vs.
Respondent.
) Case No. 05-1499PL
This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on July 8, 2005, at sites in Tallahassee and Miami, Florida.
For Petitioner: Theodore R. Gay, Esquire
For Respondent: Leon E. Sharpe, Esquire
Leon E. Sharpe, P. A. 4770 Biscayne Blvd
In this disciplinary proceeding, the issues are whether Respondent, a licensed contractor, failed timely to renew the certificate of authority issued to his qualified business entity; failed to include, in a construction contract, the
required notice regarding consumer rights under the recovery fund; abandoned a construction project; or committed any of these offenses, as alleged by Petitioner in its Administrative Complaint. If Petitioner proves one or more of the alleged violations, then an additional question will arise, namely whether penalties should be imposed on Respondent.
On September 29, 2004, Petitioner Department of Business and Professional Regulation issued a three-count Administrative Complaint against Respondent Vic George, wherein it was alleged that he had violated various provisions in Part I of Chapter 489, Florida Statutes, which laws regulate the construction industry. Mr. George timely requested a formal hearing to contest these allegations, and the matter was referred to the Division of Administrative Hearings on April 19, 2005.
The final hearing was originally set for June 9, 2005, but was continued to July 8, 2005, at Respondent's request. Both parties appeared through counsel at the final hearing, which took place as scheduled.
At hearing, Petitioner presented the testimony of four witnesses: Anthony Hazard, Steve Edwards, Toby Cline, and Ovilio Suarez. Petitioner also offered twenty exhibits, identified as Petitioner's Exhibits 1 through 20, inclusive, and these were admitted into evidence.i Mr. George testified on his
own behalf and additionally called Rick Nelson to the witness stand. Respondent offered no exhibits in this case.
The administrative law judge granted Respondent's unopposed motion to enlarge the time for submitting proposed recommended orders, from September 1 to September 8, 2005. Thereafter, each party submitted a proposed recommended order, and these papers were considered.ii
Unless otherwise indicated, citations to the Florida Statutes refer to the 2005 Florida Statutes.
Respondent Vic George ("George") is a certified general contractor and a certified roofing contractor. As a licensee in these fields, George is subject to the regulatory jurisdiction of the Construction Industry Licensing Board ("Board").
Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction over disciplinary proceedings for the Board. At the Board's direction, the Department is authorized to prosecute administrative complaints against licensees within the Board's jurisdiction.
George's Businesses
At times material to this action, George carried out the business of a contractor through, and was the qualifying
agent of, a company known as South Florida Remodeling and Building Corporation ("S.F. Remodeling").
At other times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as One Stop Remodeling and Building Corporation ("One Stop"). One Stop was a successor to S. F. Remodeling.
The Department issued an initial certificate of authority to One Stop that, effective August 31, 2001, permitted the company lawfully to engage in the business of contracting for two years. One Stop failed timely to renew its certificate before the expiration date of August 31, 2003.
In a Final Order Approving Settlement Stipulation entered on February 18, 2004, the Board disciplined George for, among other things, the failure of One Stop timely to renew its certificate of authority.iii The Board suspended George's contracting licenses indefinitely but stayed the suspension for
90 days to allow George to furnish evidence that corrective actions had been taken, which actions were to include the renewal of One Stop's certificate. Had George failed to provide such evidence, the stay would have been lifted and his licenses immediately suspended.
George's licenses were not suspended in consequence of the Final Order just described. It is thus reasonable to infer,
and is hereby found, that George satisfied the all of the conditions (including the renewal of One Stop's certificate) for preventing the suspension from taking effect. That being the case, One Stop's certificate was renewed before mid-May 2004.iv
In light of the foregoing findings, the Department failed to prove by clear and convincing evidence its allegation that One Stop's certificate was delinquent until October 2004.
