The Issue The first issue in this case is the amount of attorneys' fees to assess against Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Respondent or Division), pursuant to an Order of the First District Court of Appeal (First DCA) granting a motion by Petitioner, Ft. Myers Real Estate Holdings, LLC (Petitioner or Ft. Myers REH), for attorneys' fees pursuant to section 120.595(5), Florida Statutes (2010),1/ and remanding the case to DOAH to assess the amount. The second issue is whether Petitioner is entitled to recover attorneys' fees and costs incurred in this proceeding, and, if so, in what amount.
Findings Of Fact For reasons that the First DCA found to be a "gross abuse of agency discretion," the Division rendered a Final Order dismissing Ft. Myers REH's petition for a formal administrative hearing to contest the Division's denial of Ft. Myers REH's amended application for a quarter horse racing permit. The premise of the Division's Final Order was that Petitioner could not prove that it meets the requirements for a permit, hence its claimed injury was not "redressable." Ft. Myers REH appealed the Final Order. The Notice of Appeal to the First DCA was filed on April 5, 2010, signed by Cynthia Tunnicliff for Pennington, Moore, Wilkinson, Bell and Dunbar, P.A. (the Pennington firm). After two motions to extend the deadline for filing the initial brief, Ft. Myers REH filed its Initial Brief on July 26, 2010. With the Initial Brief, Ft. Myers REH filed a motion for an award of attorneys' fees under section 120.595(5), asserting that the agency action which precipitated the appeal was a gross abuse of the agency's discretion. The motion's prayer for relief asked for "entry of an order awarding the Appellant the attorneys' fees it has incurred prosecuting this appeal, pursuant to . . . Section 120.595(5)." As stated in the opinion, the First DCA found that the Division's Final Order was "contrary to the basic, settled principle of administrative law that a person whose substantial interests are determined by an agency is entitled to some kind of hearing . . . to challenge the agency's decision[.]" The court determined that the dismissal of Ft. Myers REH's petition was "so contrary to the fundamental principles of administrative law" that Petitioner was entitled to an award of attorneys' fees under section 120.595(5). To assess reasonable attorneys' fees, a starting place is necessarily the time records of Petitioner's appellate legal team. Although Judge Farmer offered his opinion that the time records had little to no significance in this case, nonetheless, even Judge Farmer accepted the time-based attorneys' fees shown on those time records as the base amount to which a multiplier should be applied. Therefore, the undersigned examined the time records in the context of the appellate record and considered the conflicting opinions of the parties' experts to assess whether the time incurred by Petitioner's legal team was reasonable in light of the steps needed to successfully prosecute the appeal. There was extensive motion practice in the appeal, which significantly increased the amount of time that might otherwise be considered reasonable for an appeal of an order summarily dismissing a petition for administrative hearing, with no record to speak of from proceedings below, such as would be developed in a trial or administrative hearing. Several motions were filed by the Division, including a motion to dismiss the appeal, which resulted in an Order to Show Cause directing Ft. Myers REH to demonstrate why the appeal should not be dismissed. The Division also filed two different motions to strike, one directed to Ft. Myers REH's response to the Order to Show Cause why the appeal should not be dismissed, and the other directed to the reply brief; both of these motions were denied. Ft. Myers REH filed even more motions than the Division. In addition to the motion for attorneys' fees pursuant to section 120.595(5) and two perfunctory motions for enlargement of time to file the initial brief, Ft. Myers REH also filed a motion for substitution of counsel, making the mid-stream decision that David Romanik, whose expertise was in gaming law, should be counsel of record instead of Cynthia Tunnicliff, whose expertise was in administrative and appellate law, even though both attorneys remained involved before and after the substitution. More substantively, in reaction to the Division's motion to dismiss, Ft. Myers REH filed a motion to supplement the record and a motion for judicial notice, which were denied; a motion to consolidate the appeal with a separate mandamus action it had filed, which was denied; and a motion to strike the Division's response to the motion to supplement the record, or, in the alternative, a motion for leave to respond to new legal issues raised in the Division's response, both of which were denied. The basis for the Division's motion to dismiss was that a newly enacted law rendered the appeal moot, because under the new law, Ft. Myers REH could no longer qualify for the quarter horse racing permit for which it had applied. The Division sought to invoke the general rule that the law in effect at the time of a final decision applies to determine whether to grant or deny an application for a permit or other form of license. See Lavernia v. Dep't of Prof'l. Reg., 616 So. 2d 53, 54 (Fla. 1st DCA 1993). Ft. Myers REH's motion flurry, even though unsuccessful, was a reasonable response to the Division's position in that Ft. Myers REH sought to demonstrate that one of the exceptions to the general rule, as recognized in Lavernia, was applicable. See, e.g., Dep't of HRS v. Petty-Eifert, 443 So. 2d 266, 267-268 (Fla. 1st DCA 1983)(under the circumstances of that case, applicants were entitled to have the law applied as it existed when they filed their applications). In its opinion, the First DCA acknowledged both the Division's mootness argument and Ft. Myers REH's contention that there were circumstances that would preclude the Division from applying the statutory changes to the permit application. The court deemed these issues more suitable for fleshing out in the administrative hearing on remand. See Ft. Myers, 53 So. 3d at 1162-1163. In addition to the other motions, Ft. Myers REH also filed a motion for an award of attorneys' fees and costs pursuant to section 57.105, in which Ft. Myers REH asserted that the Division's motion to dismiss the appeal was unsupported by material facts and then-existing law. The court considered and denied the section 57.105 motion. There were four attorneys who worked on the appeal on behalf of Ft. Myers REH: David S. Romanik from Oxford, Florida; and Cynthia Tunnicliff, Marc Dunbar, and Ashley Mayer, all of the Pennington firm in Tallahassee, Florida. The first three of these attorneys are long-time practitioners with substantial experience and particular areas of expertise. Mr. Romanik, who became the counsel of record in the middle of the appeal, is an attorney with 35 years' experience, gained in private practice and in executive, legal, and consulting positions in the racing/gaming industry. He was described as the "general counsel, sort of," for the Florida interests of Green Bridge Company, which is the parent company of, and primary investor in, Ft. Myers REH. While Mr. Romanik has some experience in