vs. ) Case No. 10-7400PL
Respondent. )
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on October 22, 2010, by video teleconference at sites in Miami and Tallahassee, Florida.
Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
On or about June 22, 2009, Petitioner issued a three-count Administrative Complaint alleging that Respondent, in his capacity as the primary qualifying agent for Jaime Quiles Construction, Inc. (JQC), engaged in disciplinable wrongdoing in connection with a residential construction project undertaken by JQC pursuant to a contract with Marienne Cavalier. Count One alleged that "Respondent violated Section 489.129(1)(j), Florida Statutes (2009), by abandoning th[is] construction
project. . . ." Count Two alleged Respondent "commit[ted] mismanagement or misconduct in the practice of contracting that cause[d] financial harm to a customer," in violation of Section 489.129(1)(g)2., Florida Statutes (2009). Count Three alleged that "Respondent violated Section 489.129(1)(i), Florida Statutes (2006), by failing to include in the contract with [Ms.] Cavalier a written explanation of the Florida Homeowners Construction Recovery Fund, as required by Section 489.1425, Florida Statutes (2006)."
By filing a completed "Election of Rights" form with Petitioner, Respondent requested a "formal hearing" before a
DOAH Administrative Law Judge. On August 10, 2010, the matter was referred to DOAH.
As noted above, the final hearing in this case was held before the undersigned on October 22, 2010. Three witnesses testified at the hearing: Marienne Cavalier, Wilfrid Pierre- Louis, and Respondent. In addition, four exhibits (Petitioner's Exhibits 1 through 4) were offered and received into evidence.
At the close of the taking of evidence, the undersigned established a deadline (20 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.
The Transcript of the hearing (consisting of one volume) was filed with DOAH on November 12, 2010.
Petitioner filed its Proposed Recommended Order on November 30, 2010. To date, Respondent has not filed any post- hearing submittal.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Items not specified in this agreement are not part of this contract.
Fees for Permits and other Inspections (if required) are not included in the indicated cost above.
There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes (2006).
JQC commenced work on the Project after the Building Contract was signed by Respondent and Ms. Cavalier.
There were expenses that JQC incurred in connection with the Project that were "unexpected" and "not anticipated," including those related to the demolition work required by the Building Contract.
In addition to doing work required by Building Contract (Project Work), JQC did extra work on the Residence (Extra Work), at Mr. Pierre-Louis's request, resulting in further "additional expenses being incurred that were not [contemplated]
in the original contract." Respondent (acting on behalf of JQC) and Mr. Pierre-Louis verbally agreed that this Extra Work would be undertaken by JQC, but nothing was ever reduced to writing.2
There came a time, after he and his wife had made several payments to JQC, that Mr. Pierre-Louis became dissatisfied with the pace of the JQC's efforts. Mr. Pierre- Louis confronted Respondent and erroneously "accused [Respondent] of stealing the money" he and his wife had paid (instead of using it to do the work JQC had agreed to do on the Residence). In fact, "the money was being spent on the [improvements to the Residence]." Mr. Pierre-Louis "even called the police on [Respondent]." Respondent was interviewed by a police detective, who, following the interview, told Respondent that "this seem[ed] to be a civil case," not a "criminal" matter. No criminal charges were ever filed against Respondent.
To avoid any similar misunderstanding on Mr. Pierre- Louis's part in the future, Respondent told Mr. Pierre-Louis that he and his wife should not give Respondent "a single dollar," but they, instead, should themselves directly pay the workers JQC had working on the job site and also "buy the necessary materials."
In or around June 2009, JQC temporarily stopped working on the Residence because "there wasn't any money available" to pay for labor and materials.
As of the date of the stoppage of work, approximately 50% of the Project Work and Extra Work had been completed, and Ms. Cavalier and Mr. Pierre-Louis had made the following payments for the Project Work and Extra Work: payments by check to JQC and Respondent, totaling $86,478.85; cash payments to Respondent, totaling $1,553.62; payments by check to JQC workers, totaling $7,835.00; cash payments to JQC workers, totaling $3,600.00; $1,000.00 for concrete; $600.00 for tar paper; and $500.00 for plywood.
