The Issue Whether the vessel ("Imagine") owned by Petitioner, William Hackett ("Petitioner"), is a "derelict vessel" within the meaning of section 823.11, Florida Statutes (2019); and, therefore, subject to the provisions of sections 376.15(3), 823.11, 705.101(3), and 705.103, Florida Statutes.
Findings Of Fact On January 4, 2020, Officer Glen Way, a sworn FWC law enforcement officer, was on water patrol in an FWC patrol vessel within the public waters of Key West Harbor in Monroe County, Florida, when he observed a vessel (a 32-foot 1967 Hatteras known as "Imagine") sunken and nearly 90% submerged. There were no persons on board and the vessel looked abandoned. The electrical, propulsion, steering systems, and engines were well under sea water and inoperable. Based on his investigation, Officer Way concluded that the vessel suffered a severe marine casualty, had been discarded as sunk with no intrinsic value, and was derelict. His investigation further revealed that the vessel was owned by Petitioner. On January 8, 2020, Officer Way spoke with Petitioner and explained to him the derelict vessel process. That same day, Officer Way emailed Petitioner an Acknowledgement of Receipt of Documentation Related to A Derelict Vessel Determination. Subsequently, Petitioner had the vessel raised from being sunken and tied to a commercial salvage barge with a crane. Although the vessel was no longer sunk, it had been sunk for over two months and Officer Way observed that no corrective action had been taken by Petitioner to correct the systems. Significantly, Officer Way observed that the vessel’s propulsion and steering systems were still inoperable, the onboard engine was substantially corroded, and marine growth was visible along the waterline of the entire vessel. In addition, windows were boarded up with plywood, blocking the ability to safely navigate or operate the vessel upon the water. Officer Way also observed a 25-horsepower outboard motor affixed to the transom of the vessel. However, Officer Way persuasively and credibly testified that a 25-horsepower outboard motor is insufficient to propel the vessel safely upon the public waters of the State of Florida. In sum, the vessel was still wrecked, junked, substantially dismantled, and derelict. Subsequently, on July 28, 2020, and at 8:30 a.m. on August 13, 2020, Officer Way observed that the vessel was again sunk, inoperable, abandoned, left, wrecked, junked upon the public waters of the State, and derelict. The vessel has no intrinsic value. At the hearing on August 13, 2020, Petitioner candidly acknowledged that the vessel was again sunk and not operational.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order finding Petitioner’s vessel, "Imagine," derelict under section 823.11, abandoned under chapter 705, and subject to the provisions of sections 376.15(3), 823.11, 705.101(3), and 705.103. DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) William Hackett 419 Southard Street Key West, Florida 33040 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Section 321.051, Florida Statutes authorizes the creation of a system for utilizing qualified wrecker operators to remove wrecked, disabled, or abandoned vehicles. The Department of Highway Safety and Motor Vehicles has created a rotation system in which wrecker operators within designated zones are called on a rotating basis to respond to Florida Highway Patrol (FHP) calls. This rule challenge attacks the "place of business" rule as promulgated in Rule 15B-9.003(2), Florida Administrative Code and the non-rule policy interpreting the "place of business" requirement of the duly promulgated rule, on the basis that they are invalid exercises of delegated legislative authority and are arbitrary, capricious, and violative of constitutional equal protection with respect to these Petitioners, Murphy's and Lyons. With regard to the non- rule policy, it is also attacked because it has not been adopted pursuant to Section 120.54, Florida Statutes. BACKGROUND AND PROCEDURE The parties stipulated that there would be a unified record; that is, all evidence and testimony would be applicable to the Administrative Complaint proceeding and to the rule challenge proceeding. Oral testimony was received from Lt. Col. Carmody, FHP; Lt. Wessels, FHP; Howard Kauff, Harold Murphy, and Donald Lyons. DHSMV's Exhibits 2-9 were admitted. DHSMV withdrew its proposed Exhibit 1. Murphy's and Lyons' Exhibits 1-4 were admitted in evidence. A transcript of proceedings was provided and the parties have submitted proposed findings of fact and conclusions of law, the proposed findings of fact of which have been ruled upon in the appendix hereto pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact The parties do not dispute that DHSMV's grant of authority stems from Section 321.051, Florida Statutes (1987) which in its entirety provides as follows: 321.051 A wrecker operator system for removal of wrecked, disabled, or abandoned vehicles.