The Issue Whether Florida Administrative Code Rule 15C-16.012(5)1/ (the “Rule”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The following findings of fact are based on the testimony and exhibits admitted at the final hearing and the agreed facts in the pre-hearing stipulation. Parties Petitioner, FADA, is a not-for-profit trade association of licensed franchise motor vehicle dealers in Florida. FADA is organized and maintained for the benefit of approximately 800 members, which includes 85 to 90 percent of the licensed franchise motor vehicle dealers in Florida. FADA regularly coordinates the common interests of its members and represents its members before the Legislature with respect to legislation and rules affecting franchised dealers. Respondent, the Department, is the agency of the State of Florida responsible for regulating electronic filing system (“EFS”) and the EFS agents. The Department adopted the Rule, which became effective December 14, 2010. The Rule was amended on November 22, 2011, but has not been amended since that time. Titling and Registration of Vehicles Every motor vehicle that is to be driven on a road in Florida must be registered with the Department. § 320.02(1), Fla. Stat. The initial registration a customer receives may either be temporary or permanent. If the initial registration is temporary, there is a period of 30 days during which the temporary registration must be converted to a permanent registration. In Florida, sellers of motor vehicles are required to effect transfers of title and registration as part of a sale of motor vehicles. The EFS provides an electronic method for the titling and registration of motor vehicles. EFS agents are those persons or entities who are engaged in selling products for which a title or registration is needed. Fla. Admin. Code R. 15C-16.010(1)(a) and (b). A substantial number of FADA’s members are EFS agents. The EFS was developed in the 1990s to permit dealers to make titling and registration more efficient. The system also enhanced safety during a roadside stop for law enforcement by making registration information readily available. At the beginning of the process, an EFS agent, who could be a motor vehicle dealer, like the members of FADA, sells a vehicle and electronically submits information through the EFS to a Certified Service Provider (“CSP”). The CSP provides the software system that is used by EFS agents to submit titling and registration transactions for processing. Tax collectors are also part of the process and are responsible for preparing the paperwork that is submitted to finalize a titling or registration transaction. Some tax collectors outsource these responsibilities to private entities, which function as private tag agents (“PTAs”). While the EFS is a comprehensive method to electronically file vehicle title and registration transactions, there is also a limited sub-system of the EFS, Electronic Temporary Registration (“ETR”). The ETR is limited to temporary registration of vehicles. It does not involve titling. There are multiple methods for submitting the necessary paperwork for titling and/or registering a motor vehicle. This can be done manually by taking it to a public or private tag agency, and electronically by using the ETR and the EFS or the EFS only. EFS agents are subject to statutes and rules pertaining to titling and registration of motor vehicles in Florida. Rule and Statutory Authority The rule at issue in this case concerns the Department’s authority over the EFS. The Rule, 15C-16.012(5), provides: If an EFS agent charges a fee to the customer for use of the electronic filing system in a title or registration transaction, the fee shall be disclosed separately and in a clear and conspicuous manner in the sales agreement along with the other options for titling and registration. The EFS agent may not disclose or disguise this as a State or Government fee. The Rule requires that an EFS agent charging a fee to use the EFS, disclose the EFS filing fee separately and in a clear and conspicuous manner and provide other options for titling and registration. The Rule cites section 320.03(10)(a), Florida Statutes, as the law being implemented. Section 320.03(10) provides: Jurisdiction over the electronic filing system for use by authorized electronic filing system agents to electronically title or register motor vehicles, vessels, mobile homes, or off-highway vehicles; issue or transfer registration license plates or decals; electronically transfer fees due for the title and registration process; and perform inquiries for title, registration, and lienholder verification and certification of service providers is expressly preempted to the state, and the department shall have regulatory authority over the system. The electronic filing system shall be available for use statewide and applied uniformly throughout the state. An entity that, in the normal course of its business, sells products that must be titled or registered, provides title and registration services on behalf of its consumers and meets all established requirements may be an authorized electronic filing system agent and shall not be precluded from participating in the electronic filing system in any county. Upon request from a qualified entity, the tax collector shall appoint the entity as an authorized electronic filing system agent for that county. The department shall adopt rules in accordance with chapter 120 to replace the December 10, 2009, program standards and to administer the provisions of this section, including, but not limited to, establishing participation requirements, certification of service providers, electronic filing system requirements, and enforcement authority for noncompliance. The December 10, 2009, program standards, excluding any standards which conflict with this subsection, shall remain in effect until the rules are adopted. An authorized electronic filing agent may charge a fee to the customer for use of the electronic filing system. Section 320.03(10) gives the Department regulatory authority over the EFS and requires the Department to adopt rules to administer the EFS. The statute also requires that the Department adopt rules to replace the 2009 program standards. Section 320.03(10) also explicitly provides that an EFS agent is permitted to charge a fee to the customer for use of the EFS. However, there is no requirement in the statute that an EFS agent satisfy any conditions when charging the fee. Specifically, the statute does not require that the EFS agent make any type of disclosure regarding the fee or other options for titling or registration. 2009 Program Standards Respondent relies upon the language in the statute related to replacement of the 2009 program standards to support its position that section 320.03(10) provides authority for the Rule. Over the course of legislative sessions in 2009 and 2010, the regulatory authority for the EFS was transferred from the Florida Tax Collectors Service Corporation (“FTCSC”) to the Department as provided in section 320.03(10). The 2009 program standards were a set of standards used by the FTCSC for administering participation in the EFS when the FTCSC had responsibility for administering the EFS. The 2009 program standards were to remain in place until adoption of the Rule. The 2009 program standards expressly regulated certain participation requirements placed upon dealers seeking to become an approved Limited Branch Office (“LBO”), which is the equivalent of an EFS agent. One of the 2009 program standards required that dealers seeking “appointment as a participating LBO” must submit a letter agreeing to comply with certain disclosure requirements as part of a sale, including the contents of a buyer’s order. The “buyer’s order” referenced in the 2009 program standards has the same meaning in the industry as the term “sales agreement” in rule 15C-16.012(5). Under the 2009 program standards, failure of a dealer to adhere to the standards could result in loss of its LBO status. The relevant portions of the LBO participation requirements are discussed further below. Section III.A.2.a. of the 2009 program standards provided that the letter requesting approval for LBO status shall include a statement that use of the EFS will be an optional transaction and will be disclosed on the buyer’s orders as “Electronic Filing.” Similarly, section V.C.2.(d)4.b.ii. provided that a dealer’s application for LBO status may be rejected if the letter provided to the tax collector does not mention the information required in section III.A.2.a. Section III.A.2.c. provided that a dealer seeking LBO status must include in their letter to the tax collector a statement that the dealer will not represent to the EFS customers that they are required to transact title transaction business through the EFS. Likewise, section V.C.2.(d)4.b.iv. provided that a dealer’s application for LBO status may be rejected if the dealer’s letter does not include a statement that the dealer agrees not to represent to potential EFS customers that the customer is required to transact title transaction business through the EFS and pay additional charges, if applicable. The undersigned finds that these requirements of the 2009 program standards required dealers utilizing the EFS at that time to make certain disclosures for the purpose of participation as an LBO. The disclosure of fees charged to customers for use of the EFS system was not addressed in the 2009 program standards. In fact, the 2009 version of section 320.03(10) provided that a dealer “may charge a fee to the customer for use of the electronic filing system, and such fee is not a component of the program standards.” § 320.03, Fla. Stat. (2009). Different Methods for Titling and Registration In addition to the requirement to disclose the fee for use of the EFS, the Rule requires EFS agents to disclose “other options for titling and registration.” In the motor vehicle industry, there are multiple methods for titling and registration. Dealers can deal directly with county tax collectors for titling and registration, which is performed manually. Dealers can use ETR vendors for the temporary registration process. Like with the EFS, the ETR providers charge dealers a fee for use of the ETR system. A dealer that has a contract with one of the PTAs in Florida can use that PTA to process components of the titling and registration process. PTAs are entities that dealers may hire as a service provider to process registration and titling work manually. Like with EFS providers and ETR providers, PTAs charge dealers a fee for the services they provide in the titling and registration process. Given that dealers must have contracts with PTAs in order to utilize their services and that PTAs charge dealers a fee for use of their services, a dealer using a PTA for components of the titling and registration processes is not the same as a dealer interacting directly with a county tax collector. The multiple methods for titling and registration could result in multiple options for EFS agents. Uncertainty about Meaning of “Other Options” During and after the rulemaking