Respondent explained to Mr. Pierre-Louis that JQC was stopping work on the Residence because the money had "run out," and he assured Mr. Pierre-Louis that JQC would resume the work "whenever [Mr. Pierre-Louis] ha[d] some money available," an assurance that was sincerely made. Mr. Pierre-Louis, in turn, told Respondent that it was his intention to secure the funds necessary to finish the work.
Three months later, when Mr. Pierre-Louis "did get some money," he let Respondent know. JQC thereupon began working on the Residence again (as Respondent had promised it would),3 and it has continued to work on the Residence (doing the Project Work and Extra Work) on an ongoing basis (with
Ms. Cavalier and Mr. Pierre-Louis paying for labor and materials,4 as they had done immediately before the work had stopped). While Ms. Cavalier and Mr. Pierre-Louis have paid the
workers doing the Project Work and Extra Work, these workers have at all times been under Respondent's supervision.
As of the date of the final hearing in this case, at least 90% of the Project Work and Extra Work had been completed.
Undertaking the Project Work and Extra Work has been a money-losing venture for JQC and Respondent.
Petitioner has incurred a total of $297.10 in investigative and prosecutorial costs in connection with the instant case (excluding costs associated with any attorney's
time).
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of the instant proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
No "person"5 may engage in the business of construction contracting in Florida without holding a valid license to do so.
§ 489.115(1), Fla. Stat.
A business organization, like JQC, may obtain such a license, but only through a licensed "qualifying agent."
§ 489.119, Fla. Stat.; see also Murthy v. N. Sinha Corp., 644 So. 2d 983, 984 n.1 (Fla. 1994)("Chapter 489 requires a corporation or other business entity seeking to become a contractor to procure an individual licensed contractor as its qualifying agent."); and Shimkus v. Department of Business and
Professional Regulation, Construction Industry Licensing Board, 932 So. 2d 223, 223-224 (Fla. 4th DCA 2005)("The statute [Section 489.119, Florida Statutes] requires corporations engaged in construction to have licensed individuals serving as their qualifying agents.").
There are two types of "qualifying agents": "primary qualifying agents" and "secondary qualifying agents."
§ 489.1195(1), Fla. Stat. At all times material to the instant case, Respondent was the "primary qualifying agent" for JQC.
"All 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."
§ 489.1195(1)(a), Fla. Stat.; see also § 489.105(4), Fla. Stat. ("'Primary qualifying agent' means a person who . . . has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; ").
"To allow a contractor to be the 'qualifying agent' for a company without placing any requirement on the contractor to exercise any supervision over the company's work done under his
license would permit a contractor to loan or rent his license to the company. This would completely circumvent the legislative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor." Alles v. Department of Professional Regulation, 423 So. 2d 624, 626 (Fla. 5th DCA 1982).
The Construction Industry Licensing Board (Board) may take disciplinary action against a licensed contractor serving as the "primary qualifying agent" for a business organization for violations of Section 489.129(1), Florida Statutes, committed by either "the contractor . . . or business organization for which the contractor is a primary qualifying agent." The contractor "may not avoid responsibility [for any such violation] by stating that he had nothing to do with the project" in connection with which the violation was committed. Hunt v. Department of Professional Regulation, Construction Industry Licensing Board, 444 So. 2d 997, 999 (Fla. 1st DCA 1983); see also Camejo v. Department of Business and Professional Regulation, 812 So. 2d 583, 584 (Fla. 3d DCA 2002)("Camejo's defense in the disciplinary proceeding, and his argument on appeal, is that he cannot be held accountable pursuant to section 489.129, Florida Statutes (1999) for work not performed, or poorly performed, pursuant to building permits
he never signed. We disagree. . . . Section 489.129 does not carve out an exception for qualifying agents who fail to maintain control over the use of their certificates. For this court to do so by judicial fiat would weaken the authority of the Construction Industry Licensing Board to govern the industry and protect the public.").