-- The Division of Florida Highway Patrol of the Department of Highway Safety and Motor Vehi- cles is authorized to establish within areas designated by the Patrol a system utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from an accident scene or for removal of abandoned vehicles, in the event that the owner or operator is incapacitated or unavailable or leaves the procurement of wrecker service to the officer at the scene. All reputable wrecker operators shall be eligible for use in the system provided their equipment and dri- vers meet recognized safety qualifications and mechanical standards set by rules of the Division of Florida Highway Patrol for the size of vehicle it is designed to handle. Duly promulgated Rule 15B-9.003(2), Florida Administrative Code, which has been challenged in this proceeding, provide: To be eligible for approval to tow in a particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified opera- tors in a particular zone, the Division Director or his designee may designate qualified out of zone wrecker operators to be called in that zone. Some other subparagraphs of Rule 15B-9.003 which were duly promulgated and which have not been challenged in this proceeding are: ... Wrecker operators shall have one day and one night telephone number ... Wrecker operators shall be on call twenty-four hours a day, seven days a week. Out-of-zone wrecker requests are permitted in the event of an emergency or the absence of a wrecker of proper classification within the accident or removal zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Sections 321.051 and 321.05(1), Florida Statutes. Duly promulgated and also unchallenged Rule 15B-9.004, Florida Administrative Code provides in pertinent part: (1) The wrecker operator shall respond to all requests for service made through the Florida Highway Patrol duty officer within a reasonable time under the existing conditions and circumstances. If response cannot be made within a reasonable time, the wrecker operator shall notify the Florida Highway Patrol duty officer representative of the estimated time of delay and reasons therefore and the duty officer, if he determines that the delay is unreasonable, may cancel the request for service and use the services of another participating wrecker operator. * * * (4) When a vehicle is released at the scene by the investigating trooper or representative of the division, the wrecker operator shall tow to any location the owner requests within the limits of the zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Section 321.051 and 321.05(1), Florida Statutes. The non-rule policy complained of has been reduced to writing by the Florida Highway Patrol (FHP) in the Administrative Complaints against these Petitioners, and interprets the term "place of business" as provided by challenged Rule 15B-9.003(2), Florida Administrative Code to mean: A business establishment which meets the following criteria: There must be a sign on the building that identifies it to the general public as a wrecker establishment; There must be office space; They must have personnel on duty at least from 9:00 a.m. to 4:00 p.m., Monday- Friday. There must be a phone at the place of business; Tow trucks must be stationed at the place of business; The tow trucks must have the zone address and phone numbers on them. Petitioners are both engaged in the business of removing wrecked, disabled, stolen or abandoned motor vehicles on Florida highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are eligible for, and participate in, the system established by the DHSMV for utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from accident scenes or the removal of abandoned vehicles when the owner or operator is incapacitated, unavailable, or leaves the procurement of wrecker service to the officer at the scene (hereafter referred to as "FHP wrecker rotation system"). Petitioners are each charged in an Administrative Complaint indicating that the Respondent intends to remove Petitioners from the FHP wrecker rotation system for alleged failure, among other offenses, to comply with the "place of business" requirement of Rule 15B-9.003(2), Florida Administrative Code, and the unpromulgated "policy" interpreting the term, "place of business" as used in that rule. Petitioners received such notice by hand delivery of the respective Administrative Complaints dated July 22, 1987, bearing case numbers 87-02-FHP and 87-04-FHP now, DOAH Case Nos. 87-3962 and 87-4011, respectively. Those Administrative Complaints are the subject of the Section 120.57(1), Florida Statutes hearing consolidated with this rule challenge. The FHP wrecker rotation system includes designated zones and qualified wrecker operators within those zones. When a wrecker is needed to respond to an accident or to a motorist, FHP calls the wrecker at the top of the list and then rotates this wrecker down to the bottom