The Hazard Project
Anthony Hazard ("Hazard") is an insurance agent who sells property and casualty insurance in Miami-Dade County. Some time before September 2000, a man named Rick Nelson bought insurance through Hazard's insurance agency, and he and Hazard developed a friendly relationship.
Mr. Nelson was an employee and officer of S.F. Remodeling, for whom he was a construction supervisor. As Mr. Nelson and Hazard got to know one another, they realized that each could be a source of business referrals for the other. In fact, Mr. Nelson did direct some persons in need of insurance to Hazard, and Hazard recommended Mr. Nelson to some persons in need of a contractor.
It was natural, therefore, that when Hazard and his wife decided in the year 2000 to add an enclosed patio to their house, Hazard turned to Mr. Nelson for assistance. Mr. Nelson told Hazard that S.F. Remodeling could do the job.
In a written price quote dated September 29, 2000, and delivered to Hazard on or about that date, Mr. Nelson, on behalf of his employer, represented that S.F. Remodeling could build an enclosed patio for the Hazards at a total cost of $9,938. The Hazards agreed to this proposal, and work preliminary to construction, such as the preparation of the architectural plans, commenced forthwith.
The plans were drawn by Curtis Williams, a draftsman who worked for an architect named Charles Mitchell.v In the course of obtaining the local building official's approval of the plans, it was learned that the project as originally contemplated would need to be modified to comply with the zoning laws. The necessary design changes would increase the cost of construction slightly.
Thus, effective November 21, 2000, the Hazards and
S.F. Remodeling entered into a one-page agreement pursuant to which the contractor promised to build the Hazards an enclosed patio for $10,100. The contract did not contain an explanation of the owners' rights under the Florida Homeowners' Construction Recovery Fund, which was known at the time as the Construction Industries Recovery Fund. (Hereafter the referenced fund will be called the "Recovery Fund.")
The agreement was a sweetheart deal for the Hazards.
In an arms-length transaction, the project likely would have
cost between $16,000 and $18,000. S.F. Remodeling agreed to do the work for little or no profit in the hope (and with the expectation) that Hazard would continue referring potential customers to Mr. Nelson.
The building permit was issued on November 30, 2000, and S.F. Remodeling promptly began work at the jobsite. From then until at least February 14, 2001, work progressed at a reasonable pace. The contractor demolished and removed the existing slab, installed a new footing, poured a new slab, and framed the tie beam. Along the way, in the ordinary course of construction, local building officials inspected and approved the foundation and the new slab.
One unforeseen development, however, had caused friction between the Hazards and the contractor. Beneath the existing concrete slab had been found another slab whose removal had entailed unanticipated expenses for excavation work and fill material. Mr. Nelson had asked Hazard to cover some or all of these costs, but Hazard had refused. Because the contract price left no room for error, it had become apparent within a short time after breaking ground that S.F. Remodeling would lose money on the project.
Yet another unforeseen occurrence brought the work to a halt. At a routine inspection of the project on March 16, 2001, the local building official refused to approve the tie
beam. He determined that the architect's plans, which had been approved prior to issuance of the building permit, were deficient for failure to depict how the tie beam would connect to the existing structure; hence, the plans would need to be revised and approved before construction could continue.
Without delay, Mr. Nelson called Mr. Williams and explained the situation to the draftsman, who agreed to revise the plans. Not long thereafter, Mr. Nelson brought the job copy of the plans to Mr. Williams.
Mr. Williams did, in fact, make the necessary changes to the plans. It is not clear, however, when exactly this work was completed. All that can be found with certainty on the existing record is that Hazard picked up a copy of the revised plans from Mr. Williams in December 2002, nearly two years after work on the project had stopped as of March 16, 2001.