At the time of the alleged misconduct in the instant case, the disciplinary action the Board was statutorily authorized to take against a licensed contractor for a violation of Section 489.129(1), Florida Statutes, was limited to the following: revoking or suspending the contractor's license; placing the contractor on probation; reprimanding the contractor; denying the renewal of the contractor's license; imposing an administrative fine not to exceed $10,000.00 per violation; requiring financial restitution to the victimized consumer(s); requiring the contractor to take continuing education courses; and assessing costs associated with the investigation and prosecution. See Childers v. Department of Environmental Protection, 696 So. 2d 962, 964 (Fla. 1st DCA 1997)("The version of a statute in effect at the time grounds for disciplinary action arise controls."); and Department of Environmental Regulation 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.").
The Board may take such disciplinary action only after the licensee has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes. See
§ 120.60(5), Fla. Stat.
An evidentiary hearing must be held, if requested by the licensee, when there are disputed issues of material fact.
§§ 120.569 and 120.57(1), Fla. Stat.
At the hearing, the Department of Business and Professional Regulation (Department) bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the charging instrument. Proof greater than a mere preponderance of the evidence must be presented by the Department to meet its burden of proof. Clear and convincing evidence of the licensee's guilt is required.
See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); and § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").
Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . . 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983); see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric
Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether the Department has met its burden of proof, it is necessary to evaluate its evidentiary
presentation in light of the specific allegations of wrongdoing made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Trevisani v. Department of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); Shore Village Property Owners' Association, Inc. v.
Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Marcelin v. Department of Business and
Professional Regulation, 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000).
The charging instrument in the instant case (that is, the Administrative Complaint) contains three counts: Count One, alleging a violation of Section 489.129(1)(j), Florida Statutes (2009); Count Two, alleging a violation of Section 489.129(1)(g)2, Florida Statutes (2009); and Count Three, alleging a violation of Section 489.129(1)(i), Florida Statutes (2006) (by failing to comply with Section 489.1425, Florida Statutes (2006)).
Because of their penal nature, the foregoing statutory provisions must be strictly construed, with any reasonable doubts as to their meaning being resolved in favor of the licensee. See Camejo, 812 So. 2d at 583-584 ("'Statutes such as those at issue authorizing the imposition of discipline upon
licensed contractors are in the nature of penal statutes, which should be strictly construed.'"); and Jonas v. Florida
Department of Business and Professional Regulation, 746 So. 2d 1261, 1262 (Fla. 3d DCA 2000)(same).
At all times material to the instant case, Section 489.129(1)(g)2 and (j), Florida Statutes (2009), provided that the following were disciplinable acts:
(g) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
* * *
2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned; or
* * *
(j) 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.
"Abandoning a construction project" in violation of Section 489.129(1)(j), Florida Statutes (2009), is a lesser
included offense, and an essential element, of the offense described in Section 489.129(1)(g)(2), Florida Statutes (2009). Proof that is insufficient to establish a violation of Section 489.129(1)(j), therefore, is also insufficient to establish a violation of Section 489.129(1)(g)(2).
A contractor "[a]bandon[s] a construction project," as proscribed by Section 489.129(1)(j), Florida Statutes (2009), when it stops working on the project and has no intent to resume its work. Cf. State v. Schultz, 388 So. 2d 1326, 1329 (Fla. 4th DCA 1980)("Abandonment of personal property is the intention to part with the property forever."); Marsh v. Hartley, 109 So. 2d 34, 39 (Fla. 2d DCA 1959)("Temporary absence of the head of the household for reasons of health, pleasure, or business will not deprive the homestead of its protected status, unless there was the aim on his part to forsake it permanently. Nor will temporary rental of the homestead property necessarily impose the status of abandonment where the intent to return is present.")(citations omitted); Mark Crop Insurance v. Roberts, No. 5-970 / 05-1066, 2006 Iowa App. LEXIS 144 *8 (Iowa Ct. App. February 15, 2006)("[I]t cannot be found that plaintiff abandoned its remedies under the common understanding of the word abandon, to give up definitely, forever."); and Commonwealth v. Louisville & N. R. Co., 201 Ky. 670, 673 (Ky.
