STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

JACK V. ORGANO, )

)

Respondent. )

Case Nos. 11-0244PL

11-0245PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases on February 16, 2011, by video teleconference with sites in Tallahassee and Fort Myers, Florida, before Susan B. Harrell, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kyle Christopher, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Jack Organo, pro se

4535 Southwest Second Avenue Cape Coral, Florida 33904

STATEMENT OF THE ISSUES

The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be

imposed.

PRELIMINARY STATEMENT

On September 3, 2010, Petitioner, Department of Business and Professional Regulation (Department), filed an Administrative Complaint dated August 24, 2010, against Respondent, Jack V. Organo (Mr. Organo), alleging that

Mr. Organo violated sections 489.129(1)(i), 489.129(1)(o),

and 489.1425. Mr. Organo requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings (DOAH) on January 13, 2011, and was assigned Case

No. 11-0244PL.

On December 12, 2010, the Department filed an Administrative Complaint dated November 30, 2010, against Mr. Organo, alleging that Mr. Organo violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425. Mr. Organo

requested an administrative hearing. The case was forwarded to DOAH on January 13, 2011, and was assigned Case No. 11-0245PL.

By Order dated January 31, 2011, the cases were consolidated.

At the final hearing, the Department called the following witnesses: John McConnell, Christopher Bevan, Jean Walker, Sharon Reynolds, and David Crabtree. Petitioner's Exhibits 1 through 5 and 7 through 10 were admitted in evidence. At the final hearing, Mr. Organo testified in his own behalf and presented no exhibits.

The one-volume Transcript was filed on March 10, 2011. The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. The Department timely filed its Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. As of the date of the filing of this Recommended Order, Mr. Organo has not filed any post-hearing submittal.

FINDINGS OF FACT

1. At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints,

   Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine).

2. On or about September 29, 2007, Jean Walker

   
   

   (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor

   
   

   would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine.

3. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund.

4. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved.

5. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed.

6. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed.

7. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell

   
   

   Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements.

8. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker.

9. Bennett Marine commenced work on the tiki hut without obtaining a building permit.

10. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine.

11. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund.

12. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a

    
    

    cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine.

13. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).

15. The Department has the burden to establish the allegations in the administrative complaints by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). The Department has alleged that Mr. Organo violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425.

    
    

    16. Sections 489.129(1)(i) and 489.129(1)(o) provide:

    
    

    1. 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 or registration, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $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:

* * *

(i) Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.

* * *

(o) Proceeding on any job without obtaining applicable local building department permits and inspections.

1. Section 489.1425 provides:

   
   

   1. 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.

      
      

2. Section 489.1195(1)(a) provides:

   
   

   1. A qualifying agent is a primary qualifying agent unless he or she is a secondary qualifying agent under this section.

      
      

      1. 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.

         
         

         As the primary qualifying agent for Bennett Marine, Mr. Organo would be responsible for the alleged violations, if those allegations are proven.

3. The Department has established by clear and convincing evidence that Mr. Organo violated section 489.1425 by failing to provide in both the Walker contract and the Bevan contract the required statement explaining the consumer's rights under the

   
   

   Florida Homeowners' Construction Recovery Fund. By violating section 489.1425, Mr. Organo has violated section 489.129(1)(i).

4. The Department has established by clear and convincing evidence that Mr. Organo violated section 489.129(1)(o) as it related to the Walker contract. He began working on the Walker contract sometime between October 24, 2007, and February 2008, when the tiki hut was completed. At no time during that period was a building permit issued for the tiki hut.

5. The Department has established by clear and convincing evidence that Mr. Organo violated section 489.129(1)(o) as it related to the Bevan contract. Mr. Organo began work pursuant to the Bevan contract on March 17, 2009, and continued working until March 25, 2009. Mr. Organo did not apply for a building permit for the work for the Bevan contract until April 1, 2009. At no time between March 17, 2009, and March 25, 2009, did

   Mr. Organo have a building permit for the work for the Bevan contract.

6. Florida Administrative Code Rule 61G4-17.001(1)(i)4. provides that the penalty range for failing to advise consumers of their rights under the Florida Homeowners' Construction Recovery Act is from a minimum of $250 to $500. There was no evidence that Mr. Organo had previous disciplinary action taken against him prior to the cases at issue; therefore, a fine of

   
   

   $250 each for the Walker contract and Bevan contract is reasonable.

7. Rule 61G4-17.001(1)(o)3. provides that the penalty range for having a job finished with no permit ranges from a

   $1,000 fine to a $5,000 fine and/or probation. For the Walker contract, Mr. Organo was on notice that a permit was required for the tiki hut, because he had originally applied for one. He failed to get a permit and instead relied on a subcontractor to pull the permit. When Lee County kept requiring the tiki huts to be torn down, Mr. Organo should have become aware that no permit had been pulled. For the Walker contract, a reasonable penalty is a fine of $3,000 and probation for two years.

8. For the Bevan contract, Mr. Organo did not complete the job and did not obtain a permit as required by the contract. Mr. Organo was not charged with failing to complete the job, only with starting work without getting a permit. For the Bevan contract, a reasonable penalty is a fine of $1,500 and probation for one year.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to

advise the owners of the recovery fund; imposing a fine of

$3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract.

DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.

ENDNOTES

1/ Except for the deletion of the term "certificate of authority" in the 2009 version, the provisions of sections 489.129(1)(i), 489.129(1)(o), and 489.1425 are the same for both the 2007 and the 2009 versions of the Florida Statutes. Unless otherwise indicated, all references to the Florida Statutes are to the 2009 version.

2/ Mr. Organo was under the impression that he was required to use Seminole Indians to build a tiki hut.

COPIES FURNISHED:

Kyle Christopher, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Jack Organo

4535 Southwest Second Avenue Cape Coral, Florida 33904

Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 11-000244PL

Orders for Case No: 11-000244PL