DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )
vs. )
Respondent. )
Case No. 10-9213PL
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge
Thomas P. Crapps, held a formal hearing in the above-styled case on November 12, 2010, by video teleconference with sites in Tallahassee, Florida, and Fort Myers, Florida.
Whether Respondent violated section 489.129(1)(j), Florida Statutes (2005),1 by abandoning a construction project, and, if so, the appropriate discipline; and
Whether Respondent violated section 489.129(1)(i) by virtue of her violation of section 489.127(1)(f), which prohibits engaging in the business or acting in the capacity of a contractor without being licensed, and, if so, the appropriate discipline.
On July 13, 2009, Petitioner, Department of Business and Profession Regulation, Construction Industry Licensing Board (Department), filed a two-count Administrative Complaint in the Department's Case No. 2008-049327 against Respondent,
Chandra Beth Curbelo (Ms. Curbelo). The Administrative Complaint alleged that Ms. Curbelo violated section 489.129(1)(j), abandoning a construction project, and that Ms. Curbelo violated section 429.129(1)(i) by virtue of her
violation of section 489.127(1)(f), engaging in the business or acting in the capacity of a contractor without being licensed.
Ms. Curbelo disputed the charges in the Administrative Complaint and elected to have a formal administrative hearing. The Department forwarded the case to the Division of
Administrative Hearings for a hearing pursuant to section 120.57(1), Florida Statutes (2010).
On October 1, 2010, a Notice of Hearing was entered, and the case was set for hearing on November 12, 2010.
The November 12, 2010, hearing was conducted by video teleconference between Tallahassee and Fort Myers, Florida, locations before Administrative Law Judge Thomas P. Crapps. At the hearing, the Department presented the testimony of Raymond Torres (Mr. Torres) and Ms. Curbelo and introduced five exhibits, Petitioner's Exhibits 1 through 4 and 6, into evidence. Ms. Curbelo presented the testimony of Mr. Luis Curbelo, and herself, and introduced Respondent's Exhibits 1 through 4 into evidence.
On December 6, 2010, a one-volume Transcript of the proceedings was filed. On December 15, 2010, the Department submitted a Proposed Recommended Order. Ms. Curbelo did not file a proposed recommended order.
Ms. Curbelo is a certified building contractor, doing business as A+ Construction & Management, Inc. The Florida Construction Industry Licensing Board issued Ms. Curbelo License No. CBC 1255321 on March 12, 2007. She is currently licensed as the qualifying agent of A+ Construction & Management, Inc., and
she was issued qualified business organization certificate of authority License No. QB53665.
Before March 12, 2007, Ms. Curbelo was not licensed pursuant to chapter 489, Part I, to practice construction contracting.
In December 2005, Ms. Curbelo purchased A+ Construction & Remodeling, Inc., and became its sole corporate officer. She renamed the entity A+ Construction & Management, Inc.
(A+ Construction).
Before March 12, 2007, A+ Construction was not duly licensed pursuant to chapter 489, Part I. Further, its predecessor, A+ Construction & Remodeling, Inc., was never duly licensed pursuant to chapter 489, Part I.
On January 25, 2006, Mr. Torres was provided a proposal from Ms. Curbelo, doing business as A+ Construction & Remodeling, Inc. The proposal was to remodel, renovate, and repair
Mr. Torres' home located at 1031 Hunting Lodge Drive, Miami Springs, Florida 33166. On January 27, 2006, Mr. Torres accepted the proposal, and it formed the agreement between Ms. Curbelo and Mr. Torres. Mr. Torres made an initial payment of $24,900.00 to A+ Construction on February 6, 2006, which was due under the contract upon acceptance.
The agreed contract price for the work was $166,000.00.
The contract contained a description of the work to be completed
and a draw schedule that provided for payment as the work progressed.
Mr. Torres made payments to A+ Construction for the time period of February 8, 2006, through April 10, 2007. The payments totaled $157,700.00 and corresponded with a majority of the work contracted to be completed under the contract. The only draw that Mr. Torres did not pay was in the amount of $8,300.00 that was due "upon completion" of the work.
Mr. Torres credibly testified that he paid
A+ Construction for work that had not been completed in order to move the job along to completion. Furthermore, Mr. Torres credibly testified that when he would question Mr. Luis Curbelo, the job-site foreman, about the status of the work, Mr. Curbelo would threaten to walk off the job.
Mr. Torres identified a check, Petitioner's Exhibit 6, that he made payable to First Call Roofing dated August 23, 2007, in the amount of $5,000.00. Mr. Torres explained that he paid First Call Roofing because he was desperate to get his leaking roof repaired. Mr. Torres paid this amount even though he had previously paid A+ Construction for repairs to the roof as part of the contract.
The evidence also showed that during the work,
Mr. Torres requested change orders which were not part of the original contract. Although these change orders increased the
costs above the original contract, it was not disputed that
Mr. Torres fully paid A+ Construction for all of the work outside of the contract.