1924)("To abandon a station is to give it up, never to be used again.").
Because intent is difficult to prove, the Legislature has provided, in Section 489.129(1)(j), Florida Statutes (2009), that abandonment "may be presumed" under certain circumstances, including where the contractor has "fail[ed] to perform work without just cause for 90 consecutive days." Cf. United States v. Orr Water Ditch Co., 256 F.3d 935, 944-45 (9th Cir. 2001)("Abandonment thus requires a showing of subjective intent on the part of the holder of a water right to give up that right. Subjective intent is difficult to prove by direct evidence. Few water-right holders say in front of witnesses, 'I intend to abandon my water rights.' Therefore, indirect and circumstantial evidence must almost always be used to show abandonment. Many states have adopted legal presumptions designed to ease the burden upon the challenger and to increase the likelihood that water will be put to beneficial use. In particular, nearly all western states presume an intent to abandon upon a showing of a prolonged period of non-use. ").
This is not a conclusive presumption; rather, it is one that may be rebutted by the contractor. See § 90.301(2), Fla. Stat. ("Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable."); see also Agency for Health Care Administration v. Associated
Industries, 678 So. 2d 1239, 1254 (Fla. 1996)("Procedural due process, in our view, requires that a defendant be able to rebut a statutory presumption."); Capital City Country Club v. Tucker, 613 So. 2d 448, 452 (Fla. 1993)("If it is reasonably possible to do so, we are obligated to interpret statutes in such a manner as to uphold their constitutionality."); Straughn v. K & K Land
Management, Inc., 326 So. 2d 421, 424 (Fla. 1976)("The test for the constitutionality of statutory presumptions is twofold.
First, there must be a rational connection between the fact proved and the ultimate fact presumed. Second, there must be a right to rebut in a fair manner.")(citations omitted); and Worth v. State, 179 Ga. App. 207, 209-210 (Ga. Ct. App. 1986)("The
instant charge did not employ such language as would imply the existence of a mandatory conclusive presumption The
jury was merely instructed that 'intent may be presumed. '").
Where the Department successfully establishes a prima facie case of abandonment through use of this presumption, the contractor may overcome the effect of the presumption either by presenting proof contradicting the evidence which gave rise to the presumption or by demonstrating that, notwithstanding the existence of the predicate facts on which the presumption is based, there was no abandonment. See Tomlinson v. Department of Health and Rehabilitative Services, 558 So. 2d 62, 66-67 (Fla.
2d DCA 1990)("[A] party who is confronted by a presumption typically has two options. The party can present sufficient evidence to rebut the predicate fact. This overcomes the presumption, but the fact finder may still decide that the ultimate fact is true if there is substantial, competent evidence to support the ultimate fact. In the alternative, the party can present sufficient evidence to disprove the ultimate fact.").
In the instant case, the Department is relying on the presumption allowed by Section 489.129(1)(j), Florida Statutes (2009), to prove the abandonment that is an essential element of both Count One and Count Two of the Administrative Complaint. Specifically, the Department has alleged (in paragraph 10 of the Administrative Complaint) that "Respondent and/or JQC commenced work under the [Building] [C]ontract, but, after approximately June 2009, failed to perform work [on the Residence] without just cause for a period exceeding 90 days."