The Department urges the undersigned to infer that the reason for the delay was the contractor's failure——in breach of the contract——to pay the draftsman for revising the plans. The undersigned declines to draw this inference, however, because the evidence on the point is conflicting and ambiguous; the undersigned, ultimately, is just not convinced that this was the reason.vi
At bottom, the cause or causes of the delay were not proved clearly and convincingly. (The person most likely to
have personal knowledge regarding what happened——Mr. Williams—— was not called to testify, nor was anyone else from the architect's office, leaving a gaping hole in the record.) The undersigned therefore cannot make any inculpatory findings pinning the blame for the delay on S.F. Remodeling or its agents.
In aid of its proof of the serious allegation that
S.F. Remodeling or its successor One Stopvii abandoned the Hazard project, the Department relies upon a statutory provision under which the fact-finder is permitted to presume abandonment if it is shown that the contractor failed to perform work without just cause for 90 consecutive days. The Department's reliance on this statutory presumption is misplaced, however, because the Department did not prove, by the required quantum of evidence, that S.F. Remodeling failed to work without just cause for 90 days, a basic fact upon which the presumption must rest.
The fact is, on March 16, 2001, S.F. Remodeling had just cause to cease working, for the simple reason that, as of that date, the contractor could not legally work on the project until such time as the architect had amended the plans and obtained approval thereof from the local building official. The Department's theory is that it took too long to attend to this situation, which might be true, and that S.F. Remodeling was at fault for the delay, which is possible, too; yet neither
proposition was proved clearly and convincingly.viii To explain, there is no convincing evidence in the record as to the reasonable period of time for the preparation and approval of amended plans in the ordinary course of business, nor is there any proof regarding the steps that a reasonable contractor should take under such circumstances to expedite the process.ix In other words, there is no convincing evidence of applicable standards of conduct against which to measure this contractor's performance. In the absence of such evidence, the undersigned cannot, consistent with the rule of law, simply apply standards of his own devising, based on his personal preferences concerning how contractors should perform, no matter how sensible or wise those personal standards might be. In the absence of legal standards, the undersigned must withhold judgment, rather than render a personal one.
It is therefore impossible, based on the evidence in the record, for the undersigned to fix the point in time, if there were one, when just cause no longer existed for S.F. Remodeling not to be working on the Hazard project. Without that reference point, it cannot be determined whether the contractor failed to perform work without just cause for 90 consecutive days. Thus, the undersigned cannot presume abandonment.
Moreover, even if the Department had proved that S.F. Remodeling breached a legal or contractual duty to cause the revised plans to be prepared and approved sooner than these events actually occurred, the question at hand is not whether the contractor breached the contract or was negligent; the question is whether the contractor abandoned the project——i.e.
quit the job with the intention never to resume working toward its completion. Simply put, the contractor's failure to prevent unreasonable delay in the work, if there were such a failure, would not, without more than was proved here, manifest the requisite intention never to complete the project.
On November 4, 2002, Hazard signed a consumer complaint against S.F. Remodeling, which he then filed with the Miami-Dade County Building Code Compliance Office. In his complaint, Hazard accused the contractor of failing to complete the job and refusing to contact him about it. After investigating the matter, local officials referred Hazard's complaint to the Department, giving rise to the instant proceeding.
Some time after bringing his consumer complaint, Hazard hired another contractor, Edwards Construction, Inc. ("Edwards"), to complete the project.x Edwards obtained a permit for the project in April 2003 and began working several months
later, taking about four months to finish the job. A final inspection approving the project was had on November 7, 2003.
All told, the Hazards invested $23,216.69 in their new patio. This grand total, however, included some extras (a concrete pad for parking a boat, a sidewalk, and some steps) that S.F. Remodeling had not been under contract to build. Breaking down the total amount paid, the Hazards incurred
$9,419.73 in expenses while S.F. Remodeling was on the job, and
$13,796.96 when Edwards was doing the work.
On September 29, 2004, the Department issued a three- count Administrative Complaint against George. As of May 19, 2005, the Department had expended a total of $596.20 in investigative and prosecutorial costs, excluding attorney's fees.