administrative litigation and appellate practice, his primary area of expertise is in gaming law. Ms. Tunnicliff is a shareholder of the Pennington firm, with vast experience and a well-established excellent reputation for her expertise in administrative law and administrative litigation under the Administrative Procedure Act (APA), chapter 120, as well as in appellate practice. Ms. Tunnicliff's appellate experience is documented in well over 100 appeals in which she has appeared as counsel of record, spanning the last 25 years. Marc W. Dunbar has been practicing law for 17 years, and he also is a shareholder of the Pennington firm. Like Mr. Romanik, Mr. Dunbar's recognized area of legal expertise is in gaming law. For the last 13 years, he has been head of the firm's gaming law practice group, and he has substantial experience in gaming law and in providing consulting services to the pari-mutuel industry. Mr. Dunbar's testimony was that this has been the focus of his practice and has grown over the years such that it is now virtually all he does. Ashley Mayer was the lone associate who worked on the appeal. Ms. Mayer graduated in 2009 with high honors from Florida State University College of Law, where she was a member of the moot court team. Those who worked with her regularly at the Pennington firm, including Ms. Tunnicliff and Mr. Dunbar, thought very highly of her work as a one-year associate. Based on the expert opinions offered for and against the reasonableness of the time records for these four attorneys, including the hourly rates applied to the time entries, the undersigned finds as follows: there are some obvious flaws and less obvious insufficiencies in the time records that require adjustment; there is a large amount of duplication, which is tolerable to some extent given the stakes, but which exceeds a tolerable degree and requires some adjustment; the hourly rates for the two gaming law experts are too high for the non-gaming law legal services they each provided, requiring adjustment; and that the hourly rate for the one-year associate is too high, requiring adjustment. The time records of each of the four timekeepers will be addressed in turn, starting with the one-year associate, Ms. Mayer. As an example of an obvious flaw in the time records, the very first time entry is for researching and analyzing case law regarding bringing a civil rights lawsuit under 42 U.S.C. section 1983, for 2.8 hours. Another time entry described work related to a separate mandamus action, which Petitioner sought unsuccessfully to consolidate with the appeal. These entries are unrelated to the appeal. In addition, Ms. Mayer performed research regarding the process for assessing appellate attorneys' fees by remand to the lower tribunal. These entries do not relate to the appeal or to litigating over the entitlement to attorneys' fees. Several of Ms. Mayer's entries do not reflect legal work, but, rather, administrative or secretarial work, such as retrieving a law review article from the law library, conferring with a secretary regarding formatting briefs, and revising documents to conform to others' edits. Other than these entries, Ms. Mayer's time records seem generally appropriate, in that she performed a large amount of research before the initial brief, she performed drafting, and she continued to carry out research assignments throughout the appeal. Of the total 66.7 hours claimed, a reduction of 6.4 hours is warranted to account for the inappropriate entries. 60.3 hours are reasonable for Ms. Mayer. An hourly rate of $225 was applied to Ms. Mayer's time. Petitioner's expert attested, in general and in the aggregate, to the reasonableness of the hourly rates in Petitioner's time records for attorneys with comparable experience and skill, but gave no specific information regarding the basis for his opinions. Respondent's expert disagreed and testified that in her opinion, an hourly rate of $225.00 for a one-year associate was excessive. She based her opinion on The Florida Bar's 2010 Economics and Law Office Management Survey, which reported that for the north region of Florida, 47 percent of all attorneys at any experience level charge an hourly rate of $200.00 or less. In the opinion of Respondent's expert, a reasonable hourly rate for Ms. Mayer would be $150.00, instead of $225.00. While Respondent's expert's information was also somewhat generalized, the undersigned finds that based on the limited information provided, a reasonable rate for a highly skilled, but not very experienced attorney one year out of law school, would be $185.00 per hour. A reasonable attorney's fee for Ms. Mayer's legal work on the appeal is $11,155.50. Turning to Ms. Tunnicliff's time records, the hourly rate for Ms. Tunnicliff of $400.00, though high, is accepted as appropriately so. The rate is comparable to the rates charged by other attorneys of comparable skill and experience in the same locale, as ultimately agreed to by both parties' experts. Ms. Tunnicliff's time entries show that in general, she limited her hours appropriately to a high level of supervision, direction, and review, while allowing others, particularly Ms. Mayer, to conduct the more time-intensive research and drafting efforts. Based on the expert testimony and a review of the time record entries, a few adjustments to Ms. Tunnicliff's records are necessary. One-half hour is subtracted for an entry related to mandamus, because the mandamus action was separate and unrelated to work done to prosecute the appeal at issue. Another adjustment is necessary because of an error in the time records: The billing summary shows that Ms. Tunnicliff's total time was 31.6 hours, which was multiplied by the hourly rate to reach the fees sought for Ms. Tunnicliff's time. However, the individual time entries add up to a total of only 24.6 hours. With the additional deduction of one-half hour for work unrelated to the appeal, a total of 24.1 hours will be allowed for Ms. Tunnicliff's time. Applied to the agreed reasonable hourly rate, a reasonable attorney's fee for Ms. Tunnicliff's work on the appeal is $9,640.00. The time records for the two gaming law experts present more difficult issues, because the legal questions presented in the appeal were not gaming law questions; they were administrative law questions and, indeed, "basic, settled" administrative law questions. While certainly gaming law was the substantive, regulatory context in which these issues arose, it is clear from the time entry descriptions of exhaustive, duplicative legal research on rights to administrative hearings, party standing, and what law applies in license application proceedings, that at their core, the questions presented were general administrative law principles and were treated as such. Yet not only one, but two highly specialized gaming law experts whose experience and specialized expertise allow them to command hourly rates of $450 when practicing gaming law, spent most of the total attorney time prosecuting this administrative law appeal. Mr. Romanik's time records claim 195.5 total hours at $450 per hour, while Mr. Dunbar's time records claim 80.6 total hours, of which 30.2 were claimed at the rate of $450 per hour, while 50.4 additional hours were claimed at $300 per hour. The reduced $300 per-hour fee was an adjustment made at the urging