of the list. By rotating each wrecker on the rotation list following dispatch by FHP, each participating wrecker service is afforded an equal opportunity to service a call. See unchallenged Rule 15B-9.003(3), Florida Administrative Code. Presently, FHP maintains more than two hundred zones statewide. The purpose of the zone system is to provide adequate service levels to the motoring public. The wrecker's response time to a accident scene or to a motorist in need is a primary consideration of FHP. Actual designation of a zone's boundaries is left up to each respective local FHP troop commander, subject to Division Review. See unchallenged Rule 15B-9.003(1), Florida Administrative Code. Designations are within county borders and do not overlap county borders. FHP has designated the size of a zone according to the types of roadways, the number of businesses, and also the weather conditions to anticipate response times within the zones. In Palm Beach County, FHP designated six zones; twenty-two wrecker businesses have qualified to participate as rotation wreckers. These wrecker companies vary according to their size and operation; qualified wrecker operators include companies with as few as one or two wreckers to as many as thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among those currently operating in Palm Beach County in one or more zones of the FHP wrecker rotation system. Petitioner Murphy's Towing has participated in the wrecker FHP rotation system for eight years. Murphy's Towing maintains approximately thirty trucks and operates in four zones in Palm Beach County. It maintains storage areas in each zone. As a result of its fleet of wreckers, Murphy's is able to use a roving patrol operation. When a call is received by Murphy's Towing from FHP, a central dispatcher operating 24 hours per day assigns a Murphy's truck which is patrolling in an assigned zone to respond to the call. In individual instances, this system may actually cut or increase response time within zones from what it might be if a truck were dispatched each time from a stationary place of business within the zone. Presently, wrecker services in Palm Beach County will dispatch the closest vehicle, regardless of the address of the wrecker truck or the location of the wrecker, even across zone lines. Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc. also uses a central dispatch operation similar to that employed by Murphy's Towing. Until FHP promulgated rules which took effect January 22, 1986, including the challenged Rule 15B-9.003(2), Florida Administrative Code, the general operation of the wrecker rotation system was governed by written guidelines and policies established by the local troop commanders, but these written guidelines apparently never embraced the term "place of business" nor defined it. (TR-67-69,102). However, by unwritten policy, troop commanders were responsible for enforcing the location of a wrecker company's actual place of business and storage lot within the zone in which he operated. For thirty-two years, Lt. Col. Carmody, now Deputy Director of FHP, understood the unwritten policy to be that a place of business was required for each zone in which an operator operated, i.e., was listed for rotation. Palm Beach County FHP had represented orally to Mr. Kauff for at least nineteen years that he must have a place of business in each zone in which he operated and that "place of business" meant the facility where the wreckers were dispatched, personnel were assigned, phone calls were received, and vehicles were stored after towing. Murphy's and Lyons' principals deny ever receiving such oral information from FHP prior to the current litigation. As Deputy Director of the Florida Highway Patrol, Lt. Col. John W. Carmody is responsible for all field operations and for determining the policy for the patrol. In addition, Lt. Col. Carmody supervises the troops and reviews reports with regard to the wrecker rotation system that come to his attention. In 1982, Lt. Col. Carmody was assigned responsibility by the Director of the Florida Highway Patrol to promulgate rules for administering the FHP wrecker rotation system. Among other rules, he was responsible for drafting Rule 15B- 9.003(2). In so doing, he participated in public hearings, researched other Florida rules currently in force and criteria from other states. At formal hearing, Lt. Col. Carmody demonstrated no analogies or similarities between the challenged rule or the acknowledged non-rule policy and any other agency's or jurisdiction's rules or statutes, but neither did Petitioners, who bear the burden of proof, demonstrate any dissimilarity. The relationship of the challenged rule and policy to other FHP rules also promulgated January 22, 1986, is noted throughout this Order. The unwritten place of business policy was carried forward into the administrative rules promulgated January 22, 1986. The purpose of Rule 15B- 