The Charges
In Count I of its Administrative Complaint, the Department alleged that S.F. Remodeling had failed to include in its contract with the Hazards a statement explaining the consumers' rights under the Recovery Fund, as required by Section 489.1425, Florida Statutes. It is the Department's position that George, as the company's qualifying agent, is subject to discipline for this oversight pursuant to Section 489.129(1)(i), which makes it an offense materially to disobey any statutory provision or order of the Board.
In Count II, the Department charged George separately under Section 489.129(1)(i), asserting that he, as qualifying agent, had failed to obey a statutory provision, namely Section 489.119(2)(d), which requires that a corporate contractor's certificate of authority must be renewed every two years. As the basis for this charge, the Department alleged that One Stop's certificate had expired on August 31, 2003, and not been renewed until October 2004.
In Count III, the Department accused George of having abandoned a construction project, which is a disciplinable offense under Section 489.129(1)(j), Florida Statutes. In support of this Count, the Department, as mentioned, has relied upon an evidentiary device that permits the fact-finder to presume abandonment upon proof that the contractor failed to perform work without just cause for 90 consecutive days.
Ultimate Factual Determinations
Because the contract between S.F. Remodeling and the Hazards did not, in fact, include the statutorily required notice regarding the Recovery Fund, George, in his capacity as qualifying agent, is guilty of failing to obey a statutory provision, as charged in Count I.
There is no dispute that One Stop's certificate of authority lapsed as of August 31, 2003. Indeed, the Board disciplined George for the oversight, entering a final order on
February 18, 2004, with which he timely complied. As a result of this previous discipline, One Stop's certificate was renewed and the matter concluded. The Board cannot lawfully punish George twice for the same offense. Thus, George is not guilty of the offense charged in Count II of the Administrative Complaint.
The undersigned is not convinced that S.F. Remodeling abandoned the Hazard project. At most it might be inferred that, after the local building inspector stopped the job due to faulty architectural plans——a problem not of the contractor's making——S.F. Remodeling, being in no hurry to resume working on a money-losing project, took a laissez-faire approach to the ensuing delay. But the Department did not prove "strategic sloth" by clear and convincing evidence, and such would not constitute abandonment even if it had. The evidence leaves open the reasonable possibility that S.F. Remodeling intended and expected to finish the job someday, even if it hoped that day would not come soon.xi Consequently, George is not guilty of the charge set forth in Count III of the Administrative Complaint.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Section 489.129, Florida Statutes, under which George was charged, sets forth the acts for which the Board may impose discipline. This statute provides, in pertinent part:
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 administrative fine not to exceed
$10,000 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 a secondary qualifying agent responsible under
s. 489.1195 is found guilty of any of the following acts:
* * *
Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.
Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
Section 489.1425, Florida Statutes——which George is alleged to have violated, committing a disciplinable offense
according to Section 489.129(1)(i), Florida Statutes——provides, in pertinent part:
Any agreement or contract for repair, restoration, improvement, or construction to residential real property must contain a written statement explaining the consumer's rights under the recovery fund, except where the value of all labor and materials does not exceed $2,500. . . . The statement shall be immediately followed by the board's address and telephone number as established by board rule.
(2)(a) Upon finding a first violation of subsection (1), the board may fine the contractor up to $500, and the moneys must be deposited into the recovery fund.
(b) Upon finding a second or subsequent violation of subsection (1), the board shall fine the contractor $1,000 per violation, and the moneys must be deposited into the recovery fund.
Section 489.119(2)(d), Florida Statutes——which George is alleged to have violated, committing a disciplinable offense according to Section 489.129(1)(i), Florida Statutes——contains the following requirements:
(2) If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than the applicant's legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any.
* * *
(d) A certificate of authority must be renewed every 2 years. If there is a change in any information that is required to be stated on the application, the business organization shall, within 45 days after such change occurs, mail the correct information to the department.
Section 489.1195(1)(a), Florida Statutes, provides that "[a]ll primary qualifying agents for a business organization are 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."