of Petitioner's expert to account for research time spent not within Mr. Dunbar's area of expertise. Mr. Romanik's time records require adjustment. In general, many of the types of criticisms of these records by Respondent's expert are accepted, although the undersigned does not agree with the degree of adjustments deemed warranted by Respondent's expert. In general, Mr. Romanik's time entries reflect excessive hours spent by Mr. Romanik, doing tasks that were duplicative of tasks more appropriately performed by Ms. Mayer, which were, in fact, performed by Ms. Mayer, including research and initial drafting. Perhaps one reason for the sheer number of hours invested by Mr. Romanik was that he was performing research on basic, settled principles of administrative law, such as standing, hearing rights, licensing proceedings, what happens when the law changes while a license application is pending, and other questions of administrative procedure. Mr. Romanik's time records also reflect too many basic drafting tasks, such as initially drafting a request for oral argument. The time records also show excessive secretarial or administrative tasks, such as listing and downloading cases and uploading briefs. Not only did Mr. Romanik's specialized expertise in gaming law not facilitate his performing these tasks efficiently, but he inefficiently performed these tasks very expensively, i.e., at the claimed rate of $450 per hour. Nonetheless, Mr. Romanik apparently did the lion's share of work in redrafting the initial brief (initially drafted by Ms. Mayer), drafting the reply brief, drafting the numerous motions and responses to the Division's motions, and performing well at the oral argument. The high stakes and good outcome cannot be denied. Yet the total time claimed would be high at the hourly rate claimed, if Mr. Romanik were the sole attorney working on the appeal. Given his role as the "general contractor," it is conceivable that many of his hours were invested, or should be considered as having been invested, as "client" time in which Mr. Romanik was serving as the client liaison for the prosecution of the appeal to oversee the work done by the attorneys prosecuting the appeal. Regardless of how Mr. Romanik's hours are characterized, they were excessive and duplicative. To adjust for excessive time in tasks outside Mr. Romanik's area of expertise and for duplication, the undersigned finds that Mr. Romanik's time should be reduced by 83 hours. Reflecting the high stakes and good outcome, as well as the aggressive motion practice in the appeal, a reasonable--though still very high--number of hours for Mr. Romanik to have spent in prosecuting this appeal (with the substantial help of three other attorneys) is 112.50 hours. With almost all of the time Mr. Romanik spent in this appeal falling in areas outside of his recognized legal expertise, the undersigned finds that a high, but reasonable, hourly rate to apply to Mr. Romanik's time is $325.00. Essentially, Mr. Romanik's legal services fell more within the legal expertise of Ms. Tunnicliff. If $400.00 per hour is the acknowledged reasonable rate for someone of Ms. Tunnicliff's experience and expertise, the rate to apply to Mr. Romanik's time should be less, although not substantially so, recognizing that Mr. Romanik's gaming law expertise was a big advantage. If intricate issues of gaming law were involved in this appeal, as opposed to just being the substantive, regulatory context in which basic, settled principles of administrative law arose, then perhaps Mr. Romanik could command his standard hourly rate. Instead, with the predominant focus of Mr. Romanik's work, as reflected in his time entries on administrative and appellate law and procedure, the reasonable rate that will be applied to the reasonable time total found above is a blended rate that is discounted because of reduced expertise in the main area, but increased because of expertise in a collateral area. Applying the reasonable rate of $325.00 per hour to 112.50 hours for Mr. Romanik yields a reasonable attorney's fee of $36,562.50 for Mr. Romanik's prosecution of the appeal. Mr. Dunbar's time records suffer from the same essential problem as Mr. Romanik's--he is a gaming law expert, but his expertise was hardly utilized. If it was not necessary to tap into Mr. Romanik's gaming law expertise to any great extent, then it was not necessary and redundant to have a second gaming law expert substantially involved in the appeal. Additional problems with Mr. Dunbar's time records include several time entries with inadequate descriptions (e.g., "Research" or "Research re: key cite authority") and other entries with descriptions that did not seem to relate to the appeal (e.g., several entries two months after the initial brief was filed for "Research re: standards for appellate review of motion denial" when there was no denied motion for which appellate review was sought). Mr. Dunbar's time records had a large number of entries for performing basic research on questions of administrative law or appellate practice, such as standing, hearing rights, standards for supplementing the record on appeal, standards for motions to strike and to consolidate appeals, standards for reply briefs, and similar descriptions. Substantial adjustments are in order to remove the inadequately described time entries and the entries seemingly unrelated to this appeal and to substantially reduce the duplicative research done by Mr. Dunbar outside of his area that was also done by Ms. Mayer and/or Mr. Romanik and/or Ms. Tunnicliff. While some overlap is tolerable to ensure that all bases are covered, the time entries do not sufficiently establish what was added by Mr. Dunbar's substantial time- performing tasks outside his area of expertise to the already substantial time allowed for Mr. Romanik outside his area of expertise. Mr. Dunbar's reasonable time spent as a fourth attorney prosecuting this appeal is reduced by 43 hours, to 37.6 hours. A little more than half of the 37.6 hours found to be reasonable were in the non-research category, such as Mr. Dunbar's review and comment on the draft briefs and motions and assistance in preparation for oral argument. The research hours found reasonable were those that appeared to augment, but not duplicate, work by one or more other attorneys. As with Mr. Romanik, a blended reasonable hourly rate is applied, which recognizes that even for the non-research time allowed for Mr. Dunbar, his work was primarily outside his recognized legal expertise, although his expertise provided benefit in understanding the context in which the issues arose. An hourly rate of $300.00 is reasonable for 37.6 hours of work done by Mr. Dunbar in prosecuting this appeal, equaling a reasonable attorney's fee of $11,280.00. The following summarizes the number of hours, hourly rate, and resulting fee found to be reasonable for each of the four attorneys who aided in prosecuting the appeal: Attorney Hours Hourly Rate Fee Mayer 60.3 $185 $11,155.50 Dunbar 37.6 $300 $11,280.00 Romanik 112.5 $325 $36,562.50 Tunnicliff 24.1 $400 $ 9,640.00 Total hours by all attorneys: 234.50 Total time-based fees: $68,638.00 As previously alluded to, the stakes of this appeal were very high, in that without success in the appeal, Petitioner would have no chance of obtaining the quarter