The record evidence in the instant case, however, is insufficient to warrant application of the presumption permitted by Section 489.129(1)(j), Florida Statutes (2009). The record does indisputably establish that, as the Department has alleged, after approximately June 2009, JQC "fail[ed] to perform work [on the Residence] . . . for 90 consecutive days." Absent from the record, though, is clear and convincing evidence that this
"fail[ure] to perform" was "without just cause." As Respondent credibly testified at the final hearing, JQC did not do any Project Work or Extra Work during this period of time because there was no more money available to pay for the needed labor and materials, a circumstance the record evidence does not clearly and convincingly establish was the fault of JQC (or Respondent). Such being the case, it cannot be said that the Department's proof is sufficient to show that JQC's "fail[ure] to perform" was "without just cause." See Department of
Professional Regulation, Florida Construction Industry Licensing Board, v. Euske, No. 80-479, 1981 Fla Div Adm Hear. LEXIS 4176
**10-11 (Fla. DOAH February 2, 1981)(Recommended Order) ("Insufficient evidence was offered to establish that Respondent abandoned a construction project as alleged in the Administrative Complaint. The evidence reveals that Respondent presented the project owners with cost analysis and breakdown schedules and requested that they make a compromise based on rising construction costs and unforeseen circumstances to no avail. The evidence reveals that Respondent's requests for cost adjustments in this regard were reasonable and were not without notification or without just cause as alleged. Therefore, no basis exists to support a conclusion that Respondent's separation from the projects involved herein constitute an
abandonment as defined in Section 468.112(2)(h) (presently Section 489.129(1)(k), Florida Statutes (1979).").
Moreover, even if the Department had demonstrated that it was entitled to the benefit of Section 489.129(1)(j)'s presumption of abandonment in making its case against Respondent (which it did not), any such presumption would have been, in any event, effectively rebutted by the showing Respondent made through his testimony at hearing (which the undersigned has credited) that JQC, throughout the period of its "fail[ure] to perform," had every intention of returning to the job site to resume work "whenever [Mr. Pierre-Louis] ha[d] some money available." There having been no intent to permanently discontinue the Project Work and Extra Work, there was no abandonment, within the meaning of either Section 489.129(1)(j), Florida Statutes, or Section 489.129(1)(g)(2), Florida Statutes.
In light of the foregoing, Counts One and Two of the Administrative Complaint, which allege violations of Section 489.129(1)(j), Florida Statutes, and Section 489.129(1)(g)(2), Florida Statutes, respectively, must be dismissed.
At all times material to the instant case, Section 489.129(1)(i), Florida Statutes (2006), provided that the following was a disciplinable act:
Failing in any material respect to comply with the provisions of this part or
violating a rule or lawful order of the board.
At all times material to the instant case, the "[f]ail[ure] in any material respect to comply with the [following] provisions" of Section 489.1425(1), Florida Statutes (2006), constituted wrongdoing of the type described in Section 489.129(1)(i), Florida Statutes (2006):
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 written statement must be substantially in the following form:
FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND
PAYMENT MAY BE AVAILABLE FROM THE FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A LICENSED CONTRACTOR. FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE NUMBER AND ADDRESS:
The statement shall be immediately followed by the board's address and telephone number as established by board rule.
Subsection (2) of Section 489.1425 provided that such wrongdoing was punishable as follows:
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.
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.
The record evidence clearly and convincingly establishes, and Respondent does not dispute that, as alleged in Count III of the Administrative Complaint, JQC failed to comply with Section 489.1425,Florida Statutes, and thereby committed a violation of Section 489.129(1)(i), Florida Statutes, for which Respondent, as JQC's "primary qualifying agent," was responsible.
In determining what disciplinary action should be taken against Respondent for this violation of Section 489.129(1)(i), Florida Statutes, it is necessary to consult the Board's "disciplinary guidelines" set forth Florida Administrative Code Chapter 61G4-17, which impose restrictions and limitations on the exercise of its disciplinary authority. See Parrot Heads, Inc. v. Department of Business and
Professional Regulation, 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties."); and
§ 455.2273(5), Fla. Stat. ("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."); cf. State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and regulations, duly promulgated under the authority of law, have the effect of law."); Buffa v. Singletary, 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency must comply with its own rules."); Decarion v. Martinez, 537 So. 2d 1083, 1084 (Fla. 1st 1989)("Until amended or abrogated, an agency must honor its rules."); and Williams v. Department of Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
In Florida Administrative Code Rule 61G4-17.001, the Board has announced the "[n]ormal [p]enalty [r]anges" within which its disciplinary action against contractors will fall, absent aggravating or mitigating circumstances, for specified violations.