Being penal in nature, the foregoing statutes "must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Department of Professional Regulation, Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).
A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission,
281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Department must prove the charges against George by clear and convincing evidence. Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne
Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v.
Department of Business & Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
Regarding the standard of proof, in Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:
clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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.
Id. The Florida Supreme Court later adopted the fourth district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler
Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.
denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).
The undersigned has determined, as a matter of ultimate fact, that the Board, one, failed to establish George's guilt in connection with the charges brought under Counts II (nonrenewal of certificate) and III (abandonment) of the Administrative Complaint; but, two, proved the charge brought in Count I respecting S.F. Remodeling's failure to include, in its contract with the Hazards, the statutory notice regarding the Recovery Fund. In making these determinations, the undersigned concluded that the plain language of Sections 489.129(1)(i), 489.1425, and 489.119(2)(d), Florida Statutes, being clear and unambiguous, could be applied in a straightforward manner to the historical events at hand without simultaneously examining extrinsic evidence of legislative intent or resorting to principles of interpretation. It is therefore unnecessary to make additional legal conclusions with regard to the charges brought under Counts I and II.
However, Section 489.129(1)(j), Florida Statutes, which subjects a contractor to discipline for abandoning a project, is less obviously unambiguous, owing to the absence of statutory definitions for the key terms "abandonment" and "just cause."
To understand what it means to "abandon" a construction project, the undersigned looked at ordinary
dictionary definitions of the term. See, e.g, Merriam-Webster® OnLine Dictionary <http://www.m-w.com/> (definition of "abandon"). From these definitions, which are indicative of common usage, the undersigned concluded that, in the present context, "abandonment" of a project entails a failure or refusal to work accompanied by the intent never to finish the job.
This ordinary understanding of "abandonment" is not materially different from the meaning ascribed to the term in legal discourse. Thus, for example, the leading law dictionary states, in relevant part: "'Abandonment' includes both the intention to abandon and the external act by which the intention is carried into effect." See Black's Law Dictionary at p. 2 (5th ed. 1979).
Although some analysis is required to understand the statutory phrase "[a]bandoning a construction project," the undersigned concludes that Section 489.129(1)(j) is unambiguous in this regard: It clearly requires proof of intent to abandon in addition to evidence of inactivity at the jobsite.
The legislature included in the disciplinary statute evidentiary devices designed to make it easier for the Department to prove this intentional wrongful act. Specifically, as has been discussed previously, the statute allows the fact-finder to presume abandonment if the contractor
failed "to perform work without just cause for 90 consecutive days."
The term "just cause" is much more obviously a legal term of art than "abandonment." Black's offers several definitions that capture the essential meaning of this somewhat technical term:
A cause outside legal cause, which must be based on reasonable grounds, and there must be a fair and honest cause or reason, regulated by good faith. . . . Legitimate cause; legal or lawful ground for action; such reasons as will suffice in law to justify the action taken.
See Black's Law Dictionary at p. 775. The undersigned interprets the term "just cause" as used in Section 498.129(1)(j) to mean an objectively reasonable basis in fact for not working on a construction project.
In its Proposed Recommended Order, the Department has taken the position, not previously announced in this case, that to defeat the presumption of abandonment, George had the burden of proving "just cause" as a matter of defense. See Pet. Prop. Rec. Order at 16-17. Having spotted this important issue, the Department neglected to cite any supporting legal authority, and George, who apparently did not anticipate this attack, offered no argument against it.
Whether "just cause" operates as an affirmative defense is a question analogous to one that arises from time to
time in criminal law, namely whether the state must negate some fact or other as an element of the offense.xii The Florida Supreme Court articulated the general rule for resolving such burden-of-proof disputes in the nineteenth century case of Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890). The Baeumel rule, in a nutshell, is that the state must prove the nonexistence of any exception found in the "enacting clause" defining the offense, whereas the defendant must show that he falls within any exception located in a subsequent clause or subsequent statute. 26 Fla. at 75, 7 So. at 372.