9.003(2) was to assure timely response by wrecker operators to telephone calls from FHP in the interest of the safety and convenience of the public. As the author of the rule, Lt. Col. Carmody was primarily concerned with providing for a reasonable response time to the scene of an accident, reducing traffic disruption at the accident scene, and allowing owners to recover their vehicles or personal property within the zone without undue delay. In addition, it was felt that requiring the business to be located within the zone it served would facilitate the inspection of wreckers by FHP. In promulgating the rule, Lt. Col. Carmody retained the place of business requirement due to the agency's favorable experience with its use in implementing the zone system over thirty- two years. At the time of the promulgation of Rule 15-9.003(2), Florida Administrative Code, in January, 1986, "place of business," as the term is used in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15- 9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of business" was already defined by common sense and thirty-two years of common FHP interpretation so as to already include a sign, office space, personnel on location in the zone, wreckers on location in the zone, and zone addresses and phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was necessary to promulgate an additional rule defining "place of business." Instead, Lt. Col. Carmody gave his "common sense" definition over the phone when occasional inquiries were made. In February of 1986, Lt. Ernest Wessels, newly promoted to the post of District Lieutenant of FHP Troop L, Palm Beach County, and newly in charge of Troop L's wrecker rotation system, became aware that several wrecker services on the local list had failed to letter their vehicles with zone address and phone number and that some were operating in multiple zones. In March, 1986, he met with those he thought were all the wreckers and advised them of the requirement that signs be posted on their trucks; however it is not clear that Murphy's or Lyons had any representative at that meeting or whether the sign requirement discussed had to do with the wrecker rotation system or had to do with the Section 715.07(2)(a)7, Florida Statutes, sign requirement for trucks towing from private property (TR-173). Through the chain of command, Wessels requested by a May 16, 1986 memorandum, a definition of "place of business" and instructions on how to deal with specific presumed offenders against the new "place of business" rule, 15B-9.003(2). One presumed offender indicated in that correspondence is Murphy's. Contrary to Lt. Col. Carmody's assumption in 1986 and his testimony at formal hearing, this correspondence does not indicate that any firm agency policy was known throughout FHP at that time as to how the term "place of business", as used in the new rule, was to be defined or interpreted. Otherwise, Lt. Wessels would not have had to ask for clarification. Carmody never saw Wessels' correspondence but sent oral instructions on how to deal with one business about which Wessels had inquired. That business was not owned by either Lyons or Murphy's. At that time, no specific overall criteria were set forth by Lt. Col. Carmody either orally or in writing with regard to defining "place of business" as used in the rule. By letter dated January 19, 1987, Howard Kauff, Chairman of the Board of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm Beach County requested of FHP the definition of "place of business." His letter set out six criteria stating what he understood to be the definition of "place of business." Lt. Col. Carmody responded to Howard Kauff by memorandum dated February 5, 1987. Carmody sent a copy of that memorandum to Inspector William A. Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers, Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and correcting alleged violations, but he intended for the six criteria identified in his memorandum to have statewide effect. The six non-rule policy criteria incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in his memorandum to Howard Kauff, and circulated to all of Troop L, are set out in Finding of Fact 4 supra. The non-rule policy in Carmody's memorandum, which for the first time interprets, in writing, the term, "place of business" as used in the rule, virtually adopts the criteria suggested in Mr. Kauff's letter, with only two exceptions. Some of Kauff's suggestions were similar also to Lt. Wessels' earlier suggestions, specifically, name and address on a building, a building manned during normal business hours, and not including lease storage. Lt. Col. Carmody did not disseminate a similar memorandum to all troop commanders throughout the State of Florida until January 8, 1988. He did circulate such a memorandum on that date, but only after his deposition had been taken in the instant case and its companion Administrative Complaint cases. At