horse racing permit for which it had applied. While success in the appeal would not assure Petitioner that it would ultimately prevail in its effort to secure a permit, winning the appeal was a necessary step to keep the permit application alive and allow Petitioner to take the next step in the process. If, at the end of the long road ahead, Petitioner secures the sought-after permit, the value of that permit could be in the neighborhood of $70 million. Given the stakes, a higher amount of hours and greater degree of duplication were allowed than might normally be considered reasonable. The undersigned finds that there was not a huge risk factor with regard to the outcome of the appeal. While in a general sense and statistically speaking, odds always may be greatly against success in an appeal, those across-the-board statistics are mitigated in this case by such a clear violation of a "basic, settled" and "fundamental" principle of administrative law and due process. The complexity and novelty of the issues on appeal are reflected, as one would expect, in the number of hours found to be reasonable for Petitioner's team of attorneys to have spent in prosecuting this appeal. Even as reduced, the total hours found reasonable for this appeal are nearly three times the amount of time Respondent's expert would expect in the typical appeal. Thus, the hours found to have been reasonably invested were substantially higher than typical for an appeal, when one might have expected less hours than typical since this appeal did not follow a trial or administrative hearing. No evidence was presented to show that any of the four attorneys on Petitioner's appeal team were precluded from taking other work because of their role in the appeal or that there were any time constraints placed on the attorneys, either by the client or the circumstances. The evidence was not entirely clear regarding the nature of the arrangements with Ft. Myers REH for payment of attorneys' fees for the appeal. Two separate contingency fee agreements were admitted in evidence. One agreement, "[a]s of August 15, 2010[,]" was between Ft. Myers REH and Mr. Romanik (and his firm, David S. Romanik, P.A.). The operative term of the agreement provided that "[u]pon and after the execution of this fee agreement, the [Romanik] Firm shall handle this matter and all aspects of it on a contingent fee basis." The "matter" covered by the agreement was broadly described as "the pursuit of the issuance by the Division of Pari-Mutuel Wagering of a quarter horse racing and wagering permit . . . ." Therefore, from August 15, 2010, forward, Mr. Romanik and his firm agreed to be compensated on a contingent fee basis for not only the appeal, but also, any subsequent administrative hearings if the appeal was successful and any other administrative or judicial litigation required to secure the permit. Services would be considered successfully completed upon commencement of Ft. Myers REH's gaming operation pursuant to the permit. For such successful services, the Romanik firm would receive $5 million. In addition, the agreement provided that the firm would be entitled to "any and all fees that may be awarded" by any court or administrative tribunal. No evidence was presented regarding the prior fee arrangement that was in place until August 15, 2010, when the contingent fee arrangement took effect. Mr. Romanik and his firm entered into a separate contingency fee agreement with the Pennington firm to secure the Pennington firm's assistance, as a subcontractor, in prosecuting the appeal of the Division's dismissal of Ft. Myers REH's request for an administrative hearing to contest the denial of its quarter horse permit application. The agreement, dated September 1, 2010, was called "a revised representation agreement," which superseded "all prior agreements related to this matter." Payment for services under the agreement was contingent on success in the appeal and was set at "the greater of $100,000 or any fee award from the court, if any." No prior representation agreement for services provided by the Pennington firm in the appeal before September 1, 2010, either with Mr. Romanik and his firm or with Ft. Myers REH, was offered into evidence. However, Mr. Dunbar testified that before the Pennington firm entered into a contingency fee arrangement with Mr. Romanik and his firm, the Pennington firm provided services to Ft. Myers REH under a standard fee agreement by which the Pennington firm attorneys provided legal services for which they billed and were paid at their standard hourly rates. As of August 16, 2010, the standard fee agreement between Ft. Myers REH and the Pennington firm was apparently still in place, because in the motion for section 57.105 sanctions served on Respondent on August 16, 2010, and subsequently filed with the First DCA on September 20, 2010, Mr. Dunbar represented that Ft. Myers REH "had retained the [Pennington law firm] to represent it in this matter and has agreed to pay its attorneys a reasonable fee for their services." This statement was not qualified by any contingency, such as that Ft. Myers REH only agreed to pay a reasonable fee to the Pennington firm if the appeal was successful. Thus, although Mr. Dunbar seemed to indicate in his testimony that the September 1, 2010, contingent fee agreement was intended to apply retroactively, that testimony is inconsistent with the representation in the section 57.105 motion signed by Mr. Dunbar. The evidence establishes that contingency fee agreements were entered into midway through the appeal. The greater weight of the credible evidence was insufficient to prove that before August 15, 2010, the attorneys providing services in the Ft. Myers REH appeal would only be paid if the appeal was successful. Thus, the undersigned finds that the fee arrangements for the appeal were partially contingent. The contingent fee agreements were reached as an accommodation to Ft. Myers REH's desire for such arrangements, rather than as an enticement that had to be offered by Ft. Myers REH in order to secure competent counsel to represent it in the appeal. No evidence was presented detailing the nature and length of Petitioner's relationship with its team of attorneys. As noted, Mr. Romanik has a relationship with Petitioner and its parent that is akin to general counsel over the parent's Florida interests, though it is unknown how long this relationship has existed. The Pennington firm, likewise, has done work for Petitioner and its parent before and has sent invoices for legal services to Mr. Romanik for his review, approval, and transmittal to the parent for payment. It is unknown how extensive or over what period of time this relationship existed. Petitioner established that it incurred an additional $28,087.00 in attorneys' fees charged for litigating the reasonable amount of attorney's fees in this proceeding, plus $44,016.00 in expert witness fees. In addition, Petitioner incurred $1,094.43 for expense items, of which $409.50 represents the cost of the final hearing transcript, and the balance represents costs for copying, courier service, and postage. Respondent did not dispute the reasonableness of those attorneys' fees, expert witness fees, and costs.
The Issue The issue in this case is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty is appropriate.
