STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1683

)

ROCCO R. SODOMIRE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this cause on August 9, 1999, by video conference between Tallahassee and Fort Myers, Florida, before Carolyn S. Holifield, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leonardo N. Ortiz

Qualified Representative Paul F. Kirsch, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Rocco R. Sodomire

3520 Southeast 2nd Avenue Cape Coral, Florida 33904

STATEMENT OF THE ISSUE

Whether Rocco R. Sodomire (Respondent) violated Section 489.129(1)(c) and (r) and Section 455.227(l)(o), Florida

Statutes, and if so, what disciplinary action should be taken against his license to practice contracting.

PRELIMINARY STATEMENT

On December 23, 1999, Construction Industry Licensing Board (Petitioner), filed an Administrative Complaint, alleging that Respondent violated laws regulating his professional activities as a certified residential contractor. Specifically, the Administrative Complaint alleged that Respondent: (1) failed to satisfy, within a reasonable time, the terms of a civil judgment obtained against him relating to the practice of contracting, in violation of Section 489.129(l)(r), Florida Statutes; and (2) practiced or offered to practice beyond the scope permitted by law or accepted and performed professional responsibilities that he knew, or had reason to know, he was not competent to perform, in violation of Section 455.227(1)(o), Florida Statutes. It was alleged that the aforementioned acts constituted violations of Section 489.129(1)(c), Florida Statutes. Respondent disputed the allegations and requested a final hearing.

On April 12, 1999, the case was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge.

At hearing, Petitioner presented the testimony of one witness, Vincent Neglio. Petitioner offered and had 3 exhibits received into evidence. Respondent testified on his own behalf and had 1 exhibit admitted into evidence.

At the conclusion of the hearing, the time set for filing proposed recommended orders was 10 days from the date the transcript was filed. A Transcript of the final hearing was filed on August 27, 1999. Prior to the time set for filing proposed recommended orders, Petitioner requested and was granted an extension of time in which to file proposed recommended orders. Petitioner timely filed Proposed Findings of Fact and Conclusions of Law under the extended time frame. No post- hearing submittal was filed by Respondent.

FINDINGS OF FACT

1. Respondent is, and has been at all times material hereto, a Certified Residential Contractor in the State of Florida, having been issued license number CR CO57213.

2. At all times material hereto, Respondent was not licensed to do any swimming pool/spa contracting in the State of Florida.

3. On or about November 1996, Respondent submitted a proposal to Vincent Neglio for the construction of a 28' x 14'

   in-ground swimming pool, a deck, and a screen enclosure at a cost of $15,000.00. Shortly thereafter, pursuant to the proposal, Respondent began construction of a swimming pool and deck at

   Mr. Neglio's residence.

   
   

4. Prior to completion of the pool project, Mr. Neglio paid Respondent a total of $14,200.00. Although Respondent

   received $14,200.00 from Vincent Neglio, he never completed the pool project.

5. Respondent presented the proposal for the pool project to Mr. Neglio; accepted money from Mr. Neglio as payment for work on the project; distributed funds to other contractors who worked on the pool project; and performed work on the pool project at Mr. Neglio's home.

6. On August 4, 1997, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division (Case Nos. 97-2569SP-RRS and 97-2570-SP-RRS), entered a Record of Agreement between Respondent and Mr. Neglio whereby Respondent was to pay Mr. Neglio a total of $2,600.00 to settle the dispute involving the aforementioned pool project.

7. On January 13, 1998, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division, in the above-referenced cases entered a Final Judgment by Default against Respondent in favor of Vincent Neglio in the amount of $2,600.00, the payment amount required in the Agreement, as a result of Respondent's failing to pay monies based on the Agreement referenced in paragraph 6.

8. To date, Respondent has failed to make any payments to Vincent Neglio based on the Small Claims Court Record of Agreement, referenced in paragraph 6 or the Final Judgment by Default referenced in paragraph 7.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes.

10. Respondent, as a Certified Residential Contractor, is charged with the responsibility of complying with the provisions of Chapter 489, Part I, Florida Statutes, and all applicable rules adopted pursuant thereto. Likewise, Respondent is subject to the disciplinary guidelines of Chapter 489, Part I, Florida Statutes.

11. Pursuant to Section 489.129(1), Florida Statutes, 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 grounds enumerated in Section 489.129(1), Florida Statutes. That section provides:

    1. The Board may take any of the following actions against any certificate holder or registrant: place on probation or reprimand the license, revoke, suspend, or deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, 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, a financially responsible officer, 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.

       
       

       * * *

       
       

       (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.

       
       

12. Section 455.227(1), Florida Statutes, states in pertinent part:

    1. The following acts constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       
       

       * * *

       
       

       (o) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform.

       
       

13. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996).

14. Section 489.105, Florida Statutes, provides in relevant part the following definitions:

    (3) "Contractor" means the person who is qualified for, and shall be only responsible for, the project contracted for, and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by

    others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the subsequent paragraphs of this subsection:

    * * *

    
    

    (c) "Residential contractor" means a contractor whose services are limited to construction, remodeling, repair, or improvement of one-family, two-family, or three-family residences . . . .

    
    

15. Petitioner established by clear and convincing evidence the allegations contained in Count I of the Administrative Complaint. Count I alleges that Respondent practiced or offered to practice beyond the scope permitted by law or accepted and performed professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform in violation of Sections 455.227(1)(o) and 489.129(1)(c), Florida Statutes. The evidence established that Respondent is a certified residential contractor. Accordingly, the scope of work that he is authorized to perform is limited to the work described in Section 489.105(3)(c), Florida Statutes. Construction of a swimming pool is not within the scope of work permitted by Respondent's residential contractor's license.

16. With regard to Count II, Petitioner has met its burden. Count II alleges that Respondent failed to satisfy the terms of a civil judgment within a reasonable amount of time in violation of Section 489.129(1)(r), Florida Statutes. The undisputed evidence

    established that a civil judgment was entered against Respondent on January 13, 1998, and that as of the date of this final hearing, Respondent had failed to satisfy the judgment.

17. Sections 489.129(1) and 455.227(3), Florida Statutes, authorize Petitioner to assess costs of investigation and prosecution in addition to the penalties provided above. Rule 61G4-12.018, Florida Administrative Code, requires Petitioner to submit to the Construction Industry Licensing Board a list of all costs related to the investigation and prosecution of the Administrative Complaint at the time the complaint is presented to the Board for final agency action. As evidenced by the affidavit submitted by Petitioner, its cost of investigation and prosecution, excluding costs associated with an attorney's time, is in the amount of $858.97.

RECOMMENDATION

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

RECOMMENDED that the Construction Industry Licensing Board enter a final order that: (1) finds Respondent committed the offenses alleged in Counts I and II of the Administrative Complaint and imposes a $500.00 fine for these violations; (2) requires Respondent to pay restitution to Vincent Neglio in the amount of $2,600.00; and (3) requires Respondent to pay to Petitioner $858.97, the costs incurred by Petitioner in the investigation and prosecution of this proceeding.

DONE AND ENTERED this 23rd day of November, 1999, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1999.

COPIES FURNISHED:

Paul F. Kirsch, Esquire

Leonardo N. Ortiz, Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Rocco R. Sodomire

3520 Southeast 2nd Avenue Cape Coral, Florida 33904

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

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Barbara D. Auger, 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: 99-001683

Orders for Case No: 99-001683