the time Lt. Col. Carmody corresponded with Howard Kauff on February 5, 1987, Palm Beach County was the only area, to his knowledge, which had experienced problems with the "place of business" interpretation because of the use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar problems in any other area of the state at that time. Testimony of Carmody and Wessels at formal hearing confirmed this to also currently be the case. Specifically, there is affirmative evidence that FHP has experienced no similar use of wreckers in multiple zones in the Fort Myers area and no requests for interpretation of the rule from that area of the state or any other. Carmody's January 8, 1988 memorandum was intended to insure uniform application of the six "place of business" criteria which Carmody had previously assumed where generally known and applied throughout FHP. The January 8, 1988 statewide memorandum contained some further refinements and embellishments of the language contained in the earlier memorandum to Kauff and Troop L in Palm Beach County, but the only substantive changes were that for the fifth criterion, the wrecker operator was required to "maintain at least one tow truck at the place of business" and for the sixth criterion, the zone address and phone numbers must be "clearly visible to the public." The 1988 memorandum also contained the further directive that: I recommend that you correspond with each wrecker operator to give the wrecker service notice that the above criteria must be met for the wrecker to comply with the requirements of Rule 15B-9.003(2). Subsequent inspections by FHP personnel of wrecker service shall require compliance with these criteria. Violations shall be noted and the wrecker service given an opportunity to correct any deficiency. If the wrecker operator fails to correct any violation after notice by FHP personnel, Order to Show Cause should be issued to the wrecker service advising that noncompliance will result in the removal of the wrecker service from the rotation list. Following the issuance of the Order to Show Cause, the Office of General Counsel should be advised to take action to remove the wrecker service from the rotation list if the wrecker service has failed to comply with the place of business criteria. [Emphasis supplied, Exhibit P-4.] The non-rule policy appears then to have evolved at least by that point in time to clearly include written warnings prior to enforcing the criteria at a subsequent inspection. The parties have, however, stipulated that as to the six enumerated criteria, the language employed in February 1987, not January 1988, is the non-rule policy FHP is enforcing and intends to enforce. Other evidence suggests that it was always the Patrol's practice that warnings precede an Order to Show Cause. No studies or any other form of field research was conducted as to the necessity or propriety of the non-rule policy. Prior to Lt. Col. Carmody's response to Mr. Kauff's letter, no written document existed requiring the six "place of business" criteria of the non-rule policy. The non-rule policy is admittedly not related to reputability, mechanical standards, or safety qualifications set by the FHP for the size of the vehicle the wrecker is intended to handle. However, the agency's primary purpose behind the place of business non-rule policy, as is its purpose for the published "place of business" rule itself, is to insure prompt response time, which Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety. Specifically, the concerns of FHP are that without a sign on the place of business, the wrecker operator is difficult to locate. Lt. Wessels' personal experience in being unable to locate certain operators during his subsequent investigation in preparation for the Administrative Complaint proceedings demonstrates this concern is valid. (See Finding of Fact 26) A sign assists the public in locating the wrecker service for retrieval of towed vehicles or personal property. It assists in accident investigation and reconstruction by providing quick access to the towed vehicle by insurance investigators/appraisers and by FHP. The office space requirement, the requirement of a telephone on the premises, and the requirement of the presence of office personnel during reasonably specified business hours encourages wrecker services to serve the public by receiving phone calls, permitting payment of towing bills or securing the release of vehicles or personal property, and assists in dispatching wreckers in timely response to FHP rotation calls made by telephone. It was established that in Palm Beach County, at least, FHP rotation calls are, in fact, made by telephone. It is noted that these foregoing criteria relating to telephone contact are also consistent with unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00 p.m. are considerably less for office personnel than the 24 hours per day "on call" status specified in Subparagraph (9). These foregoing requirements help to insure a reasonable response time, as does the requirement that the wrecker be stationed at the place of business within the zone. The requirement that the wrecker be stationed at the place of business within the zone also facilitates timely inspections of each vehicle by the FHP. Painting the name, address, and telephone number on each truck fosters accountability of the wrecker operators, insures the reasonable response time due to their presence within the zone, and it may be inferred from all other evidence that it discourages vehicle equipment from being moved from truck to truck. It is further noted that the truck sign requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes, regulating the towing of vehicles from private property. From FHP's perspective, a reasonable response time is a public safety qualification, although it is admittedly not a qualification geared to the size of the vehicles to be towed. Petitioners assert that Rule 15B-9.004(1), providing that an operator will lose a call if a reasonable response time is not evident, is sufficient to ensure reasonable response by wrecker operators and renders both the challenged rule and non-rule policy redundant and unnecessary because Rule 15B-9.007(1) provides for removal from the wrecker rotation list for failure to comply with any other rule. FHP maintains that although FHP is encountering only sporadic problems in Palm Beach County with wrecker response time under the current operation of Rule 15B-9.003(2), without a place of business requirement, wreckers would be encouraged to race from one zone to another to avoid violating Rule 15B-9.004, and the public would thereby be endangered by traffic hazards created by wreckers hurriedly responding to a call. Wrecker services are reluctant to turn down a rotation call. Murphy's, for instance, charges up to twice as much for an FHP list tow as for other tows. If a wrecker does not respond to a call from FHP, substantial revenues may be lost. Lt. Col. Carmody and Lt. Wessels opined that absence of an enforceable "place of business" rule would largely obliterate the statutory areas/zones concept altogether. See Section 321.051, Florida Statutes, supra. Eliminating the place of business requirement would cause significant operational problems for FHP. Timely response by wreckers could not be effectively enforced on the authority of Rule 15B-9.004 alone. If a wrecker were sent from one zone into another and the wrecker were delayed, an excuse given to the Patrol, such as weather or traffic congestion could never be verified. Eliminating the place of business requirement would allow wreckers to cross zones so that timely response would have to be judged on a case by case basis. In view of the difficulty of judging the reasonableness of each response by a wrecker and problems incurred in locating the business for the purpose of inspecting the wreckers or releasing the vehicle or personal property to the motorist, eliminating the place of business requirement would create what Lt. Col. Carmody described as "an administrative nightmare for FHP." It is found that this is a fair assessment of the situation, despite Lt. Wessels' testimony that he knew of no specific facts showing that the public has yet been adversely affected in response time or retrieval of vehicles by the method in which Murphy's and Lyons' operate their businesses. Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker operators, among them, Murphy's and Lyons, whom Kauff had identified as allegedly failing to comply with the six "place of business" criteria specified by Lt. Col. Carmody. Lt. Wessels subsequently conducted an investigation to determine if any of the wrecker services identified by Howard Kauff were in fact in violation of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of February 5, 1987. For varied reasons, including being unable to locate some satellite business addresses, Lt. Wessels concluded that eight companies did not comply with the criteria and recommended their removal from the appropriate rotation list. Petitioners Murphy's Towing and Lyons Auto Body, Inc. were included in the eight wrecker services identified by Lt. Wessels. Following Lt. Wessels' investigation, FHP issued to the eight wrecker companies Orders to Show Cause why they should not be removed from the appropriate rotation list. Three of the wrecker services complied with the "place of business" requirement. Wessels recommended that the remaining five, which included both Petitioners Murphy's and Lyons be removed. Pursuant to Wessels' recommendations, the Department issued Administrative Complaints against the five wrecker operators. Three wrecker operators were removed from the respective lists--two voluntarily and one by Order of the DHSMV. Murphy's has participated in the wrecker rotation system for eight years without any complaint, citation, or criticism for