Statutes that were held pursuant to the Baeumel rule to create affirmative defenses can be seen in State v. Hicks,
421 So. 2d 510 (Fla. 1982), and State v. Thompson, 390 So. 2d 715 (Fla. 1980). In Hicks, the court considered whether non- consent to entry was an essential element of burglary under a statute that provided as follows:
"'Burglary'" means entering or remaining in a structure or conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain."
Hicks, 421 So. 2d at 511, quoting § 810.02(1), Fla. Stat. (1979)(emphasis in the court's opinion). The court ruled that the state was not required to prove the absence of consent, reasoning that the term "unless" qualified the statute's primary
sentence, effectively "separating the consent phrase from the enacting clause and making consent an affirmative defense." Id.
In Thompson the issue was whether the defendant's conviction on the charge of possessing a short-barreled shotgun could stand, where the state had failed to prove that the defendant's shotgun was not an antique weapon. Thompson, 390 So. 2d at 716. The relevant statute provided in part:
"It is unlawful for any person to own or to have in his care, custody, possession, or control any short-barreled rifle, short- barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms."
Id. at 716 n.1, quoting § 790.221(1), Fla. Stat. (1977). The court held that the antique weapons proviso (beginning with the word "but") constituted a "subsequent clause" under the Baeumel
rule and hence prescribed a potential defense, not an element of the offense.
The converse result was reached in Robarge v. State,
432 So. 2d 669 (Fla. 5th DCA 1983), rev. denied, 450 So. 2d 855 (Fla. 1984). There, the district court reversed the defendant's conviction for possession of a firearm without a license because the state had failed to prove that he lacked a valid license for the firearm. 432 So. 2d at 670. The question whether lack of a license was a defense or an essential element of the crime depended on the meaning of Section 790.05, Florida Statutes
(1981), which the court quoted as follows:
"Whoever shall carry around with him, or have in his manual possession, in any county in this state, any pistol, electric weapon or device, or Winchester rifle or other repeating rifle without having a license from the county commissioners of the respective counties of this state shall be guilty of a misdemeanor "
Id. The court, applying Baeumel, found that the absence of a license was an essential element of the crime, id. at 672, because "the 'exception' [appeared] in the enacting clause
. . . ." Id. at 671. The Florida Supreme Court agreed. Though it denied the state's petition for review, the Supreme Court issued an opinion wherein it wrote:
[I]t is clear that the "without a license" provision is not "an exception in a subsequent clause." Rather, "without a license" is a prepositional phrase in the enacting clause of the statute. Therefore, the district court['s decision was correct.]
450 So. 2d 856.
Like "without a license" in Robarge, "without just cause" is clearly a prepositional phrase in the "enacting statute" that authorizes the presumption, not an exception located in a "subsequent clause." Further, the contrast between the prepositional phrase "without just cause," on the one hand, and the "subsequent clauses" at issue in Hicks and Thompson, on the other, is clear as well. Following the Baeumel rule of construction, the undersigned readily concludes that the absence
of "just cause" is a basic fact essential to raising the statutory presumption of abandonment. To be entitled to benefit from the statutory presumption, therefore, the Department must prove both that the contractor failed to work for 90 consecutive days and that the contractor's inactivity was objectively unreasonable under the circumstances, i.e. unattended by "just cause."
The undersigned, as discussed above, has found as a matter of ultimate fact that the Department failed to carry its burden of proof with respect the matter of "just cause."
Having found George guilty of failing to notify the Hazards about the Recovery Fund, the undersigned must consult the Board's penalty guidelines. See § 455.2273(5)("The administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board or department and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based.")
The applicable penalty guidelines are set forth in Florida Administrative Code Rule 61G4-17.001, which provides in pertinent part:
The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this chapter.
* * *
Section 489.129(1)(i), F.S.: Failing in any material respect to comply with the provisions of Part I of Chapter 489, F.S.