Findings Of Fact Based upon the testimony of the witnesses and the evidence presented and the entire record in this proceeding, the following material and relevant facts are found. At no time material hereto was Respondent, Donald Clark, licensed by the State of Florida Construction Industry Licensing Board to engage in construction contracting. At no time material hereto was Cancun Development Company ever qualified or certified by any State of Florida agency as a certified contractor. With knowledge of that he was not licensed by the State of Florida to solicit, engage in, nor contract for construction work, Respondent entered into an oral agreement with homeowner Ms. Eichar to build a second-story addition to her home, located in Indian Rocks Beach, Florida, for a contract price of $30,000.00. Respondent, who was paid by Ms. Eichar a total of $25,000.00, subcontracted with Mr. Erwin, a licensed electrical contractor, to do the electrical work at the Eichar's residence for $2,364.00. Respondent, after notice, failed to attend the formal final hearing regarding this matter. The investigative and prosecution costs to the Department of Business and Professional Regulation, excluding cost associated with attorney time, were $550.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered by the Department as follows: Finding Respondent, Donald Clark, guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint herein filed and imposing as a penalty an administrative fine in the amount of $5,000.00. Assess costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $550.70. DONE AND ENTERED this 23rd day of July, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 23rd day of July, 2002. COPIES FURNISHED: Donald Clark 813 East Bloomingdale Avenue Suite 252 Brandon, Florida 32720 Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue This order addresses Petitioner's motion for a recommended order of dismissal. The motion argues that the Department of Highway Safety and Motor Vehicles (Department) is without jurisdiction to consider the verified complaint as the proposal submitted by the Respondents does not comply with Section 320.643, Florida Statutes.
Findings Of Fact Respondent, Rick Starr Lincoln-Mercury, Inc. (RSLM), is a Florida corporation conducting business at 5400 South U.S. Highway 1, Fort Pierce, Florida. Rick Starr is the sole owner of RSLM. Rick Starr is the sole officer and director for RSLM. Rick Starr is the sole owner of Rick Starr Nissan which, at all times material to this issue, is located at 5400 South U.S. Highway 1, Fort Pierce, Florida. Petitioner entered into a dealer agreement with RSLM doing business as Rick Starr Nissan on March 28, 1990. That agreement was later superseded by an agreement between the parties on September 24, 1990. The dealer agreement described above was the subject matter of an administrative hearing conducted by Hearing Officer Rigot. The central issue of that case, DOAH case no. 92-5187, was whether the franchise agreement (used interchangeably herein with "dealer agreement") could be terminated in accordance with Section 320.641, Florida Statutes. Pertinent to this case is the following finding of fact entered by Hearing Officer Rigot: 59. Starr's failure to meet the March 30, 1992, deadline extended to May 1, 1992, by which (sic) to have an exclusive Nissan facility operational constitutes a material and substantial breach of Starr's Term Agreement since Starr's promise to construct or acquire an exclusive facility for Nissan was the basis upon which Nissan entered into the Term Agreement with Starr. Similarly, Starr's failure to meet the interim construction deadlines constituted a material and substantial breach. The fact that Nissan did not declare its Term Agreement with Starr breached and, therefore, terminated as each construction interim deadline passed is unimportant. The construction deadlines only applied if Starr intended to construct a facility. Starr's obligation under the Term Agreement could have been met up to the final deadline by Starr's acquisition of an existing facility which met Nissan's guidelines. Nissan did advise Starr periodically during the Term Agreement that Starr was in default and had committed a material and substantial breach of the contract by failing to meet the construction deadlines; however, Nissan would not have been in a position to consider the contract terminated until after the final deadline for having an operational and exclusive Nissan facility. Additionally, Hearing Officer Rigot reached the following conclusions of law: Starr's breach of the franchise agreement, which is not seriously disputed in this proceeding, was material and substantial. On strikingly similar facts, the Eleventh Circuit Court of Appeals found that the dealer's failure to construct a facility pursuant to the terms of a two-year term franchise agreement warranted its termination. Dick Winning Chrysler-Plymouth of Ft. Myers, Inc. v. Chrysler Motors Corporation, supra. The very reason Nissan required Starr to execute a Term Agreement was to require Starr to provide new dealership facilities for Nissan. Exhibit A in both the March Agreement and the September Agreement specifically provided that Starr's failure to meet the deadlines for providing new dealership facilities would constitute a material breach of the Agreement. Nissan's written and oral communications with Starr stressed the importance of Starr providing exclusive facilities and emphasized that Starr's failure to comply with Exhibit A constituted a material breach of the Agreement. Starr's argument that Nissan waived its right to insist on Starr's performance under the Agreement is without merit. For over two years Nissan attempted to obtain Starr's compliance with his contractual obligation. The evidence shows that Starr did not take seriously his contractual obligation and that Starr made no serious attempt to comply with any of the options given to him for fulfilling that obligation. Other than delay and failure to respond to Nissan's repeated requests for Starr to make a decision and proceed forward, the only affirmative act done by Starr was to send Nissan a drawing of where he would place a Nissan facility on the Lincoln-Mercury site. Nissan did not terminate the Agreement as and when Starr missed each of the interim deadlines. At the same time, however, Nissan insisted on complete performance by final deadline. Starr submitted to Nissan in November 1991 an uninformative drawing of the facility it would provide for Nissan adjacent