process, Mr. Smith, the president of FADA, expressed concern about the interpretation of the requirement in the Rule to disclose “other options for titling and registration.” Mr. Smith sent a number of emails seeking clarification regarding this requirement. On December 8, 2010, Mr. Smith sent an email on behalf of FADA to Julie Baker at the Department inquiring whether the Rule meant that a dealer would have to disclose all the potential options available in the marketplace or only those options available to that particular dealer. On December 19, 2010, Mr. Smith received a response from Boyd Walden, the Department’s then chief of the Bureau of Titles and Registrations, stating that a legal opinion on the issue was being requested. Mr. Smith never received the legal opinion on the issue. Approximately two years later, on January 7, 2013, Mr. Smith sent Mr. Walden another email notifying the Department that the importance of this issue had escalated because FADA members were being sued by consumers or their representatives for failure to comply with the Rule. Mr. Smith requested guidance from the Department regarding interpretation of the Rule. Mr. Walden, as the then director of the Division of Motorist Services, responded on January 8, 2013, and offered an example of other options. For example, he suggested “the dealer informing the buyer of the option for the dealer to file the paperwork with the tax collector manually.” On January 8, 2013, Mr. Smith emailed Mr. Walden and requested a letter from the Department’s counsel clarifying what the Rule required. On October 30, 2013, Mr. Smith emailed Mr. Walden notifying the Department that dealers were continuing to be sued regarding compliance with the Rule and requesting clarification regarding the Rule. On October 30, 2013, Mr. Walden stated, “there are other options such as manual registration through the tax collector. How you offer those ‘other options’ is up to you.” Mr. Walden continued that FADA’s legal team “should decide how to best meet the ‘other options’ requirement based on the level of risk your clients are willing to assume.” Mr. Smith still had questions regarding compliance with the Rule. Mr. Walden’s responses did not clarify the meaning of “other options for titling and registration.” For example, the Rule fails to provide guidance whether the options include all possible options or only options available to the specific individual dealer. The Rule did not provide specific clarification regarding the type (permanent or temporary) of titling and registration. The ETR is an option that offers titling. However, use of EFS would be required to complete the permanent registration. Further, the Rule requires that a dealer disclose other options for titling and registration, but did not provide guidance regarding the type of options, (i.e., manual, electronic, private, or public). It also specifies “other options” but does not specify whether the disclosure includes other options that also may involve a fee. There are both electronic and manual options that require a fee. Standing The Rule affects EFS agents that charge a fee to customers for EFS filing. A substantial number of FADA members are EFS agents and charge a fee to their customers and are, thus, directly and substantially impacted by the Rule.
Findings Of Fact At all times relevant hereto, respondent, Pedro P. Landera, was a certified general contractor having been issued license number CG C005371 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board), in March 1973. In January 1986 the license was suspended by the Board for three years and, except for the charges pending in this proceeding, Landera would be eligible to have it reactivated in early 1989. Thus, Landera has been without authority to use his license for the last three years. Landera did not contest the Board's suspension action and, in a settlement stipulation, admitted he violated Subsections 489.129(1)(c), (d), (e), (f) and (m), Florida Statutes (1981), by certain conduct taken in December 1983. On August 11, 1986, an individual using the name of James Burke entered into a construction contract with Charlie E. Mincey, the owner of Charlie Tires Service, 1700 N. W. 79th Street, Miami, Florida. The contract, which has been received in evidence as petitioner's exhibit 4, called for Burke, "in a timely manner," to make the following additions to Mincey's tire shop: construct a 34' X 40' room onto the existing building, erect an aluminum shed across the front of the building, including a four foot concrete slab floor, and add a five foot wall across the back side of the building. Burke represented on the contract that he held license number 254514-4. However, a search of the Board's records revealed Burke held no state license. The total price for the work was $15,650. On August 13, Mincey paid Burke $3,000 as a down payment on the job. According to Mincey, Burke began work on the additions several weeks after the contract was executed and continued to do so on and off for a few months. Eventually, a concrete block wall for the 34' x 40' room was built, but it had no roof, windows, doors, electric wiring, plumbing or paint. The aluminum shed was never built nor did Burke construct a five foot wall at the rear of the building as required by the contract. During October and early November 1986 Mincey made additional payments to Burke in the amount of $3,175, 1,000, $500, $400, $300, $300, and $40. This made a total of $8,715 paid by Mincey to Burke. Despite these payments, several subcontractors came to the job site during the same time period to unload materials but requested payment from Mincey before they would release them. Mincey paid the subcontractors $2,593.64, as evidenced by receipts received in evidence as petitioner's exhibit 7. When Burke did not return to the job site, and the project was still far from completed, Mincey attempted to contact Burke but could not find him. When he left the job site for the final time, Burke gave Mincey no notice of his intention to leave the job unfinished or any reason for doing so. Burke's whereabouts are still unknown, and there is now pending an outstanding warrant for his arrest. On September 30, 1986, a building permit application was filed with the Metropolitan Dade County building and zoning department seeking a permit for work to be done on Mincey's business. The application was filled out with three different colors of ink and in more than one person's handwriting. A carbon copy of the application has been received in evidence as petitioner's exhibit 9. The document was authenticated by a permit clerk of the Metropolitan Dade building and zoning department who identified the cashier's validation stamp, issuance date and permit number affixed to the document, all being indicia that the application was received and processed by that department. Further, the clerk attested to the fact that the carbon copy was a document normally kept in the regular course of business by her department. The application carries the signature, license number and social security number of respondent. The authenticity of respondent's signature was confirmed by a questioned document examiner whose testimony has been accepted as being credible and persuasive and was corroborated by respondent's own admission that the signature was his own. The author of the remaining writings on the document is unknown. Pursuant to the above application, a building permit was issued on October 1, 1986, for the work performed by Burke. The inspection record, which has been received as petitioner's exhibit 8, reflected that the job site was inspected by a Dade County inspector on October 1 and November 12, 1986. Also, the inspection record reflected that Gila Construction Company (GCC) was the contractor on the job. GCC is a Miami firm that Landera qualified in March 1984. Its owner is Gilbert Castillo. Mincey's building remains unfinished as of this date, and he contends the value of the work is less than the $11,308 that he paid to Burke and the subcontractors. In attempting to resolve the matter, Mincey learned that Landera's license number was on the permit application, and a complaint was eventually filed with the Board. However, prior to hearing, Mincey had never seen or talked to Landera, knew nothing of GCC, and considered the business transaction to be between he and Burke. Landera denied knowing Burke or authorizing him to use his license. Also, he maintained that he has not used his suspended license since the Board's action in early 1986. He denied signing the application in question and had no explanation as to how his signature got on the application except to suggest that someone may have obtained one with his signature and then fraudulently used the same to obtain a permit. Even so, there was no reason for Landera to sign an application during this period of time since his license was under suspension. Castillo, who owns GCC, denied knowing Burke or Mincey or having any knowledge of or participation in the Mincey job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law, that he pay a $3,500 fine, and that his license be suspended until January, 1991. DONE AND ORDERED this 10th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. APPENDIX Petitioner: 1-2. Covered in finding of fact 1. 3-4. Covered in finding of fact 2. Covered in findings of fact 3. and 5. Covered in finding of fact 4. Covered in finding of fact 6. Covered in finding of fact 1. Respondent: Covered in findings of fact 1 and 2. Covered in findings of fact 3 and 5. Covered in findings of fact 4 and 5. 4-5. Covered in finding of fact 8. Covered in findings of fact 2, 5 and 6. Covered in findings of fact 6 and 9. Covered in finding of fact 6. 9 Covered in findings of fact 9 and 10 COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis F. DeLaCruz, Jr., Esquire 300 Sevilla Avenue Suite 313 Coral Gables, Florida 33134 Kenneth E. Easley, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Are the allegations of the Administrative Complaint true, and if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Department is the agency of the State of Florida responsible for the enforcement of the Florida Motor Vehicle Repair Act. Respondent 98 Trans Service Inc. was, at pertinent times, a corporation doing business as AAL Transmission World. Respondent Michael Crisante, Sr. is the president and owner of 98 Trans Service, Inc. d/b/a AAL Transmission World. Respondent 98 Trans Service, Inc. d/b/a AAL Transmission World (AAL) is located at 5526 North Highway 98, Lakeland, Florida. AAL is registered with the Department as a motor vehicle repair shop that does transmission repair and has been assigned registration number MV-17033 by the Department. AAL advertised to the public a $14.95 coupon special for a multi-point transmission tune-up which included new fluid, clean pan, clean screen, replace gasket, adjust band and linkage, road test, check for leaks and check u-joints. Several witnesses testified that the reason they brought their vehicles to AAL was because they had seen the advertisement for the $14.95 special. On or about May 4, 1993, Lee Baker took his 1982 American Eagle Sport station wagon 4 wheel drive to AAL to be serviced using the $14.95 coupon. Baker was not experiencing any problem with the transmission but was concerned about a particular noise he was hearing while driving the vehicle. Baker left the vehicle with an AAL employee with instructions to service the vehicle using the $14.95 coupon and that if there was any problem to call him. Late the next day someone from AAL called Baker to advise him that there was a problem with the transmission. The next morning Baker went to AAL and was shown some debris (steel shavings, etc.) that supposedly came from his transmission and was told that the transmission needed an overhaul. Baker was not given a repair estimate or disclosure statement form at this time. Baker did not give AAL a written waiver of his right to receive a written estimate. 