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4. Section 489.1425, F.S.: Failure to notify residential property owner of recovery fund. First violation, $100 to
$500 fine; repeat violation, $1,000 fine.[xiii]
The Board has defined the term "repeat violation" as follows:
As used in this rule, a repeat violation is 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; and said definition is to apply regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.
The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a different subsection of Chapter 489, F.S., than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.
Fla. Admin. Code. R. 61G4-17.003
Under the foregoing Rule, S.F. Remodeling's failure to notify the Hazards regarding the Recovery Fund constitutes a
"repeat violation" for George; indeed, it is a "repeat violation" under paragraph (2) thereof, warranting a doubly enhanced penalty. See endnote 3 and accompanying text, supra. The undersigned, however, is chary of recommending a penalty in excess of the maximum fine——$1,000——prescribed in Section 489.1425(2)(b) for a "second or subsequent violation" of the notice requirement.
The undersigned has considered and found inapplicable the aggravating and mitigating circumstances set forth in Florida Administrative Code Rule 61G4-17.002.xiv
The Board is entitled to assess its investigative and prosecutorial costs pursuant to Florida Administrative Code Rule 61G4-17.001(4).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order
(a) finding George not guilty of the offenses charged in Counts II and III of the Administrative Complaint; (b) finding George guilty of the offense charge in Count I thereof; (c) imposing a fine of $1,000 for the notice violation, which is a repeat offense; and (d) assessing investigative and prosecutorial costs in the amount of $596.20.
DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
i/ At hearing the undersigned expressed concern whether Petitioner's Exhibits 17, 18, and 19, being hearsay, were admissible as primary evidence of the truth of their respective contents. The parties were invited to address the issue in their proposed recommended orders, and they did. Upon reflection, the undersigned concluded, first, that the exhibits in question met the requirements for self-authentication under Section 90.902(1), Florida Statutes; and, second, that Petitioner had laid an adequate foundation for receiving the documents as "public records" under the hearsay exception set forth in Section 90.802(8), Florida Statutes. Accordingly, each of these exhibits was deemed sufficient in itself to support a finding of fact. See § 120.57(1)(c), Fla. Stat.
ii/ Petitioner's Proposed Recommended Order was filed one day out-of-time. The undersigned hereby grants, nunc pro tunc, Petitioner's Motion to Consider Petitioner's [Untimely] Proposed Recommended Order, which motion Petitioner filed on
September 12, 2005.
iii/ Another violation for which discipline was imposed concerned S.F. Remodeling's failure to notify a customer, in writing, about the Construction Industries Recovery Fund. (The significance of this bit of information will become apparent later.)
iv/ Despite some ambiguity in the evidence, the undersigned believes that, most likely, One Stop's certificate was renewed effective March 14, 2004, the date George read at hearing from the certificate itself (which is not in evidence). George's testimony that he had renewed the certificate in the "fall" of 2004 was simply a mistake. Had George waited that long to renew One Stop's certificate of authority, his own licenses would have been suspended immediately pursuant to the Board's prior order.
v/ As to who chose Mr. Williams——the Hazards or Mr. Nelson——the evidentiary record is silent. It is clear that Hazard paid Mr. Williams $400 in November 2000, but this fact is not especially revealing because, in time, Hazard would pay other materialmen and subcontractors directly, for credit against amounts due S.F. Remodeling.
vi/ If failure to pay the draftsman were the cause for the delay, however, that fact would tend to disprove the Department's theory that the contractor intended never to return to the project at issue. This is because if additional money were paid to Mr. Williams, then the contractor most likely made the payment, for Hazard himself did not take credit for it——and given Hazard's meticulous accounting of his expenditures on the project, the undersigned infers that he would have. And if, as likely would have been the case, the contractor paid Mr.