untimely response. Its main place of business and wreckers have been inspected each of the years immediately prior to service of the Order to Show Cause without any FHP comment on its failure to comply with the "place of business" rule or non-rule policy, despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as May 16, 1986. The July 22, 1987, Administrative Complaints against the Petitioners enunciate only the non-rule policy as it had evolved up to February 5, 1987 and as set out in Finding of Fact 4 supra., not as it had evolved as of the January 8, 1988 statewide memorandum described in Finding of Fact 20 supra. Lyons has participated in the wrecker rotation system for twenty years without any FHP concerns over untimely response. Its history of successful yearly inspections and no FHP comment concerning the "place of business" rule and non- rule policy has been identical to Murphy's for the last three years immediately preceding the Order to Show Cause. Murphy's and Lyons are two of Kauff's largest competitors. Of the ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff and one other met the criteria suggested by Kauff's letter and enforced by non-rule policy prior to the Orders to Show Cause. See Finding of Fact 27. In January, 1988, FHP learned that Kauff's Towing did not maintain office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m. to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the noncompliance. This notice was followed by written confirmation on January 20, 1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff directed his terminal manager to provide personnel at the location during the required time period. Kauff was advised that noncompliance with the criteria would result in removal of Kauff's from the rotation list in Zone 4, Palm Beach County. At formal hearing, Lt. Col. Carmody stated that his memoranda did not address whether outside or inside storage must be available in a zone. In his opinion, FHP could not regulate that aspect due to prior Attorney General Opinion 85-60. (See the Conclusions of Law supra.) He opined that a wrecker operator using a central dispatch may be sufficient although the criteria he seeks to enforce requires a phone at each place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure how response time would be adversely affected if a truck were maintained in the assigned zone but there was not a building located in the assigned zone or if a tow truck were not physically located at the building location designated as a place of business in the zone but was either patrolling in the zone or parked elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or rental of a building by an operator had significance with regard to the "place of business" rule or the six non-rule policy criteria. Lt. Wessels would accept, within the six criteria, an operator's use of a storage lot maintained by the lot's owner who was not an employee of the wrecker operator. However, it was not demonstrated that Lt. Wessels is in a policy making position for the agency, and his testimony as to the foregoing matters at best demonstrates some further confusion as to how the six interpretative non-rule policy criteria are to be applied on a case by case basis. It does not demonstrate that those six criteria have been applied to Petitioners in any unequal fashion, merely that application of the six criteria is best made on a case by case basis. In the course of discovery, Respondent agency denied the following Request for Admission, "2. Admit that the interpretation of the place of business requirement has not been equally applied to all wrecker operators in the State of Florida." The evidence as a whole does not demonstrate such unequal application of the promulgated rule or the non-rule policy to Petitioners in this cause, so as to invalidate either the rule or the non-rule policy upon that ground. Apparently, as of the date of formal hearing, both rule and non-rule policy are being applied evenhandedly in Palm Beach County where violations have been documented. The testimony of Lt. Col. Carmody and Lt. Wessels demonstrates that no reports of violation have been made from other counties. Petitioners did nothing to refute this testimony nor did they provide any evidence of multiple zone operators in other counties or zones outside of Palm Beach County who were systematically permitted to evade the rule and/or non-rule policy.
