STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. )

)

ROBERT MENSCHING, )

)

Respondent. )

Case No. 02-4820PL

)

RECOMMENDED ORDER

Upon due notice William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on February 12, 2003, by video teleconference with sites in Fort Myers, and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Kimberly V. Clark, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Robert Mensching, pro se

1719 Northeast 23rd Terrace Cape Coral, Florida 33909

STATEMENT OF THE ISSUE

Did Respondent violate Section 489.129(1)(h), Florida Statutes, and, if so, what discipline should be imposed?

PRELIMINARY STATEMENT

By an Administrative Complaint dated May 6, 2002, and filed with the Division of Administrative Hearings (Division) on December 16, 2002, the Department of Business and Professional Regulation (Department) is seeking to revoke, suspend, or otherwise discipline Respondent's Certified Residential Contractor's License.

As grounds therefor, the Department alleges that Respondent violated Section 489.129(1)(h), Florida Statutes, when Respondent appeared before the City of Cape Coral, Contractors' Regulatory Board (Board) and pled No Contest to the following charges: (1) Making misleading, untrue, or fraudulent representation in the practice of contracting; (2) Diversion of funds resulting in the contractor being unable to finish the project; (3) Committing mismanagement or misconduct in contracting that causes financial harm; (4) Abandoning a construction project; and (5) Being found guilty of fraud or deceit or gross negligence, incompetence, or misconduct in contracting.

By an Election of Rights dated October 1, 2002, Respondent denied all of the allegations and requested a formal hearing.

By letter dated December 17, 2002, the Department referred the matter to the Division for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, the Department presented the testimony of Randy Bell. The Department's Exhibits 1 through 4 were admitted in evidence. Respondent testified in his own behalf but did not offer any documentary evidence.

A Transcript of this proceeding was filed with the Division on February 26, 2003. The Department timely filed its Proposed Recommended Order. Respondent elected not to file a proposed

recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida vested with statutory authority to regulate the practice of contracting under Chapters 455 and 489, Florida Statutes.

2. Respondent is a licensed certified residential contractor in the State of Florida. Respondent's license number, as certified by Julie Odom, Department's Alternate Records Custodian, is CRC 20166. However, the Administrative Complaint alleges the license number to be CR C020166. Respondent's licensure status is "Delinquent, Active."

3. On May 18, 1989, the Department entered a Final Order in DOAH Case No. 88-3308 wherein Respondent was found guilty of violating Section 489.129(1)(h),(j),(k), and (m), Florida Statutes.

4. On September 27, 2000, the City of Cape Coral, Florida, Contractor's Regulatory Board (Board) entered into a

   Settlement Agreement (Agreement) with Respondent, in regard to a complaint, Case No. 00-01, wherein Respondent was charged with violating the following Sections of the City of Cape Coral Code of Ordinances:

   6-10.1:, To make misleading, deceptive, untrue, or fraudulent representations in the practice of his contracting profession;

   6-10.8: Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract;

   6-10.10: Failing in any material respect to comply with the provisions of the Code;

   6-10.11: Abandoning of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the

   contractor terminates the project without notification to the prospective owner and the City and without just cause; and

   6-10.13: Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting.

5. The Agreement provided that Respondent was pleading No Contest to the charges that he violated the aforementioned sections of the City of Cape Coral's Code of Ordinances and that Respondent's plea did not act as an admission of guilt as to the above mentioned charges. The Agreement provided for Respondent's permit pulling privileges to be revoked for a period of 90 days starting August 23, 2000.

6. By an Order dated December 29, 2000, the Board, after hearing and discussing the charges made against Respondent, voted to accept and approve the Agreement.

7. By this Agreement, Respondent's contracting license was disciplined by the City of Cape Coral.

8. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $967.09.

   CONCLUSIONS OF LAW

   
   

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

10. Subsection 489.129(1)(h), Florida Statutes, provides in pertinent part as follows:

    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, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administration 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 financial officer or a secondary qualifying agent responsible under s. 489.1195 is found guilty of any of the following acts:

    
    

    * * *

    
    

    (h) Being disciplined by any municipality or county for an act or violation of this part. (Emphasis furnished.).

    
    

    The violations of the City of Cape Coral's Code of Ordinances that Respondent violated, and are the basis for the Board's discipline of the Respondent's license, are also violations of Subsections 489.129(1)(g)(i)(j)(l) and (m), Florida Statutes.

11. Subsection 455.227(3)(a), Florida Statutes, provides as follows:

    (3)(a) In addition to any other discipline imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department

    when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time. (Emphasis furnished.)

    
    

12. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the Department must establish facts upon which its allegations are based by a clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996) and Subsection 120.57(1)(j), Florida Statutes. The Department has shown by clear and convincing evidence that Respondent violated Section 489.127(1)(h), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, with consideration for the repeat violation of Section 489.129(1)(h), Florida Statutes, it is

RECOMMENDED that the Department enter a final order finding Respondent, Robert Mensching guilty of violating Subsection 489.129(1)(h), Florida Statutes, and for such violation: (a) impose an administrative fine in the amount of $5,000.00;

(b) assess costs in the amount of $967.09; and (c) revoke Respondent's Certified Residential Contractor's License.

DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 21st day of March, 2003.

COPIES FURNISHED:

Kimberly V. Clark, Esquire Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

Robert Mensching

1719 Northeast 23rd Terrace Cape Coral, Florida 33909

Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulations Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 02-004820PL

Orders for Case No: 02-004820PL