10 Baker went home, and after discussing the matter with his wife went back to AAL to pick up the vehicle, but was told by AAL that the vehicle was unsafe to drive. After some discussion, AAL told Baker it would cost $300 to overhaul the transmission, and that the transmission would be in first class condition after overhaul. With this assurance from AAL, Baker authorized AAL to overhaul the transmission. Again, Baker was not given a written repair estimate or disclosure statement by AAL. Two days later AAL called Baker and advised him that the torque converter needed an overhaul. After some discussion with AAL about why the torque converter needed an overhaul, Baker, still somewhat confused, told AAL that he would not authorize the torque converter overhaul but to call him when the car was ready. Again, Baker was not given a written repair estimate or disclosure statement by AAL and had no idea what AAL was going to charge for the repair. When Baker went to pick up his vehicle he was presented with a bill by AAL for $697.48 which indicated, along with some minor repairs, that AAL had install a reconditioned automatic transmission, a rebuilt torque converter and replaced the right front axle. The bill, which Baker paid, came to $697.48. Other than this summary repair bill, Baker did not receive a repair estimate or disclosure statement in writing from AAL before AAL proceeded to repair his vehicle. Likewise, Baker has never received from AAL an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On or about September 6, 1994, Peggy Graham took her 1986 Buick to AAL to have the transmission serviced with the $14.95 coupon. Graham had the Buick serviced on a regular basis and the oil changed every 3,000 miles. Prior to taking the Buick to AAL on September 6, 1994 to have the transmission serviced, Graham was not having any trouble with the car or the car's transmission. In fact, Graham had just recently driven the car 4,000 miles while on vacation. John Waterman, Service Manager for AAL, had the transmission pan pulled outside the presence of Graham. Thereafter, Graham was shown some alleged metal shavings that supposedly was in the pan of the transmission when it was pulled, and was told that the car was unsafe to drive. Graham signed a repair estimate and disclosure statement form to the effect that AAL was to give her a repair estimate in writing if the repair costs exceeded $50. Although Graham's final bill on repairing the transmission in the Buick was $901, she was never given a repair estimate even though the amount exceeded the $50 she had authorized. Likewise, Graham was never given an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On February 18, 1994, Evelyn Smith took her 1987 Oldsmobile to AAL to have the fluid changed using the $14.95 coupon. Smith purchased the car in August, 1993, and had experienced no problems with the car or the transmission prior to taking the car to AAL. In fact, the information filled in by Smith on the disclosure statement (Department's exhibit no. 11) on February 18, 1994, indicates that she brought the car in for service and was experiencing no problems with the transmission. Also, the car had been serviced about a month earlier, and there was no indication of any problem with the transmission at that time. Dean Curtis, Service Manager for AAL, test drove the Smith vehicle and advised Smith that there was a problem when shifting from first gear to second gear. Smith had never experienced this problem before with the car's transmission. Curtis then had the transmission pan pulled outside the presence of Smith. Thereafter, Smith was shown some alleged metal shavings that supposedly was in the transmission pan at the time it was pulled, and was also told that the transmission fluid had a burnt smell. Based on her conversation with Curtis, Smith was under the impression that AAL could dismantle the transmission, determine the problem and repair the transmission for $262. With this understanding, Smith signed a repair estimate and disclosure statement form (Department's exhibit no. 11) indicating that she did not require a written estimate so long as the repair costs did not exceed $262, and left the car at AAL for the transmission to be repaired. Although this repair estimate and disclosure statement form (Department's exhibit no. 11) has what might be considered an estimate of labor and parts totalling $1,282.11 on the back, this information was not on the form at the time Smith signed on February 18, 1994. Later, AAL called Smith to advise her that it would cost $1,209.54 to repair the transmission and that if she did not want it repaired that there would be a charge of $262 for the diagnostic work and for reassembling the transmission. Although Smith had understood that the $262 would be the cost of repairs, she authorized AAL to repair the transmission at a cost of $1,209.54, because otherwise she would have wasted the $262. Subsequently, AAL repaired Smith's transmission at a cost of $1,264.69, which Smith paid. On October 13, 1993, Robert Weiss took his 1990 Jeep Cherokee Laredo to AAL to be serviced using the $14.95 coupon. Weiss's only reason for going to AAL was to have the Jeep's transmission serviced using the coupon. Prior to taking his Jeep to AAL for service, Weiss regularly serviced his Jeep and changed the engine oil every six thousand miles. Weiss had never experienced any problem with the Jeep's transmission prior to taking the Jeep to AAL and had never had to have the Jeep's transmission repaired. Weiss left the Jeep at AAL for the service set out in the coupon while he went shopping. Upon returning from shopping, Weiss was informed by an AAL employee that the Jeep's transmission pan contained metal shavings and that the fluid had a burnt smell. Weiss was shown the alleged metal shavings that supposedly were in the Jeep's transmission pan when the pan was removed. Weiss was not present when the transmission pan was removed from the Jeep's transmission. Weiss was informed by this AAL employee that the presence of metal shavings and the burnt smell of the fluid were signs of serious problems, and if not fixed could result in the transmission falling apart. Based upon these representations, Weiss agreed to have the transmission repaired. Weiss was advised verbally as to the cost of the transmission repair but did not sign a waiver of the requirement for a written repair estimate. Weiss did not receive a written repair estimate and did not sign any thing authorizing the repair of the transmission. Weiss did not receive an itemized description of all labor, parts, and merchandise supplied and the costs of such items from AAL. The only document received by Weiss from AAL was a copy of a repair estimate and disclosure form with Weiss' signature on the disclosure statement with no date and with none of choices checked. Weiss' signature does not appear on the authorization for inspection service section or the authorization for repair section. However, Weiss did sign the completion certification section. The final bill in the amount of $1,482.32 was paid by Weiss. On May 25, 1994, Mary Curry took her 1991 Buick Regal to AAL to have the fluid changed using the $14.95 coupon. Curry purchased the Buick in September, 1993. Curry had experienced no problems (no leaking, no slipping or no locking up) with the transmission prior to taking the car to AAL on May 25, 1994. The Buick's odometer showed a reading of approximately 35,000 miles. An employee of AAL took Curry's car back in the service area for service. Subsequently, Curry was shown a transmission pan with metal shavings and a bolt which supposedly was in the Buick's transmission pan when it was removed. Curry was not present when the transmission pan was removed by AAL. Curry was advised by AAL that it would cost $262 to remove, dismantle, inspect parts, reassemble and install transmission. Curry agreed to this and gave AAL written authorization to perform such work. Curry understood that she would be required to pay the $262 even if there was no repair required. After AAL dismantled the transmission, Curry was advised verbally that it would cost approximately $1,000 to repair the transmission. Curry did not waive the requirement for a written estimate. However, AAL did not give Curry a written estimate of the cost of the repairs. The costs ($1,398.95) set out on the back of Department's exhibit no. 15 were not there at the time Curry signed the front of that document authorizing AAL to dismantle, inspect and reassemble the transmission. Curry did not sign the authorization for repairs section on the front of the repair estimate and disclosure form. The final bill for the repair of the transmission was $1,336.45, which Curry paid. Sometime in June, 1995, Dennis Leonis took his 1968 Chevrolet Monte Carlo to AAL to have the transmission fluid changed. Leonis was the original owner of the car which had 200,000 miles on the odometer, but the car was in excellent working condition, with no transmission problems. AAL did not test drive the vehicle, but while the car was at AAL, and out of the presence of Leonis, the transmission pan was pulled. Subsequently, the manager advised Leonis that the pan contained debris (metal shavings) when it was pulled and that the transmission was falling apart. The manager quoted a price of $2,000 to repair the transmission. Dennis was told by the AAL employee that removed the pan that there was nothing wrong with the transmission. Leonis had the transmission pan, with the old fluid, placed back on the transmission and drove to another transmission repair shop to have the fluid changed. Leonis changed the transmission fluid every other week for a total of four times. Leonis drove the car for approximately 30,000 to 40,000 miles without any problems with the transmission. Heidi and Alvie Steelman had a 1983 Buick Regal that had developed a leak in the transmission. On November 23, 1994, the Steelmans took their Buick to AAL for the express purpose of having AAL determine the source of the leak. AAL found the source of the leak to be the O-ring where the dipstick enters the transmission but suggested that the Steelmans allow AAL to change the filter and fluid while in the shop at a cost of $14.00. The Steelmans