Sometime in late August 2007, A+ Construction stopped work on the job and failed to return.
Mr. Torres credibly testified that he had an estimate from another contractor that the construction job was left approximately 40 percent completed and that it would cost an estimated amount of $108,000.00 to complete the job. The Department, however, did not introduce any non-hearsay evidence to support the estimate to complete the work or the costs to complete the construction.
After A+ Construction stopped work on the job,
Mr. Torres testified that he called in a series of inspections and that his home had passed the inspections. He stated that a majority of the inspections had been called in by him.
Ms. Curbelo and Mr. Luis Curbelo offered the following three explanations for why A+ Construction stopped work on
Mr. Torres' house: first, Mr. Torres failed to approve a payment draw concerning installation of windows; second, Mr. Torres' construction job included work for which Mr. Torres had not paid; and finally, Mr. Torres attempted to undercut A+ Construction by directly dealing with its subcontractors. None of these offered reasons is supported by the evidence.
The record clearly showed that Mr. Torres made all of the payments required under the contract, except the final draw of $8,300.00, which was due on completion of the job. Consequently, under the contract, Mr. Torres had fully paid, including amounts for windows, all amounts that were owed under the contract when A+ Construction abandoned the job. The final draw was not due until completion, and A+ Construction had not completed the job. Next, the record clearly shows that
Mr. Torres paid for all change orders. Therefore, the record does not support Ms. Curbelo's claim that A+ Construction stopped work because of non-payment. Finally, the record clearly showed that Mr. Torres contracted with the roofing subcontractor to do work that A+ Construction had been paid to do, but had not done. Thus, the evidence did not support the contention that A+ Construction had stopped work because Mr. Torres attempted to undercut them by dealing with the subcontractors.
The record clearly shows that Ms. Curbelo, doing business as A+ Construction, abandoned the construction job.
Next, the record does not support the claim that the building inspections showed that 85 percent of the remodeling had been completed on the job and that work stopped because of
Mr. Torres' non-payment. Considering that Ms. Curbelo stopped work in August 2007, a review of the building inspections shows that many of the inspections occurred after she abandoned the
job. None of the inspections shows the percentage of work completed by A+ Construction.
Finally, the record does not support Ms. Curbelo's testimony that Mr. Torres was aware that at the time of entering into the contract that she did not have a contractor's license and that the job was under the supervision of Joe Anon
(Mr. Anon). Ms. Curbelo testified that Mr. Torres was aware the Mr. Anon would be the general contractor, as his name was on the January 25, 2006, contract. Interestingly, the document that Ms. Curbelo relies upon for her testimony is a proposal dated January 25, 2006, from A+ Construction & Management, Inc. This document is nearly identical to the 11-page proposal from the
A+ Construction & Remodeling, Inc., to Mr. Torres on the same date for the repairs to the home. However, two important differences are found on the faces of the two exhibits. On Respondent's Exhibit 2, under the logo of "A+ Construction" are the terms "& Management, Inc. For Joe Anon, GC." In contrast,
Petitioner's Exhibit 3 shows the logo of "A+ Construction & Remodeling" with no reference to the later company or
Mr. Anon's name. Both of these exhibits purport to be from the same proposal given to Mr. Torres on the same day. Yet, out of the composite exhibit of 12 pages, only Ms. Curbelo's offered document contains Ms. Curbelo's subsequent company's name or reference to Mr. Anon. Moreover, unlike the Department's
exhibit, the exhibit offered by Ms. Curbelo is unsigned by
Mr. Torres. Consequently, the document offered by Ms. Curbelo is untrustworthy. Thus, the undersigned rejects as unbelievable
Ms. Curbelo's claims that Mr. Torres knew that she was not a licensed general contractor and that the construction project was being overseen by a licensed contractor.
Mr. Torres credibly testified in rebuttal that he did not meet Mr. Anon until after Ms. Curbelo abandoned the job. Further, Mr. Torres credibly testified that his "biggest mistake was paying ahead" to get work completed.
The Department's total investigative costs of this case, excluding attorney's fees, is $414.57.
The evidence showed that Ms. Curbelo does not have any prior disciplinary actions against her license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to section 120.57, Florida Statutes (2010).
The Department is the state agency charged with regulating the practice of contracting pursuant to section 20.165 and chapters 455 and 489.
Pursuant to section 489.129, the Department 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).
The Department has the burden of proving by clear and convincing evidence the allegations against Ms. Curbelo.
§ 120.57(1)(j), Fla. Stat. (2009); Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); and Ferris v.
Turlington, 510 So. 2d. 292 (Fla. 1987). Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA 1989), provides the following guidance regarding the clear and convincing evidence standard:
That standard has been described as follows:
. . . [C]lear 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 evidence 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 the firm belief of [sic] conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Count I of the Administrative Complaint charged
Ms. Curbelo with violating section 489.129(1)(j), which provides in relevant part, the following:
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:
* * *
(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.
