigation and prosecution, excluding costs associated with an attorney's time, to be $247.50.

9/ Petitioner's proposed recommended order also suggests that the final order provide that:

c. As corrective action pursuant to Section 455.227(2)(g), Fla. Stat., submit proof to the Executive Director of the CILB of: (i) having paid $16,943.96 to Mactec Construction, Inc., or, in the alternative,

(ii) having satisfied the April 14, 1994 civil judgment entered in favor of Mactec Construction, Inc. by the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Case No. 93-17703-CA-1.

The provisions of Section 455.227(2), Florida Statutes, are applicable to the various boards and the Department when there is no board. As such, the penalty guidelines are general in nature and must be read in conjunction with the specific guidelines for each board to ascertain whether the general guidelines have been tempered by more restrictive language which would tend to limit the authority of a particular board. Here, it must be concluded that the additional penalty proposed by Petitioner is beyond the agency's authority. In so concluding, it is observed that Subsection 489.129(1), Florida Statutes, circumscribes the agency's authority to impose penalties. The only authority to require restitution is to "a consumer for financial harm directly related to a violation of a provision of this part." Here, the "consumer" was Mr. Munson, not MACTEC. Consequently, the board has no authority to mandate, as a penalty or, stated differently, as "corrective action," restitution to MACTEC or, stated differently, payment of the civil judgment. Department of Environmental Protection v. Puckett Oil Co., 577 So. 2d 988, 992 (Fla. 1st DCA 1991) ("[A]n agency possesses no inherent power to impose sanctions, and . . . any such power must be expressly delegated by statute."); and Willner v. Department of Professional Regulation, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), review denied

576 So. 2d 295 (Fla. 1991) ("[A] penalty . . . can only be upheld

if the legislative authority relied upon by the agency is sufficiently specific to indicate a clear legislative intent that the agency have authority to exact the penalty prescribed.").

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest 2nd Avenue Suite N-607

Miami, Florida 33128

Todd J. Jonas, pro se

555 Northeast 15th Street Suite 25C

Miami, Florida 33132

Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. 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 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: 97-001477

Orders for Case No: 97-001477