agreed to have this service but did not agree to have AAL disassemble the transmission. Subsequently, and out of the presence of the Steelmans, AAL pulled the transmission pan on the Steelmans' Buick and showed them some alleged shavings that supposedly was in the transmission pan when it was pulled. AAL advised the Steelmans that the Buick needed a rebuilt transmission. The Steelmans advised AAL that they could not afford a rebuilt transmission and to reassemble the old transmission so they could take the car home. At this point, AAL advised the Steelmans that it would cost $185.00 to reassemble and if they didn't pay that the car would be moved to the AAL lot with the disassembled transmission. AAL advised the Steelmans that AAL could secure a loan for them to pay for the work. Alvie Steelman, assuming he was signing a request for a loan, signed a repair estimate authorization and disclosure statement that at the time of signing did not contain an estimate of the costs of repairs or costs of parts. After AAL's assurance to the Steelmans that a loan would be forthcoming, the Steelmans gave AAL permission to repair the transmission. AAL was unable to secure a loan for the Steelmans. The final bill was $583 which the Steelmans paid with funds borrowed from friends and family. AAL provided the Steelmans with a repair estimate and disclosure form at the time they paid for the repairs. However, this form did not itemize the costs for labor and parts. AAL did not provide the Steelmans with a itemized description of all labor, parts, and merchandise supplied and the costs of such items. AAL did not provide the Steelmans with any paper work until they had paid for the repairs. On June 9, 1995, Clyde Garretson drove his 1983 Chevrolet Truck to AAL. The truck could not be driven in drive gear but could be driven in second gear. Garretson left the truck with AAL with verbal instructions to check out the problem. AAL did not advise Garretson at this time as to the cost for diagnosing the problem and did not present Garretson with a repair estimate and disclosure form to be signed showing the estimated cost of diagnostic work. 41 Later on that day Garretson was advised by AAL, through his wife, that it would cost approximately $950 to fix the transmission. At first, Garretson decided not to have AAL fix the transmission, but when informed by AAL, through his wife, that there would be charge of $295 for diagnostic work, Garretson agreed, through his wife, to have the transmission repaired. Again, AAL did not prepare and present to Garretson a repair estimate for his approval. Furthermore, Garretson did not waive the require for a written repair estimate. The only paper work received by Garretson was the final bill for $1,046.22 which was not an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On June 23, 1995, Daryl Gargus had his 1988 Dodge Ram D50 taken to AAL because the transmission was locked in gear. Gargus did not at any time receive an invoice with an itemized description of all labor, parts, and merchandise supplied and the costs for such items. Furthermore, it was later discovered by Gargus that a new clutch assembly and clutch disc that had been installed in the truck by Gargus had been removed and replaced by used parts. Gargus was told by AAL that the clutch had not been replaced. Also, a practically new direct drive starter that Gargus had observed prior to taking the truck to AAL had been removed and replaced by a used starter. Gargus was not told by AAL that the starter had been replaced. Edgar Pickett, Jr. and his son, Edgar Pickett, III, took the son's 1984 Fleetwood Cadillac to AAL for service and because it was slipping. The Picketts left the car with AAL. Edgar Pickett Jr. testified that he signed a repair estimate with a disclosure form on July 3, 1995, which required AAL to provide an estimate of repairs should the estimate of repairs exceeded $50. However, it appears that the repair estimate and disclosure form was signed by Edgar Pickett, Jr. on July 5, 1995, the date the car was picked up by Edgar Pickett, Jr. after being repaired by AAL. Furthermore, it appears that Edgar Pickett, III signed a repair estimate and disclosure form on June 30, 1995, authorizing diagnostic work and repair work on the transmission. Also, this form (Respondent's exhibit 1) shows an itemized statement of parts, labor and the costs of such items necessary for the repair of the transmission. Troy Spruill took his Dodge Dynasty to AAL for a $14.95 service. AAL test drove Spruill's car and told Spruill that the transmission was slipping from first to second, and that it might have to be rebuilt. Spruill left the car at AAL and went home. Later, AAL called Spruill and gave him a verbal estimate over the telephone of $1,122.83 to repair the transmission. The estimate included a CV joint. Subsequently, Spruill gave AAL authorization to make the repairs covered in the estimate which included the transmission and the CV joint. In fact, on July 19, 1995 Spruill signed a estimate of repairs and disclosure form authorizing the repair so long as the cost did not exceed $1,190.20 which was the cost of the repairs plus tax. Spruill paid AAL $1,190.20 and received a copy of the repair estimate and disclosure form. This form does not show an itemized description of all labor, parts and merchandise supplied and the costs of such items. However, Spruill was verbally furnished this information over the telephone prior to authorizing the repair on July 19, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Department of Agriculture and Consumer Services enter a final order revoking the registration (MV-17033) issued to Respondents' motor vehicle repair shop. RECOMMENDED this 24th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1996. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level - 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level - 10 Tallahassee, Florida 32399-0810 Lawrence J. Davis, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 John L. Woodard, III, Esquire 320 North Magnolia Avenue, Suite A-6 Orlando, Florida 32801
The Issue The issue in this case is whether Respondents committed the offenses described in an Administrative Complaint entered by Petitioner on or about January 10, 1997.
Findings Of Fact Petitioner, The Department of Agriculture and Consumer Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for enforcing the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Adam's Street Muffler Shop and Service Center, Inc. (hereinafter referred to as "Adam's Street Muffler"), is a dissolved Florida corporation. Adam's Street Muffler is located at 1401 South Adam's Street, Tallahassee, Leon County, Florida. Adam's Street Muffler is registered with the Department under the Act as a motor vehicle repair shop. The Department has assigned registration number MV-15484 to Adam's Street Muffler. Respondent, Tim Tanner, is the owner and operator of Adam's Street Muffler. At the time that Adam's Street Muffler register pursuant to the Act, a registration packet, including a copy of the Act, was provided to Adam's Street Muffler. On July 24, 1995, Robert Dan Drake, an investigator with the Department's Bureau of Motor Vehicle Repair, went to Adam's Street Muffler. Mr. Drake performed a compliance audit to determine whether repair estimate statements and invoices for services were in compliance with Sections 559.905 and 559.911, Florida Statutes. A copy of the repair invoice provided by Adam's Street Muffler personnel to Mr. Drake was determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. See Petitioner's Exhibit 9. Mr. Drake discussed the requirements of the Act pertaining to repair estimates and invoices with Peggy Folsom, the secretary for Adam's Street Muffler. Mr. Drake also provided an On-Site Inspection Report/Citation (Petitioner's Exhibit 7), and a Compliance Checklist/Citation (Petitioner's Exhibit 8), to Ms. Folsom. These forms described the deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. Adam's Street Muffler was given thirty days to correct the repair estimate and invoice. A revised form was submitted to the Department. See Petitioner's Exhibit 10. The corrected form was accepted by the Department. On July 1, 1996, Mr. Drake returned to Adam's Street Muffler. Mr. Drake discovered that the repair estimate and invoice used by Adam's Street Muffler for a complaining customer was the same form that he had found to be deficient on July 24, 1995. See Petitioner's Exhibit 12. Mr. Drake issued a second On-Site Inspection Report/Citation to Adam's Street Muffler as a result of the July 1, 1996 visit. Petitioner's Exhibit 11. The report again described the specific deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. On October 1, 1996, Mr. Tanner paid a $300.00 fine for violating Sections 559.905 and 559.911, Florida Statutes. On December 1, 1996, two months after Mr. Tanner paid the fine, and approximately six months after the second violation of the Act, Dan Keller, an employee of the Department, visited Adam's Street Muffler. Mr. Keller examined forms titled "Repair Orders" in the files of Adam's Street Muffler. The forms discovered by Mr. Keller were determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. Petitioner's Exhibits 1-5. The forms copied by Mr. Keller on December 1, 1996, were used as repair estimates and invoices for services performed. The evidence failed to prove when the vehicles at issue were brought to Adam's Street Muffler, that they were not brought to Adam's Street Muffler by person other than the owner, or that Adam's Street Muffler did not notify the customer pursuant to Section 559.909(1), Florida Statutes. None of the owners of the vehicles to which Petitioner's Exhibits 1-5 relate have filed a complaint with the Department concerning work performed by Adam's Street Muffler. The repairs evidence by Petitioner's Exhibits 1-5 were for repair work costing in excess of $50.00. The forms taken from Adam's Street Muffler on July 24, 1995, July 1, 1996, and December 1, 1996 are incorporated into this Recommended Order by reference. On or about January 10, 1997, the Department entered an Administrative Complaint against Adam's Street Muffler and Mr. Tanner. The Administrative Complaint contains two counts against Respondents: one for alleged violations of Section 559.905, Florida Statutes, and one for alleged violations of Section 559.911, Florida Statutes. Both counts relate the forms obtained by the Department in December of 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services finding that Adam's Street Muffler Shop and Service Center, Inc., a Florida Corporation, and Tim Tanner, individually and as Director of Adam's Street Muffler Shop and Service Center, Inc., violated Section 559.911, Florida Statutes, as alleged in the Administrative Complaint entered January 10, 1997. IT IF FUTHER RECOMMENDED that Respondents be required to pay an administrative fine of $1,000.00 within thirty days of the date that the Final Order becomes final and the motor vehicle repair shop registration, MV-15484, issued to Respondents be suspended for a period of two weeks. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Lawrence J. Davis, Senior Attorney Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 J. Joseph Hughes, Esquire 1017-A Thomasville Road Tallahassee, Florida 32303-6221 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Some time after February 19, 1983, and before March 23, 1983, Wayne W. Hickey opened for business as an auto mechanic under the name Auto Tech at 2350 Fernwood Drive in Pensacola, Florida. He was employed by, but had no ownership interest in the auto repair business known as Motor Exchange that occupied the premises before him. After he had opened his own business, he undertook employment for Lloyd Linville, a principal of Motor Exchange, who asked him to repair a car that belonged to David H. Weinstein which Motor Exchange had been unable to repair. Mr. Hickey could not fix the engine knock, either, and was never paid for his work. While the car was in Mr. Hickey's custody, vandals did $700 damage to it. Mr. Hickey refused to repair this damage or pay Mr. Weinstein money to have it done elsewhere. On February of 1983, while still employed by Motor Exchange, Mr. Hickey signed a warranty on behalf of Motor Exchange covering an engine rebuilt for Jose L. Rodriguez. A week later Mr. Rodriguez discovered that the cam and the lifters were bad, and brought this to Mr. Hickey's attention. Mr. Hickey referred Mr. Rodriguez to Motor Exchange at their new location. The last time that Mr. Rodriguez and Mr. Hickey spoke before the hearing in this cause, Mr. Rodriguez told Mr. Hickey that all was well. At hearing for the first time, Mr. Hickey learned that other problems had developed with the engine since. After she got her income tax refund, Anita Diane Frye took her 1974 Chevrolet to Auto Tech on February 28, 1983. She considers the car hers even though it is registered in her boyfriend's name. He signed the work order authorizing respondent to rebuild the engine. Auto Tech worked on the engine and gave a "1 year or 15,000 mile warranty on engine against defective parts & workmanship accessories excluded." Petitioner's Exhibit No. 5. When Mr. Hickey returned the car after working on the engine, he told Ms. Frye, "You better buy a new set of back tires," because it would go so fast, he claimed. In fact, the car smoked from the time they got it back from Mr. Hickey and he was unable to correct the problem when they took it back for lifters to be installed or when they took it back the second time. The third time they took it back they found the shop closed and no indication of how to get in touch with Mr. Hickey. At the time of the hearing, the car had been driven less than 3,000 miles since the engine had been rebuilt, but the engine spat and sputtered and the car could not be driven faster than 20 or 30 miles per hour: "You sit in a cloud of smoke whenever you stop." After James Clyde Odom heard respondent's radio advertisement, he brought his 1974 Dodge truck to Auto Tech on May 3, 1983, to have the engine rebuilt. Mr. Hickey told him he would rebuild the engine "from the ground up" and guarantee his work. As agreed, Mr. Odom returned for the truck on May 7, 1983, paid Mr. Hickey $644.09 and received a written "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Mr. Odom had driven the truck approximately three miles when his wife, who was following in another car, honked her horn. Steam was rising from the engine. They turned around and went back to the garage where Mr. Hickey supplied a bolt that had been left out of the water pump housing. The Odoms set out again and made it all the way to Mrs. Odom's father's house, where they noticed oil leaking. They determined that a quart and a half had been lost. They took the truck back to the Auto Tech shop again and left a note describing the problem. A week later Mr. Odom picked his truck up from Auto Tech a third time and drove it about two and a half miles to a friend's house, where oil leaked from the truck again and formed a puddle in the friend's driveway. This time when Mr. Odom returned, Mr. Hickey said he could not work on it right away, that Mr. Odom would have to bring it back at Mr. Hickey's convenience, and he refused Mr. Odom's proposal that another mechanic he asked to repair the engine with the bill being sent to Mr. Hickey. The compression in the truck's engine ranged from 107 or 114 pounds in one cylinder to 160 pounds in another. Mr. Hickey also undertook to repair the brakes on the Odom truck, and was paid for this job. He did not turn the drums or replace the brake cylinders although he did install new brake shoes. The brakes did not hold after the work was done. On May 27, 1983, Ishmael White took a 1974 Dodge engine to Hickey for rebuilding. The job was to include "rings, mains, rod bearings, timing gear, timing chain, lifters, push rods, oil pumps, all new gaskets, complete valve job and" cam bearings. Petitioner's Exhibit No. 7. On June 1, 1983, Mr. White paid Mr. Hickey $624.75 for this work and he picked the engine up the next day. The head bolt had not been replaced. On June 10, 1983, the engine was reinstalled in Mr. White's pick-up truck. It made the whole truck vibrate. When Mr. White took it to be tuned, the mechanic said he could not tune it because the valves were not closing. When Mr. White reported this to Mr. Hickey, Mr. Hickey said he would not be able to work on the engine until June 15, 1983. On June 15, 1983, Mr. White left the truck with Mr. Hickey and returned to pick it up on June 21, 1983, as they had agreed. The truck was not ready then, so Mr. White inquired again on June 23, 1983. At that time Mr. Hickey told him that the water pump leaked and would cost $70 to replace, but Mr. White refused to buy a water pump from Mr. Hickey since a new one had been installed less than three months before he took the engine to Auto Tech. On July 12, 1983, Mr. Hickey told Mr. White that everything had been fixed except the water pump and that if he towed the truck away without buying another water pump the warranty was "no good." The warranty Mr. Hickey had earlier given Mr. White was a "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Petitioner's Exhibit No. 7. Mr. White took the truck nevertheless. Bolts were loose. A brand new air filter was wet. Four of the eight cylinders had little or no compression and the engine ran so rough the hood shook, but the water pump was not leaking. Mr. White took the truck elsewhere to be repaired at his expense. On April 2, 1983, James Fisher took his Ford pick-up to Mr. Hickey and Auto Tech and asked that a rebuilt 400 cubic inch engine be substituted for the 351 cubic inch engine it had at the time and that its C-4 transmission be replaced with a C-6. The Fishers retrieved their truck on April 14, 1983, and drove it home. The next day they set out on a camping trip. They had driven 20 miles when the engine "blew up." Smoke came back into the cab and billowed out from under the hood. Employees of Mr. Hickey came for the truck. On April 25, 1983, the Fishers left Auto Tech in the Ford truck a second time. The engine ran rough, the transmission "growled," and they spotted a stream of transmission fluid, so they turned around before they had gone a mile and drove the truck back to Auto Tech. On April 29, 1983, Mr. Hickey said everything was fine and the Fishers set out again. The transmission was better, but the engine was worse, and the car broke down near their son's place of business, a block or so from Auto Tech. The truck was taken back to the Auto Tech garage. Again on May 6, 1983, the Fishers set out in the truck and got all the way to Pace, Florida, this time, notwithstanding problems with the transmission. A mechanic in Pace discovered worn valve guides, worn rings and worn bearings; and that only one bolt attached the engine to the frame; and that the drive shaft had been jammed in without being properly fitted. The Fishers were unable to find Mr. Hickey after he closed down his Auto Tech shop. Without objection, the following affidavit was received in evidence at hearing: I Took The Engine To Wayne Hickey at Auto TECH to be Rebuilt. He was To Rebuild The Engine For $395.00 Plus Taxes, I Paind Him by check $414.75 I took The Engine Home and Installed it in The Car.The engine was Smokeing Real bad. I went back to Wayne Hickey with The Car and he informed me That The Engine Should be Ran For up To 500 miles If IT didn't stop smokeing & useing oil To bring it back. The Engine Froze up. I Towed The car back to AUTO TECH. Wayne Hickey said he would Need to Keep The Car for 3-4 days. My daughter called after 7 days and they haden't Touched The car. They Said to Call back ON The 16 July 83. My daughter Called back on The 16 July 83 and could get no anser, I called back on The 19th & the Recording Said The Phone was Temperoley out of order, I came over here to Auto TECH and talked to Wayne Hickey, 7-28-83. He had not done anything to the Engine, I ask him To give me my Money back and I would get The Engine Fixed Myself. He stated For me to Take The car Home, Take the Engin back out and bring the Engine back To him and He would Fix IT, he didn't say anything about Removeing The Engine when He Told me To bring The car back to Him, A Mr. Watha L. Clayton wrote out the foregoing statement on a form furnished by petitioner's office. The form affidavit was notarized July 28, 1983.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2d day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2d day of December, 1983. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Wayne Hickey Motor Exchange 5672 Avondale Road Pensacola, Florida 32506 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the issues herein, petitioner Davis was an automotive equipment repair foreman at respondent's Pinellas County Maintenance plant. In addition to this employment, petitioner also had a pecuniary interest in the Sunshine Speedway in St. Petersburg. A steel pole was located on private property belonging to Sunshine Speedway. Because persons and/or vehicles had been injured by this pole, petitioner and a heavy equipment operator employed by respondent decided to remove it. They went to respondent's maintenance yard at 6:30 or 7:00 p.m. after their hours of employment, got a crane truck belonging to respondent, drove it to the Speedway, removed the steel pole to another area and returned the truck to the maintenance yard after dark. Petitioner neither asked for nor received permission to use respondent's equipment for this purpose. At a time when petitioner was leasing the Sunshine Speedway, and during his hours of employment with respondent, he filled a dump truck belonging to respondent with limerock or scrap materials. After his hours of employment with respondent, petitioner drove this truck to the Speedway and dumped its contents near the entranceway for the purpose of making a culvert or crossover. While there was some evidence that petitioner had the permission of his immediate supervisor, Mr. William Dasher, to use the respondent's scrap culvert material, petitioner admitted that no one gave him the authority to improve the entranceway to the Speedway or to use the respondent's truck for this purpose. As a result of the facts described in paragraphs 2 and 3 above, respondent found that petitioner had violated state rules and regulations and departmental policies with regard to the unauthorized use of state equipment outside of his regular assigned duties and responsibilities and for other than state purposes. The disciplinary action taken was demotion of petitioner from automotive equipment repair foreman at Pinellas Maintenance to automotive equipment mechanic II and reassignment to Tampa Maintenance. Petitioner thereafter appealed this disciplinary demotion and reassignment to the Career Service Commission. The matter was referred to the Division of Administrative Hearings for hearing, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Commission affirm the demotion and reassignment of petitioner inasmuch as the same was based upon good cause and was in accordance with established rules and regulations. Respectfully submitted and entered this 23rd day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Horace E. Davis Post Office Box 375 Pinellas Park, Florida 33565 Mrs. Dorothy Roberts Appeals Coordinator Phillip Bennett, Esquire Department of Administration Department of Transportation Room 530 Carlton Building Haydon Burns Building Tallahassee, Florida 32304 Tallahassee, Florida 32304