to the Lincoln-Mercury facility, followed by a second uninformative drawing. On December 23, 1991, Starr submitted a site plan showing the facility and its location on the property and submitted the data reflecting the square footage of the different components in January 1992. Therefore, Starr did not receive approval of its construction plans until early February, shortly before the expiration of the Term Agreement. Nissan in good faith: (A) offered to extend the interim and final deadlines; (B) offered to extend those dates further at Starr's request; and (C) extended the expiration date of the Agreement to May 1, 1992, to enable Starr to execute an amendment memorializing the parties' agreement on a second extension. Nissan's acts do not show a waiver of its right to obtain performance pursuant to its contract with Starr; rather, they demonstrate Nissan's continuing good faith in its dealings with Starr. The final order entered by the Department on August 5, 1993, adopted the recommended order from DOAH case no. 92-5187, and terminated the franchise agreement. Thereafter, RSLM timely filed a notice of administrative appeal. The final order is currently before the First District Court of Appeal with oral argument scheduled for October 12, 1994. The Department has entered an order staying its final order pending the outcome of the judicial review. Subsequent to filing the appeal, on or about April 5, 1994, RSLM adopted a resolution which provided, in part: WHEREAS, the Board of Directors for RICK STARR LINCOLN MERCURY, INC., has determined it to be in the best interest of the corporation to sell the property described in Exhibit "A" attached hereto; it is RESOLVED that RICK STARR, the President of RICK STARR LINCOLN MERCURY, INC., is authorized and directed to execute all documents necessary and proper to carry out the purposes of this resolution. The property described above as "Exhibit 'A'" was Rick Starr Nissan. The franchise is to be acquired by Nissan of St. Lucie, Inc. (NSL), a Florida corporation. Based upon a resolution of NSL, Rick Starr is empowered to execute all documents necessary and proper to carry out the purchase. To that end, Rick Starr executed a notice to Petitioner advising of the proposed transfer to NSL, which, at the time, stated NSL's address to be 5400 South U.S. Highway 1, Fort Pierce, Florida. Additionally, Rick Starr as secretary for NSL, executed a letter to Petitioner's regional general manager dated April 6, 1994, that represented he had read the terms of the franchise agreement and that NSL agrees to comply with all the terms of same. Finally, Rick Starr, again as secretary for NSL, executed a letter to Petitioner's regional general manager dated April 6, 1994, that represented NSL would relocate the dealership to 4405 U.S. Highway 1, Fort Pierce, Florida (the proposed dealership site). Rick Starr owns one-third of the shares of NSL. The other one-third owners are Kenneth Carpi and Jeff Ross. According to Mr. Starr, he and Mr. Carpi are "very, very good friends." Mr. Starr described Mr. Ross as his "best friend." The three men also own JKR Properties, Inc. (JKR), a Florida corporation. JKR owns the property which is the proposed dealership site. On July 1, 1994, RSLM executed a lease with JKR for the proposed dealership site effective August 1, 1994. The NSL shareholder agreement provides, in part: Any dispute between the general manager and the shareholders will be decided by a majority vote. However, the shareholders acknowledge and agree and reserve to Rick Starr so long as Carpi, Ross and Starr remain shareholders, the right to veto the decisions of the remaining shareholders should Starr determine in his sole discretion that any irreparable injury to the corporation is being suffered or is threatened as a result thereof. One of the reasons Mr. Starr insisted on the foregoing language in the shareholder agreement was to insure he would have the final word if another person offered to purchase the dealership. Such protection is understandable since the purchase price to be paid by NSL is below the market value. Mr. Starr executed the purchase and sale agreement for both the buyer and seller. Mr. Starr did not acquire an interest in the proposed dealership site until almost a year after the final order was entered in DOAH case no. 92-5187. Mr. Starr was aware of the availability of the proposed dealership site in as early as mid-1991 since the location was recommended to him by Petitioner's representative. Mr. Starr intends to relocate Rick Starr Nissan to the proposed dealership site regardless of whether or not the transfer to NSL is approved. The relocation of Rick Starr Nissan at this time does not cure the breach of the dealership agreement which resulted in the cancellation of same.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order concluding that the Department is without jurisdiction to consider the verified complaint as the proposed transfer is not within Section 320.643, Florida Statutes. DONE AND RECOMMENDED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 29th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3103 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 30, 36 through 39, 41 through 44, 46, 48, 49, 50, 52 through 60, 63 through 68, and 70 are accepted. Paragraph 31 is rejected to the extent it suggests that Mr. Carpi must sell his shares by the use of the word "would." It is accepted Mr. Carpi may sell his shares and that if he does so Mr. Starr and Mr. Ross will become 50 percent shareholders. Paragraph 32 is rejected as to the characterization of the paragraph being other than as stated above. The exhibit speaks for itself. Paragraph 33 is rejected as irrelevant. Paragraph 34 is rejected as irrelevant or argument. Paragraph 35 is rejected as irrelevant or argument. The first sentence of paragraph 40 is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 45 is rejected as irrelevant. Paragraph 47 is rejected as argument, or not supported by the weight of the evidence. Paragraph 51 is rejected as irrelevant or argument. Paragraph 61 is rejected as irrelevant or argument. Paragraph 62 is rejected as irrelevant or argument. Paragraph 69 is rejected as irrelevant or argument. Paragraph 71 is rejected as irrelevant or argument. Rulings on the proposed findings of fact submitted by the Respondent: 1. Respondents presented additional argument not in the form of an proposed recommended order; therefore, no proposed findings of fact were submitted for acceptance or rejection. COPIES FURNISHED: Michael J. Alderman Room A432 Neil Kirkman Building Division of Motor Vehicles Tallahassee, Florida 32399-0635 Dean Bunch Cabaniss, Burke & Wagner, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Kevin A. Russell Ruth F. Masters Latham & Watkins 233 S. Wacker Drive Suite 5800, Sears Tower Chicago, Illinois 60606 Walter E. Forehand Myers & Forehand 402-B North Office Plaza Drive Tallahassee, Florida 32301 Nissan of St. Lucie, Inc. 5400 South U.S. 1 Fort Pierce, Florida 34982 Kenneth J. Carpi 5810 N.W. 26th Court Boca Raton, Florida 33496 Jeff Ross 8159 Pinnacle Peak Las Vegas, Nevada 89113 Rick Starr 5400 South U.S. 1 Fort Pierce, Florida 34982