At all times material to the instant case, Florida Administrative Code Rule 61G4-17.001 has provided, in pertinent part, that for a "first offense" of Section 489.129(1)(i), Florida Statutes, by failing to comply with Section 489.1425, Florida Statutes,6 a violator could expect, absent aggravating or mitigating circumstances, to receive a penalty ranging from a
"minimum" of a "$250 fine" to a maximum of a "$500 fine." Fla. Admin. Code R. 61G4-17.001(1)(i)4. The rule has also, among other things, given notice of the Board's additional authority to "assess the costs of investigation and prosecution." Fla.
Admin. Code R. 61G4-17.001(4).
Florida Administrative Code Rule 61G4-17.002 lists "[a]ggravating and [m]itigating circumstances" to be considered in determining whether a departure from the "[n]ormal [p]enalty [r]ange" is warranted in a particular case.7 At all times material to the instant case, these "[a]ggravating and [m]itigating circumstances" have included the following:
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.)
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.
The danger to the public.
The number of complaints filed against the licensee.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
The effect of the penalty upon the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
Having considered the facts of the instant case in light of the pertinent and applicable provisions of Florida Administrative Code Chapter 61G4-17, it is the view of the undersigned that the appropriate disciplinary action that should be taken against Respondent in the instant case for his violation of Section 489.129(1)(i), Florida Statutes, is to fine him $375.00 and order him to reimburse the Department for investigative and prosecutorial costs related to such violation.
(1) dismissing Counts One and Two of the Administrative Complaint; (2) finding Respondent guilty of violating Section 489.129(1)(i), Florida Statutes, by failing to comply with Section 489.1425, Florida Statutes, as alleged in Count III of the Administrative Complaint; (3) fining him $375.00 for having
committed this violation; and (4) ordering him to reimburse the Department for investigative and prosecutorial costs related to this violation.
DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2010.
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2010).
2 That these agreements were verbal in no way detracts from their validity. See J. Lynn Construction, Inc. v. Fairways at Boca Golf, 962 So. 2d 928, 931 (Fla. 4th DCA 2007)("Written contracts can be modified by subsequent oral agreement of the parties even though the written contract purports to prohibit such modification."); Beach Higher Power Corp. v. Granados, 717 So. 2d 563, 565 (Fla. 3d DCA 1998)("The law has clearly been established that a written contract may be modified by a subsequent oral agreement or subsequent conduct of the parties, even though the written contract purports to prohibit such modification."); Pan Am Engineering Co. v. Poncho's Construction Co., 387 So. 2d 1052, 1053 (Fla. 5th DCA 1980)("There is solid support for the principle that written contracts can be modified
by subsequent oral agreement of the parties, even though the written contract purports to prohibit such modification."); and Doral Country Club, Inc. v. Curcie Brothers, Inc., 174 So. 2d 749, 750-751 (Fla. 3d DCA 1965)("Changes and additions were undertaken without compliance with the preliminary written request or drawings as provided for in the contract. There is ample evidence that such action was mutually acceptable and was agreed upon. Appellants contend, however, that the requirement for written consent to the additions could not be waived and the contract thus changed, by oral agreement. We reject that contention here. The subsequent course of dealing between the parties established a waiver of the provision that authorization for extras or additions should be written.").
3 Respondent himself personally did work on the job site on October 19, 2009. On that date, he "moved the trash," "put [up a] fence," and installed "the back door [on the addition]."
4 On occasion, Respondent has purchased materials for the Project Work and Extra Work with money out of his own pocket, without getting reimbursed.
5 A "person," as that term is used in Florida Statutes, "includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations." § 1.01(3), Fla. Stat.
6 There is no record evidence that Respondent has been previously disciplined by the Board.
7 With respect to violations of Section 489.129(1)(i), Florida Statutes, resulting from a failure to comply with Section 489.1425, Florida Statutes, only a downward departure is possible for a first violation, given that Section 489.1425 provides that the Board may only impose a fine of "up to $500" for such a violation.
G. W. Harrell, 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.