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint filed herein, Petitioner was licensed as a general contractor in Florida, holding license number CG CO20660, under which license he had qualified Custom Retail Contractors, Inc., and the Petitioner, Construction Industry Licensing Board, (Board), was the state agency charged with regulating the practice of contracting. On February 12, 1986, the Board entered a Final Order in its case number 0058164 in which it suspended Respondent's license to practice contracting for five years. This action was based on a finding that Respondent had violated several sections of the Standard Building Code in a contract to build several commercial buildings in Largo, Florida, and also had exhibited gross negligence or incompetency in several aspects of the job. Respondent was first made aware of the action of the Board in late March or early April, 1986 when his attorney, Mr. Gordon, told him he had received a copy of the Final Order. At that point, Respondent did not know there had been a hearing on his case, though he knew an action had been filed. Correspondence extracted from the files of DPR relating to Respondent, indicates that between March 11, 1986 and June 25, 1986, several phone calls and letters were exchanged between DPR legal personnel and Respondent's counsel regarding whether Respondent had been given notice that the initial Administrative Complaint against him had been filed. The complaint had been served by an investigator with DPR on Mr. Gordon who declined to accept service since he was counsel for Respondent's corporation and not Respondent, individually. The evidence further indicates that subsequent pleadings in that case were misdirected and misaddressed due to faulty addresses used by the Department which included erroneous street addresses and erroneous ZIP codes. The upshot of all this was that Respondent failed to submit an Election of Rights regarding the initial Administrative Complaint, and, after numerous attempts at communication by DPR, which included the posting of a notice of the Board hearing in the Clearwater, Florida newspaper, the Board ultimately held Respondent in default and entered the Final Order suspending his license as described above. In the Spring of 1986, however, while the communication and correspondence between DPR and Mr. Gordon was going on, Respondent was led to believe, he contends, that the Final Order was not dispositive of his status, that the status of his license was still undecided, and that he could continue to practice his profession. His reliance on advice of counsel was misplaced and works to his detriment here as it does not excuse his improprieties. Consistent with that understanding, on May 1, 1986, Respondent entered into a contract with Mr. Clarence P. Foster, owner of Clarence's, a lounge, restaurant and package store located in Clearwater, Florida, to remodel a patio outside the facility. Work was to include pouring a concrete slab in the drive- thru, constructing a block wall around the patio, installing lattice panels on top of the block wall, and placing planter boxes on two of the walls. The total contract price was $4,730.00 and on May 15, 1986, the manager of Clarence's issued a check in the amount of $1,730.00 payable to Tom Morgan, Respondent's associate. At the time of Respondent's negotiations with Mr. Foster, Mr. Foster indicated he was utilizing a contractor for the complete remodeling of his facility who did not want to do the patio work, and Respondent agreed to do it. After their contract was signed, Respondent dealt with Mr. Foster's manager who showed him the plans for the entire remodeling which, according to Respondent, included the patio. They were stamped by the contractor and had a permit number on them. Respondent contends he asked if that indicated permit included the entire project and claims he was told it did. Respondent also claims he advised Foster's manager that there was some problem with his contractor's license but was assured that the master permit already issued would cover any work done by him under the terms of the individual contract. After receiving the down payment from the manager, Respondent purchased the required materials, paying cash therefore, and started work. Respondent relates that at the very beginning, a violation was written by building inspectors for the failure of the electrical contractor to procure a permit for his portion of the work. When this was done, the contractor immediately got the required permit after the fact and continued with his work. This concerned the Respondent, however, and he requested the manager to bring the existing permit for the remodeling around to the area where Respondent was working where he posted it and covered it with cellophane. When the inspector subsequently came by to check Respondent's work, he asked where the permit for that portion of the construction was and Respondent pointed to the master permit. The inspector then indicated that that permit was only for exterior siding and when Respondent protested that decision, called his office and verified that fact. Upon being advised of this development, Respondent then took the plans he had been furnished and a copy of the permit to the building office and asked the clerk on duty what he had to do. According to Respondent, he was advised that he needed to get more plans prepared with a certificate that the work already done had been done to code. Respondent relates that in response to these instructions, he procured an architect to come and look at the job as it then stood. The architect reportedly thereafter drew up plans and certified the quality of the work already accomplished by Respondent and Respondent allegedly took this information to the building department where, on June 25, 1986, he applied for a building permit to do the work. At that time, according to Respondent, he advised the clerk he had a problem with his license and that all he wanted was a supplemental permit to finish the job. Approximately two weeks later, when passing the County building, Respondent stopped in at the building department office to check on the status of his permit. It was at this point that he first discussed the matter with Mr. Palmer, the plans examiner, who told him that his license had been suspended and that he could not receive a permit to do the work requested. Respondent returned to Mr. Foster and explained the situation to him. Mr. Foster turned the matter over to his manager who arranged for someone else to get the permit and complete the job. Respondent contends he was not trying to trick anyone or to contract without a license. He claims that at the time he entered into the agreement with Mr. Foster, he was unsure of the status of his license and he thought he had made that clear to everyone, including Mr. Foster and the people at the building office. Respondent contends that in his dealings with Foster he was attempting to deal as a subcontractor and not as a general contractor. The fact is, however, that the contract he entered into was a separate contract with Mr. Foster and failed to indicate any reference to subcontractor status. The agreement called for Respondent to be paid directly by Foster and not by the general contractor and his claim is, therefore, not believed. Respondent's protestations in this regard are without merit. Further, his story regarding the permit status is equally as unbelievable. As a qualified contractor, Respondent knew, or should have checked on, the limits of the permit issued and whether it would cover the work he was to do. Reliance on the representations of the non-contractor manager of Mr. Foster's facility as to the status of the permit was unreasonable and constituted gross negligence. Consequently, he was thereafter operating in violation of the local law which required a permit for this work. As a result of the ongoing negotiations between Respondent's counsel and counsel for the Board, on July 10, 1986, after the contract between Mr. Foster and Respondent had been entered into, Respondent and the Board entered into a Settlement Stipulation which called for amendment of the Final Order entered in the prior case and which provided for the payment of a fine of $1,000.00 within 30 days with the further stipulation that when the fine was paid, the previously imposed five year suspension would be set aside. In the event the fine was not paid, however, then the Respondent's license was to be relinquished to the Board. The Amended Final Order was sent by certified mail to the Respondent but was unclaimed because the address used by the Department was, again, incorrect. It must also be noted, however, that at the time the Board agreed to the settlement stipulation, it had available to it the report of investigation relating to the current Administrative Complaint. The Board either failed to consider it or chose to ignore it when it agreed upon a settlement to the former Administrative Complaint. It is also noted that the Board was aware of the difficulties involving service of process as early as August, 1986. At that time, Respondent received a certified letter from the Board Attorney indicating that final action on his license would be taken by the Board at its September, 1986 meeting in Ft. Lauderdale. Respondent attended that meeting where, after discussion, counsel for the Board convinced the Board to reopen the case due to the questions involving proper service of its former actions. A year later, in July, 1987, Respondent was advised that the reopened case would again be considered at the Board's meeting in Tampa, and at the 1987 meeting of the Board, it entered its Amended Final Order. Though regrettable, these factors are not controlling and do not