Findings Of Fact Petitioner, Jack Rubenfeld, resides at Apartment 201, Building 220, 10466 Sunrise Lake Boulevard, Sunrise, Florida. He leases the apartment from Sol Berman, who is the owner of the apartment. Berman is the person who made application for electric service at Apartment 201 with respondent, Florida Power and Light Company (FPL), and all electric bills are sent in Berman's name to the Sunrise address. However, under the Berman-Rubenfeld lease, Rubenfeld is required to pay all electric bills for service rendered by FPL to the apartment, and has done so since moving into the apartment in January, 1985. FPL is subject to the regulatory jurisdiction of the Florida Public Service Commission (FPSC or agency). As such, it is required to file a tariff with the agency setting forth its approved rates and charges, and pertinent regulations governing election service. Paragraph 7.3 of FPL Tariff Sheet 6.060 provides that: When service used is measured by meters, the company's accounts thereof shall be accepted and received at all times, places and counts as prima facie evidence of the quantity of electricity used by the customer unless it is established that the meter is not accurate within the limits specified by the commission. For the first seven months of 1985, Rubenfeld received bills from FPL reflecting the following meter readings, kilowatt hours (KWH) and charges: Service To Reading KWH Charges 01/22/85 08615 439 $42.66 02/21/85 09052 437 43.93 03/21/85 09372 320 33.95 04/22/85 09559 187 23.01 05/21/85 09943 384 40.28 06/20/85 10600 657 64.23 07/22/85 11202 602 59.41 All bills were timely paid by Rubenfeld. 4. On an undisclosed date in July, Rubenfeld and his wife, who are the only occupants of the apartment, left the State to visit New York City. While he was gone, he left the central air-conditioning unit on at 80 degrees, and his dehumidifier unit at an undisclosed setting. It is not known when Rubenfeld returned to Florida. On or about August 21, 1985, Rubenfeld's meter was read by an FPL meter reader who recorded a meter reading of 11,418 KWH and consumption during the prior thirty days of 216 KWH. A bill for $25.54 was thereafter sent to Rubenfeld who paid it on August 26, 1985. However, a subsequent examination of Rubenfeld's account, as discussed hereinafter, led FPL to believe that the meter reader misread a "1" for a "2" on the meter, and the correct meter reading should have been 12,418 (and not 11,418), or 1,000 KWH more than Rubenfeld's bill reflected. According to FPL testimony, such an error is not an unusual occurrence in its business. On or about September 20, 1985, a meter reader checked Rubenfeld's meter and noted a reading of 13,463, or a consumption of 2,045 K since the meter was last read on August 21. This equated to a bill of $201.12 for the thirty day consumption period. It is this bill that is in dispute. At the same time, FPL accounting personnel noted that Rubenfeld's consumption on the September 20 reading was outside the normal range and accordingly directed that Rubenfeld's meter be reread on September 30 to verify the accuracy of the September 20 reading. The check reading found the earlier reading to be correct. The bill was then mailed to Rubenfeld who understandably became irate and questioned its accuracy. After Rubenfeld complained to FPL personnel, a second check reading was performed on October 8, and a third on October 14. In addition, at Rubenfeld's request, FPL removed Rubenfeld's meter for testing on October 21 and found it to be within allowable guidelines set forth in Rule 25-6.52, Florida Administrative Code. The three check readings made on September 30, October 8 and October 14 were also used as a cross-check to determine whether Rubenfeld's consumption during that period of time was comparable to what he had supposedly used during August and September. The check reading on September 30, or ten days after the meter was last read on September 20, revealed consumption of 354 KWH during the ten day period, or 35.4 KWH per day. The second check reading on October 8 revealed that during the preceding eight day period, Rubenfeld had used 241 KWH, or 30.1 KWH per day. The final check reading on October 14 reflected that Rubenfeld has used 232 KWH over the preceding six days, or 38.6 KWH per day. By annualizing those amounts over a full thirty day period, which is comparable to the billing cycle, Rubenfeld's monthly consumption would have been approximately 1062, 903 and 1158 KWH, respectively, based upon his consumption during that twenty-four day period. Based upon the above checks and testing, FPL concluded that the meter reader had erred on the August 21 reading, and substantially understated Rubenfeld's actual consumption on that bill. However, in an effort to give Rubenfeld the benefit of the lower cost per KWH charged on the first 750 KWH used by a customer during each billing cycle, FPL rebilled the account over a two month period, thereby spreading the high consumption over two billing periods. Rubenfeld contended that he could not have used around 1000 KWH per month during July-August and August-September, particularly since he gas gone during a part of that time. However, he conceded he left two major appliances (air- conditioner and dehumidifier) operating while he was absent from the state, and uncontradicted testimony established that the apartment unit and appliances could have easily used the consumption in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered finding that the electric bill in the amount of $201.00 was properly assessed and that it be paid by petitioner. DONE AND ORDERED this 15th day of October, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 15th day of October, 1986.
The Issue The issue is whether Petitioner's application for reinstatement of his license as a general contractor should be granted or denied.