Williams's bill for the revised plans, then the inference would be strong that the contractor intended to finish the job, since there would be no point otherwise in its incurring such an expense.
vii/ On October 25, 2001, Mrs. Hazard signed a Hold Harmless agreement which (a) requested that Miami-Dade County cancel the building permit that had been issued to S.F. Remodeling; (b) authorized One Stop to apply for a new permit in its name; and
(c) released the county from any liability for canceling the permit. One Stop thereafter became the contractor of record on the project, although One Stop never performed any work on the Hazards' patio. Because George qualified both companies, it is unnecessary, in this Recommended Order, to distinguish between
S.F. Remodeling and One Stop, except in connection with the allegation that One Stop failed timely to renew its certificate of authority. Accordingly, except when discussing that particular issue, the undersigned will use the name S.F. Remodeling to denote George's business.
viii/ The Department has not alleged, attempted to prove, or argued that the contractor was responsible for the problem (a deficiency in the architectural plans) that triggered the delay in the first place.
ix/ Suppose, for example, that the draftsman was dragging his feet because revising the plans for the Hazards' patio was not a high priority project for him, as George suggested at hearing.
What should a contractor reasonably do in that event——discharge the dilatory architect and retain a more diligent one? At whose expense? Suppose further, as is possible, that the Hazards had chosen the architect. What is the contractor's responsibility then? There is no evidence in the record on these points.
x/ Hazard claims that before retaining Edwards, he sent a demand letter via certified mail to S.F. Remodeling, giving the contractor 60 days to resume working on the project or be replaced and held responsible for the cost of completion.
Hazard's testimony in this regard was undermined somewhat by his inability to produce either a copy of the letter or the return receipt verifying delivery thereof. This lack of documentation was exceptional in view of Hazard's otherwise careful record- keeping. While the undersigned does not necessarily disbelieve Hazard, he accepts George's testimony that no such demand letter was received——perhaps because, as George suggested, Hazard had used the wrong address. Viewed against the entirety of the evidence, Hazard's testimony about the demand letter neither strengthened nor weakened the Department's case.
xi/ The undersigned, incidentally, is not condoning such a strategy. But the offense of abandonment is not a catchall for punishing inept business conduct. See Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984). To restate for emphasis a point made earlier, the question for determination is not whether S.F. Remodeling failed to behave commendably, professionally, reasonably, or in compliance with its contract. The question is whether S.F. Remodeling abandoned the job, which is a serious, intentional act of wrongdoing.
xii/ Here, of course, the burden-of-proof issue arises not from the language defining the offense, but from language creating a presumption to assist the Department in proving the
offense. Since, however, the offense is "abandonment" and the presumption permits a finding of the ultimate fact, i.e. "abandonment," the basic facts upon which the presumption rests are functionally equivalent to elements, albeit not exclusive elements, for the Department need not rely upon the presumption in proving abandonment.
xiii/ The provision as quoted in the text was taken verbatim from the Department's Proposed Recommended Order at page 21. It is noted that the 2005 Florida Administrative Code gives the following penalty range for this offense: "First violation,
$250 to $2,000 fine; repeat violation, $2,000 to $5,000 fine." The undersigned presumes that the Department is relying, appropriately, upon an earlier version of the Rule, namely the one that was in effect at the time of the wrongdoing; therefore, he has decided to use the Department's language, which also conforms to the penalties prescribed in § 489.1425(2), Fla.
Stat.
xiv/ Restitution cannot be awarded pursuant to Rule 61G4- 17.001(5). That particular remedy is available only if the aggravating factors set forth in Rule 61G4-17.002(1) are demonstrated to exist. Those factors include monetary or other damage to the licensee's customer in any way associated with the violation, which damage the licensee has not relieved. See Fla. Admin. Code R. 61G4-17.002(1). Here, the Hazards suffered no loss as a result of the notice violation.
Theodore R. Gay, Esquire Department of Business and
Leon E. Sharpe, Esquire Leon E. Sharpe, P. A.
Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and
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.