affect this current action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent's license as a general contractor in Florida be suspended for two years. RECOMMENDED this 11th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1999 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 10 - 13. Accepted and incorporated herein. Accepted that Palmer refused to issue the permit because Respondent's license had been suspended. Accepted and incorporated herein. Rejected that Respondent willfully violated local building code. Evidence shows more of gross negligence than willfulness. Accepted. For the Respondent: No submittal. COPIES FURNISHED: Belinda Miller, Esquire, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0758 Fred H. Moore 12687 - 97th Street, North Largo, Florida 34643 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue is whether Respondent's license as a certified general contractor and certified roofing contractor should be disciplined for the reasons cited in the Amended Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, John V. McCrave, was licensed as a certified general contractor and certified roofing contractor having been issued license numbers CG C014083 and CC C056695 by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). Respondent was the licensed qualifying agent for American General Enterprises, Inc. (American General), a contracting firm with offices in Inverness, Florida. He has held a license since 1978. In 1980, Joan D. Branca relocated from New Jersey to Inverness, Florida, where she purchased a mobile home. Around 1982 or 1983, she became acquainted with Respondent through church activities. In 1987, Branca sold her mobile home and decided to build a new home in Inverness with the proceeds from the sale of her home in New Jersey and the mobile home. Because she was acquainted with Respondent, she selected him as the contractor. On July 29, 1987, the parties entered into an Agreement Between Owner and Contractor wherein Respondent agreed to construct a "Home for Joan D. Branca" for a cost of $79,900.00, "not counting land aquisition." Although the contract called for Branca to pay Respondent twenty percent at the time the contract was signed, with four equal draws during the construction process, on or about September 29, 1987, she gave him a check in the amount of $50,000.00, payable to American General Enterprises, Inc. Respondent was to hold that sum of money pending the construction of the new home. The contract also contained a handwritten provision that "[i]f property is not found by April 1, 1988, that is suitable to [illegible] the Deposit of $50,000 shall be returned on demand with all interest at normal bank rate." As to this provision, Respondent's testimony that the contract would "die" on April 1, 1988, unless Branca secured a lot, was not contradicted and is hereby accepted. Therefore, Respondent was obligated to build a new home if Branca purchased a lot by April 1, 1988. Otherwise, he was simply required to return her money "on demand," including interest. Despite this self-executing provision, however, the parties continued to act as if there were a viable construction contract between them until at least the spring of 1990. Branca did not own a lot for her new house when she signed the contract. The parties' understanding, however, was that Respondent would build the house when she secured a lot. Until she did so, Branca was offered a job (with free lodging) by Respondent as manager of an apartment complex in Ocala, which Respondent was then constructing. Branca accepted this offer and moved to Ocala in March 1988. While living in Ocala, Branca did not actively search for a lot since she was busy "managing apartments." Even so, Respondent was not authorized to use her money for any other purpose during this period of time since it was to be held strictly for the purpose of constructing her home. Using $5000.00 borrowed from her daughter, in September 1989, Branca purchased two vacant lots in Inverness, one on Diamond Street, the other on Apopka Street. It was her intention to have Respondent construct the new home on the Diamond Street lot. To this end, she made a rough sketch of the home to be constructed. Thereafter, at Respondent's suggestion, she had an architectural draftsman, David Pillsbury, finalize the plans. They were completed on October 14, 1989. Because Branca had to borrow money from her daughter in September 1989 to purchase the two lots, she asked Respondent to return $5,000.00 of her money. On November 29, 1989, Respondent returned $5000.00 to Branca, leaving $45,000.00 of her money still in his possession. Within a few months, Respondent had the Diamond Street lot cleared as if construction were about to begin. When no construction began within a reasonable period of time, Branca asked Respondent if the building permits had been pulled. He replied that the permitting process took time. Finally, at Respondent's direction, on March 13, 1990, Branca filled out a Notice of Commencement form and filed it in the Citrus County public records. Even so, construction was never begun. On March 14, 1990, Respondent unilaterally drew up another "Agreement Between Owner and Contractor" and presented it to Branca for her signature. It called for him to construct a new home within "within 120 days after permits are obtained" for a price of $53,000.00. The agreement acknowledged that "Joan Branca has already payed [sic] $45,000 towards the construction of this home." It further provided that "[t]he ballance [sic] of $8,000.00 shall be after home is complete." At the same time, Respondent orally asked Branca to borrow another $25,000.00 to complete the construction of the home. Respondent even carried her to a local bank in order for her to borrow the money. Branca became suspicious and declined to sign a new contract or borrow the money. By May 1990, Branca had left Ocala and was living in Homosassa, Florida, with a friend. On the morning of May 4, 1990, Respondent visited Branca and tearfully reported to her that he had spent her $45,000.00 on other construction projects. Because of this, on May 10, 1990, Branca drew up a "Legal Agreement" wherein Respondent acknowledged owing her $45,000.00. He also promised to pay that amount by November 1, 1990. The agreement further provided that if he were late in making the payment, Respondent would be liable for a late charge of $500.00 per day. As of May 10, 1990, Respondent had repaid Branca around $6,500.00. Between October 14, 1992, and September 1, 1993, Respondent made various payments to Branca by check and cash. As of September 1993, Branca had been repaid a total of $15,255.00. On June 15, 1993, Branca engaged the services of an attorney who prepared a promissory note which Respondent signed. It required Respondent to pay Branca the sum of $44,000.00 at a rate of $400.00 per month beginning on July 1, 1993, and various balloon payments so that the total debt would be retired by June 1, 2000. When Respondent failed to repay the money as required by the parties' agreement, Branca filed suit in circuit court and on July 2, 1994, received a final civil judgment against Respondent in the amount of $44,286.20. As of the date of hearing, or more than three years later, Respondent had failed to repay any money towards satisfaction of the civil judgment. Respondent offered into evidence an addendum to the original contract dated September 30, 1987. The addendum reflects the purported signature of Branca. In addition, it carries the signature of Respondent, and the signatures of his wife and sister, Phyllis McCrave and Sharon McCrave, and a subcontractor, James McIntire, as witnesses. According to the addendum, Branca agreed that "[n]o work [would] be done" on the project, all previous agreements regarding the $50,000.00 were "null and void," her deposit would be held by American General "to protect it from any claims or liens against it, that might develop, due to the actions of her son, Jim Branca," and Branca's money would be returned "upon her request." As noted below, however, the authenticity of Branca's signature is in dispute. Both sides presented expert testimony on the issue of whether the signature on the addendum dated September 30, 1987, is actually that of Branca. Although the experts sharply disagreed on the genuineness of Branca's signature, the testimony of Petitioner's witness DeRaker is accepted as being the most credible on this issue. Therefore, it is found that the purported signature of Branca has been simulated to appear as her own, and that Branca did not sign the addendum. At hearing, Respondent contended that Branca had entrusted her to keep the $50,000.00 as a result of Branca's seventeen-year-old son being involved in an automobile accident in 1987. According to Respondent, Branca feared that she might be sued and forced to pay a judgment on behalf of her son and therefore wished to hide her assets. Therefore, he asserted that Branca never intended to have him construct a home, and that the contract was simply a way to hide the money. Branca denied this, saying that the wrecked automobile was in her son's name, and not her name, and he had insurance covering the accident. Her explanation is accepted as being the most credible on this issue. Respondent also contended that he offered to return Branca's money in April 1988 but she declined the offer. In May 1989, Respondent claims that he again offered to return the money but Branca wanted Respondent to use the money as an investment in an apartment project in Daytona Beach, Florida. Respondent then says that he used $40,000.00 of Branca's money, but lost it after the project was later abandoned. While Respondent presumably used Branca's money for other purposes, his testimony that he offered to return the money, but that she encouraged him to invest it in other ventures, is not accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding that Respondent is guilty of the violations described in Counts I through V of the Amended Administrative Complaint. As to those violations, it is recommended that Respondent be fined $4750.00 to be paid by such date as may be determined by the Board, and that he be required to either pay Joan Branca $44,286.20, or that he satisfy the civil judgment entered against him on July 2, 1994, in Citrus County, Florida. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Gary L. Asbell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael T. Kovich, Esquire 203 Courthouse Square Inverness, Florida 34450 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, a licensed general contractor, committed the violations alleged in the three-count Administrative Complaint filed by Petitioner and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is the agency of the State of Florida with the responsibility to regulate building contracting. At all times relevant to this proceeding, Respondent has been licensed as a certified general contractor, having been issued license number CG C058340 in 1996. At all times relevant to this proceeding, Ms. McKinney owned and resided in a house (the House) in Opa Locka, Florida. Ms. McKinney’s mother, Mattie P. Mathis, also lived in the House. In 2001, Ms. McKinney solicited bids for an addition she wanted to put on the House. Ms. McKinney and her mother, Ms. Mathis, planned to pay for the addition with life insurance proceeds on the life of Ms. Mathis’s deceased daughter (Ms. McKinney’s sister). On the recommendation of a colleague at her work, Ms. McKinney asked Willie Muse, Jr., to bid on the work. Based on the bids she received, Ms. McKinney hired Mr. Muse to construct the addition to the House. Ms. McKinney told Mr. Muse that she wanted all work to comply with all applicable permitting requirements and laws. Mr. Muse represented to Ms. McKinney that he would get the necessary building permits and that the work would comply with all applicable laws. On July 18, 2001, Ms. McKinney and Ms. Mathis entered into a written contract with Mr. Muse whereby Mr. Muse agreed to construct the addition for the sum of $45,000.00. Mr. Muse has never been licensed as a general contractor in Florida. Ms. McKinney thought Mr. Muse was a licensed contractor and would not have entered into a contract with him if she had known that he was not licensed. Pursuant to the contract, Ms. McKinney and Ms. Mathis paid Mr. Muse the following amounts on the following dates: $6,000.00 on July 20, 2001; $7,500.00 on October 10, 2001; and $13,500.00 on November 2, 2001; for a total of $27,000.00. On or about August 21, 2001, Mr. Muse brought to Ms. McKinney a building permit application form for her to sign. The application form had been filled out before Mr. Muse presented it to Ms. McKinney. Respondent was not present when Mr. Muse presented the form to Ms. McKinney. Respondent’s name, signature, and contractor’s license number appeared on the application form when Mr. Muse presented the form to Ms. McKinney. Ms. McKinney signed the form on August 21, 2001. Ms. McKinney saw Respondent’s name for the first time when she read the building permit application form. Prior to that time, Ms. McKinney and Ms. Mathis had never known or heard of Respondent. At all times relevant to this proceeding, Respondent knew that Mr. Muse was not a licensed contractor. Mr. Muse submitted the building permit application form to the Miami-Dade County Building Department (Building Department), which issued a building permit for the work on the House on October 5, 2001. Mr. Muse commenced working on the House in October 2001, but he never finished. After he received the payment in November 2001, Mr. Muse stopped working on the House for an extended period of time. During that time, Ms. McKinney attempted on several occasions to persuade Mr. Muse to resume work on the House. Prior to stopping work on the House, Mr. Muse removed a portion of the roof of the existing structure, which exposed the interior of the House to the elements. That exposure resulted in extensive damages to the House, including the collapse of the kitchen ceiling from water intrusion. By letter dated April 15, 2002, the Building Department advised Ms. McKinney that her building permit would expire in approximately 30 days. That letter prompted Ms. McKinney to contact the Building Department, where she was told that Respondent was her contractor, not Mr. Muse. Ms. McKinney secured information (from the face of the building permit) that enabled her to contact Respondent’s mother.3 That contact resulted in two meetings between Ms. McKinney and Respondent towards the end of April 2002. During the first meeting, Ms. McKinney related to Respondent the history of the project, including the amounts that had been paid to Mr. Muse. She also showed him the work that had been done and the damages that had occurred. During the second meeting, Mr. Muse was in attendance. Ms. McKinney, Ms. Mathis, and Respondent reached a verbal understanding that was not reduced to writing. They agreed that Respondent would finish the work on the House for the unpaid balance of the contract price $45,000.00 less $27,000.00 paid to Mr. Muse, which equals $18,000.00.4 The parties agreed that Respondent would pay for labor and that Ms. McKinney and Ms. Mathis would pay material suppliers directly and receive credit toward the contract price for such payments. The parties contemplated that Mr. Muse would perform most of the labor because of the monies he had already received. On the basis of the verbal contract, Respondent resumed the work on the House. On June 12, 2002, Respondent presented a draw request for $3,500.00 for electrical, plumbing, and roofing work that had been performed. Ms. Mathis wrote Respondent a check in the amount of $3,500.00 for that work. Ms. McKinney was opposed to paying Respondent the sum of $3,500.00 because she believed he had not completed the work for which he was billing. Ms. Mathis paid that sum despite Ms. McKinney’s opposition. At some undetermined time following June 12, 2002, Ms. McKinney told Respondent that she did not want Mr. Muse working on the House. Respondent then asked to be paid in advance for work to be done on the House because he would have to pay his laborers. Ms. McKinney and Ms. Mathis would not agree to payment in advance. In July 2002, the project was not complete and Respondent’s progress on the work on the House became unsatisfactory to Ms. McKinney. On October 14, 2002, Ms. McKinney filed a complaint against Respondent with Petitioner, claiming, among other things, that Respondent had abandoned the project. Her complaint alleged that work ended on the project in July 2002. At some undetermined time between June and October 2002, Ms. McKinney filed a criminal complaint against Mr. Muse, which resulted in criminal misdemeanor charges being filed against him in Miami-Dade County Court. After she filed the criminal complaint against Mr. Muse, Ms. McKinney told Respondent that she wanted to wait to proceed with the project until she knew what was going to happen with her criminal complaint. In the criminal proceeding, the Court ordered Mr. Muse on April 11, 2003, to pay restitution to Ms. McKinney in the amount of $16,008.04, payable in monthly installments of $300.00. On March 2, 2004, the Court reduced the amount of restitution to $4,000.00, payable in monthly installments of $50.00 beginning April 1, 2004. As of the date of the final hearing in this proceeding, Mr. Muse had paid Ms. McKinney restitution in the total amount of $750.00. As part of the criminal proceeding, Respondent was asked to give his opinion as to the value of the work completed by Mr. Muse and his estimated cost of completing the work. Respondent valued the work completed by Mr. Muse at $14,073.75 (labor and materials). Respondent estimated that it would cost $22,200.00 to complete the project. Both estimates were dated March 23, 2003. On October 1, 2003, Theodore R. Gay, Assistant General Counsel for Petitioner wrote Ms. McKinney the following letter pertaining to the complaint she had filed in October 2002: The Legal Department has evaluated your complaint against the above named contractor [Respondent]. After reviewing the evidence gathered during the investigation of the referenced matter, we have determined that in accordance with the rules and policies of the Construction Industry Licensing Board, this case is appropriately closed with the issuance of a Letter of Caution to the contractor. Because this case has been dismissed without a finding of probable cause, the file will remain confidential and exempt from the public records. On January 6, 2004, Ms. McKinney wrote Mr. Gay a letter that provided, in part, as follows: This letter is a request to re-open the case [against Respondent] because as prior conversation (sic) when I spoke to you in late August 2003 or early September 2003, I informed you that Mr. Jones told me that he would help me as much as possible to complete the construction on my property. Since your letter that stated you didn’t find any error on Mr. Jones’ behalf, I have not heard or seen him since October 2003, nor has any work been performed on my property. . . . Respondent came back to the House after October 2003 and talked to Ms. McKinney about the work. Ms. McKinney told him that she would pay up to a total of $45,000.00 for the work, but that she would not pay above that figure. Because of the estimate Respondent provided in the criminal proceeding dated March 23, 2003, Ms. McKinney believed that Respondent wanted $22,0000.00 to complete the work. However, Respondent never told her that he would not complete the work for a sum equal to $45,000.00 less the sums that had already been paid. Ms. McKinney would not pay Respondent for work until after the work was completed. After Mr. Gay’s letter dismissing the complaint that Ms. McKinney had filed, Respondent did no further work on the House, but he did have further conversations about the project. Ms. McKinney and Respondent could not agree on payment terms for Respondent to complete the project. Ms. McKinney testified that she did not fire Respondent. However, it is clear that she would not let Mr. Muse do further work on her house and she would not pay Respondent until after the work had been done. Ms. McKinney changed the terms of her verbal contract with Respondent by prohibiting Mr. Muse from working on the project. In November 2003, Ms. McKinney and Ms. Mathis had an argument over the money that had been spent on the house. Ms. McKinney talked to Respondent about his helping her obtain a mortgage on the house to pay for the balance of the work on the House. Ms. McKinney told Respondent that she did not want Respondent to ask her mother for any more money. Ms. McKinney told Respondent that she would use him as the contractor to complete the work if she obtained the financing. Ms. McKinney was unable to get the financing due to the condition of the House. The permits obtained by Respondent are still valid. Ms. McKinney has hired various workers on her own in an effort to complete the work on the House. As of the final hearing, the work on the House had not been completed. As of May 19, 2005, Petitioner’s costs of investigation and prosecution of this case, excluding costs associated with attorney time, totaled $920.29.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the Findings of Facts and Conclusions of Law set forth in this Recommended Order. It is further recommended that the Final Order: Find Respondent guilty of the violation alleged in Count I of the Administrative Complaint and impose against him an administrative fine in the amount of $2,500.00; Find Respondent guilty of the violation alleged in Count II of the Administrative Complaint, but impose no additional administrative fine for that violation; Find Respondent not guilty of the violation alleged in Count III of the Administrative Complaint; Order that Respondent be jointly and severally liable to Ms. McKinney and Ms. Mathis with Mr. Muse for restitution in the amount of $4,000.00, minus $750.00 paid by Mr. Muse; and Order Respondent to pay costs of investigation and prosecution of this matter in the amount of $920.29. DONE AND ENTERED this 10th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2005.