Findings Of Fact Stipulated Facts Petitioner was previously issued Certified General Contractor's License number CGC42026. His license was active in the 2004 renewal cycle, became delinquent-active in the 2006 renewal cycle, and null and void at the start of the 2008 renewal cycle. Due to an executive order of the Governor relating to tropical storms, Petitioner's license became null and void on October 2, 2008. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. Petitioner timely paid the renewal fee ($518) to renew his license. Petitioner completed and reported two continuing education hours for the reporting period ending August 31, 2008. Petitioner completed and reported 44 continuing education hours through July 5, 2011, and is currently up to date with all of his required continuing education credit hours. While Petitioner completed and reported a portion of his required continuing education hours, he did not complete and report all of his required continuing education hours to renew his license during the 2008 renewal period. This was due to financial difficulty and an inability to pay for continuing education credit hours. At present, the total hours Petitioner completed and reported would fulfill his 2006, 2008, and 2010 continuing education requirements. A license becomes null and void if it is not renewed within two years of the renewal date. Petitioner filed his application pursuant to section 455.271(6), Florida Statutes, to reinstate his Certified General Contractor's License number CGC42026. The Department entered its Notice of Intent to Deny the application. Following the Board's issuance of a Corrected Notice of Intent to Deny, Petitioner filed an Amended Petition for Formal Administrative Proceedings. The Corrected Notice stated that Petitioner's license expired due to non receipt of continuing education credits for renewal and, following the delinquency period, became null and void. The reasons for the denial set forth in the corrected notice were as follows: Applicant failed to present evidence of a good faith effort to comply with the license renewal statutes and rules and failed to present evidence that rises to the level of illness or unusual hardship that would justify the failure to renew the license. The Board approved the application of Alberto Munoz to reinstate his Certified Pool/Spa Contractor's License pursuant to section 455.271(6) at the July 14, 2011, meeting of the Board. The application filed by Mr. Munoz stated that his license had gone null and void because he failed to pay the required license renewal fee due to undue due to undue financial hardship. The Board approved the application of Edwin W. Steffen to reinstate his Certified Plumbing Contractor's License pursuant to section 455.271(6) at the August 11, 2011, meeting of the Board. The application filed by Mr. Steffen stated that his license had gone null and void because his "two cycle inactive status expired in August 2010." Further, Mr. Steffen cited financial difficulties following the "2009 market crash that hurt [him] significantly," leading him to "go back into the workforce." Neither the Department nor the Board has adopted any rules pertaining to applications to reinstate licensees pursuant to section 455.271(6) other than a Department approved application form. Facts based upon evidence of record Petitioner's Certified General Contractor's (CGC) license was active during the 2004 renewal cycle, and became delinquent-active in the 2006 renewal cycle. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his CGC license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. During the 2006 and 2008 renewal cycles, Petitioner worked as a construction foreman in remote encampments in Puerto Rico and in the U.S. Virgin Islands. Although these jobs were full-time, he earned very little money on these projects. During this time, Petitioner's wife and three children remained at home in Puerto Rico. He earned only enough during this time for his family to subsist. Although working in remote locations in Puerto Rico and in the U.S. Virgin Islands during this time, Petitioner insists that he always intended to return to Florida and was actively seeking work here. He did not finish working in the remote encampments until 2009. While working in the remote locations, he had no access to the Internet and relied on phone calls to friends in an attempt to find appropriate yet affordable continuing education courses. The courses he learned of were expensive at a time when he was earning little money and trying to support his family. Petitioner's testimony in this regard is deemed credible and is accepted as fact. When Petitioner submitted his application for reinstatement of his license, he included a money order for $100 as required. During this period of time, Petitioner paid his renewal fee and completed two continuing education credit hours, but was unable to afford the required number of authorized continuing education credits, and was not in a place from which he could travel to attend live courses. Petitioner made a good-faith effort to comply with the license renewal statutes and rules. He paid the renewal fee and has since completed the necessary continuing education requirements.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order granting Petitioner's application for reinstatement of his license as a general contractor. DONE AND ENTERED this 13th day of January, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of January, 2012.
Findings Of Fact At all times relevant hereto, respondent, Jerry A. Jennings, held certified general contractor license number CG C020766 and certified residential contractor license number CR CO2OO84 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He has held the licenses since June, 1981 and February, 1982, respectively. Then the relevant events herein occurred, Jennings was operating a construction business under the name of Quality Control Construction in Port St. Lucie, Florida. He now resides in Casselberry, Florida and is no longer active in the construction business. Respondent formed Quality Control Construction (QCC) in January, 1981 and operated under that name as a subcontractor doing interior trim work on condominium projects in the Port St. Lucie, Florida area. Respondent did not qualify QCC with the State. In May, 1982, Jennings met with the project manager for Riverside Associates, Limited (Riverside), a development firm in Fort Pierce, Florida, and agreed to serve as general contractor and construction coordinator on a Riverside project in Fort Pierce. The job involved the renovating of an old three-story structure known as the Fort Pierce Hotel into an office building. The agreement was entered into by Riverside and respondent doing business as Quality Control Construction. Jennings applied for and obtained all applicable building permits on the job using his state contractor's license. Under the terms of the agreement Riverside agreed to make payments to QCC which in turn was responsible for insuring payment to the subcontractors and materialmen on the job. The work on the project was done in phases. The first phase was completed in January, 1983 when a partial certificate of occupancy was issued by the City of Fort Pierce. Because of a cash flow problem on the part of the developer, work on the next phase did not commence until June, 1983. At that time, QCC and Jennings agreed to finish the job and Jennings obtained all applicable permits. Although Jennings claims it did not include any electrical work, it is found that the last phase included a subcontract agreement by Jennings and White Electric Company (White) for White to do all remaining electrical work for a cost of $2,994. This is evidenced by the fact that Jennings obtained a permit on July 18, 1983 to do additional structural, electrical and air conditioning work on the project, and corrobarative testimony by a representative of White. On August 9, 1983, White submitted a bill to QCC for $2,994 representing the work performed by that subcontractor. Jennings forwarded the bill to Riverside, and on August 22, 1983, Riverside cut a check in that amount payable to QCC. The check contained the notation "For Payment to White Electric." The check was deposited by QCC into its bank account the following day. When White did not receive payment from QCC it contacted Riverside to obtain payment. A representative of Riverside attempted to locate Jennings but learned he had moved and his telephone was disconnected. After some investigation, Riverside determined that respondent had moved to Pinellas County. A certified letter was sent by Riverside to Jennings in October, 1983 requesting payment of the money due White but he did not reply. In November, 1983 a Riverside representative talked by telephone with Jennings who advised Riverside that he had financial problems and used the money due White to relocate to the west coast. Respondent did not timely notify petitioner of his change in address from Fort Pierce to Pinellas County. Riverside eventually set up a payment schedule and finally fully reimbursed White in April, 1984. To date, Jennings has not repaid Riverside. Jennings now resides in Central Florida, is in the process of filing a bankruptcy petition, and does not use his contracting licenses. Jennings claimed at hearing that Riverside never fully paid him for his services and therefore he was justified in retaining the $2,994 intended for White. However, he did not file a lien on the job, made no formal demands for the money allegedly due, and presented no documentation to support the claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I, II and III of the administrative complaint and that he pay a $1,000 administrative fine. It is further recommended that his two contracting licenses be suspended for one year, but if full restitution is made to Riverside, the suspension period be reduced to thirty days. DONE and ORDERED this 2nd day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 2nd day of May, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire 130 North Monroe St. Tallahassee, Florida 32301 Jerry A. Jennings 420 Copperstone Circle Casselberry, Florida 32707