The Department has proven by clear and convincing evidence that Ms. Curbelo violated section 489.129(1)(j) by abandoning the construction project. The facts clearly showed that Ms. Curbelo abandoned the construction job in late
August 2007 and did not return to finish the work. Further, the facts clearly showed that Mr. Torres had paid for all of the draws contemplated by the construction draw schedule, with the exception of the last draw which was due upon completion.
Count II of the Administrative Complaint charges
Ms. Curbelo of violating section 489.129(1)(i) by virtue of her
violating section 489.127(1)(f). Section 489.19(1)(i) provides that it is a violation for:
(i) Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.
Section 489.127(1)(f) provides:
No person shall:
* * *
(f) Engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified or having a certificate of authority; . . .
Section 489.105(3) and (6) defines the terms "Contractor" and "Contracting." Specifically, the statute provides, in pertinent part, that:
(3) "Contractor" means the person who is qualified for, and shall only be 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.
* * *
(6) "Contracting" means, except as exempted in this part, engaging in business as a contractor and includes, but is not limited to, performance of any of the acts as set forth in subsection (3) which define types of contractors. The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting. If the services offered require licensure or agent qualification, the offering, negotiation for a bid, or attempted sale of these services requires the corresponding licensure. However, the term "contracting" shall not extend to an individual, partnership, corporation, trust, or other legal entity that offers to sell or sells completed residences on property on which the individual or business entity has any legal or equitable interest, if the services of a qualified contractor certified or registered pursuant to the requirements of this chapter have been or will be retained for the purpose of constructing such residences.
Section 489.113 requires that a person engaging in contracting be certified and registered with the Department.
Section 489.13(3) provides that the Department may impose an administrative fine of up to $10,000.00 on any unlicensed person guilty of unlicensed contracting and may access reasonable investigative and legal costs for prosecution of the violation.
The Department has proven by clear and convincing evidence that Ms. Curbelo violated section 489.127(1)(f) and (i) by engaging in the practice of construction prior to her being issued a license. The facts clearly show that Ms. Curbelo,
through A+ Construction, entered into the construction contract before she was licensed and worked on Mr. Torres' home for one year as an unlicensed contractor.
The disciplinary action authorized under chapter 489 includes placing the license on probation, reprimanding the licensee, revoking, suspending, or denying the issuance or renewal of the certificate or registration, requiring financial restitution to the consumer, imposing an administrative fine not to exceed $10,000.00 per violation, or requiring continuing education and assessing costs associated with the investigation and prosecution.
Section 455.2273(5) provides that the Administrative Law Judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the Department and must state, in writing, the mitigating or aggravating circumstances upon which the recommended penalty is based.
Florida Administrative Code Rule 61G4-17.001 provides a range of penalties for violations of chapter 489. Specifically, Florida Administrative Code Rule 61G4-17.001 provides for a first offense of violating section 489.129(1)(j), a minimum range of $2,500.00 administrative fine and/or probation to a maximum $7,500.00 fine and/or probation, or suspension.
Florida Administrative Code Rule 61G4-17.001 does not specifically make a recommendation of a penalty for violating section 489.127(1)(f). However, Florida Administrative Code Rule 61G4-17.001 provides that that in determining a range for violating section 489.129(1)(i), the recommended penalty should be the one "most closely resembling the act underlying the local discipline." The penalty for violating section 489.129(1)(d), which is a prohibition against assisting unlicensed persons to evade the provision of chapter 489, closely resembles the charge here. In both instances, a person is contracting without a license. The recommended penalty for violating section 489.129(1)(d) is a $2,500.00 fine and/or probation up to a
$10,000.00 fine and revocation, or suspension.
Further, in determining the appropriate discipline, Florida Administrative Code Rule 61G4-17.002 provides, in pertinent part, the following:
Circumstances which may be considered for the purpose of mitigation or aggravation of penalty shall include, but are not limited to, 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 being 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.
There is no evidence that Ms. Curbelo has any prior disciplinary record under chapter 489 or chapter 455, or that she has held her license for a short period of time.
The Department did not bring forward non-hearsay evidence to show the monetary damages to Mr. Torres' home or the extent of work that would be needed to complete the construction
job.
There was no evidence of actual job-site violations of
building codes, conditions exhibiting gross negligence, or incompetence by Ms. Curbelo.
The unlicensed practice of contracting is a serious offense, and the penalty should be one that deters individuals from engaging in the business of unlicensed contracting.
RECOMMENDED that a final order be issued by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board:
DONE AND ENTERED this 5th day of January, 2011, in Tallahassee, Leon County, Florida.
THOMAS P. CRAPPS
Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2011.
1/ All references to Florida Statutes are to the 2005 version, unless otherwise designated.
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.