Findings Of Fact The Petitioner is an agency of the State of Florida, which, through its Division of Florida Highway Patrol, maintains a "zone rotation wrecker system" for the State of Florida. The "rotation list" is used to determine which wrecker service is called to remove wrecked, abandoned or stolen vehicles from public thoroughfares in connection with investigations or operations of the Florida Highway Patrol. The rotation list is made up of names of wrecker operators who have been placed on that list following an investigation into their background and inspection of equipment they employ in order to insure compliance with the Petitioner's rules, particularly related to the safe operation of the wrecker service equipment and the safe and appropriate handling of towed and stored vehicles. When a wrecker is called to respond to an accident or to the need for a motorist to have a vehicle towed, the Florida Highway Patrol calls the wrecker service at the top of the list to obtain wrecker services. This wrecker service is then rotated to the bottom of the rotation list in the context of which wrecker service will be called for succeeding wrecker service needs. The admission and retention of reputable wrecker service operators on the rotation list who can be trusted to care for the public's vehicles in an appropriate manner, both as to towing and storage, are primary concerns of the Petitioner. Respondent, Jarkow's Wrecker Service ("Jarkow") participates in the Florida Highway Patrol rotation wrecker system in Bay County, Florida. The Respondent's business establishment is located at 5715 Titus Road, Panama City, Florida. Stuart Jarkow and his wife live on the premises of the business. The Respondent had been on the Florida Highway Patrol rotation wrecker service list for approximately three years as of the time of hearing. On January 9, 1989, Trooper Vernon D. Welch, Florida Highway Patrol, investigated an accident on State Road 2301 in Bay County. The accident involved a 1986 Toyota pickup truck owned by Jerry Davis, who was driving it at the time. The accident occurred at approximately 2:15 a.m.., when Mr. Davis swerved to avoid a dog. The truck rolled over and came to rest on its top. Mr. Davis was uninjured, but the vehicle was not in a condition to be driven under its own power and required towing. Pursuant to a call by Trooper Welch from the rotation list, the Respondent and his wrecker responded to the scene of the accident. He towed the Davis truck to his storage lot in Bay County at his place of business where it remained until January 16, 1989. During the time it rested at Mr. Jarkow's storage lot and place of business, Mr. Davis, the owner, did not go to inspect the truck because he believed that Mr. Jarkow would charge him a $25.00 fee for such inspection. Mr. Davis had purchased the truck in 1988 and replaced two of the tires at the time of purchase. Later, on August 5, 1988, he bought two other tires. At the time of the accident, the truck was equipped with four 14-inch steel- belted radials and a Sears Diehard battery, which Mr. Davis had purchased three months after buying the truck. At the time of the accident, the tires and rims were all in very good condition. Mr. Davis also kept a spare 14-inch wheel in the bed of the truck. After the vehicle rolled over during the accident, the wheel was retrieved and returned to the vehicle and was in the vehicle when Mr. Jarkow towed it to his place of business. All four tires were inflated when the vehicle was towed to Jarkow's lot. Garry's Auto Salvage ("Garry's") is a firm which deals primarily in late-model vehicles for salvage. Pursuant to contracts with insurance companies, Garry's transports and stores damaged vehicles at its place of business, pending appraisal of the value of the vehicle or the damage cost by the insurance company responsible for the risk of an accident. At such time as insurance companies make financial settlements with the owners of the vehicles, Garry's typically purchases the damaged vehicle in order to sell the parts which can be salvaged. Pursuant to a contract with Superior Insurance Company, Carry's acquired Mr. Davis' truck on January 16, 1989. The vehicle was to remain at Garry's until the insurance company made final settlement with the owner. Greg Johnson, a car hauler for Garry's, was asked to pick up the 1986 Toyota truck from Jarkow's place of business. Upon arrival at Jarkow's, Mr. Johnson presented a "pickup order" to Stuart Jarkow, the Respondent. Mr. Jarkow did not immediately release the vehicle; but after approximately 30 minutes, during which undisclosed negotiations apparently occurred, Mr. Jarkow agreed to release it to Mr. Johnson. Mr. Johnson completed an inventory report describing the condition of the vehicle. He described the rims as "good" because they were not bent or otherwise damaged. Due to the poor condition of the tire tread which he observed on the tires, he described them as being in poor condition. Mr. Jarkow refused to sign the inventory report initially but later signed it after writing "no" in spaces reserved for "spare (tire) spoilers, and shades." He also wrote "tire only in bed" on the inventory form. Mr. Johnson paid Jarkow for the towing and storage charges, put the Toyota truck onto his transporter truck and went straight to Garry's. He unloaded the truck at Garry's in an area in the storage lot designated for cars on which insurance settlements had not yet been completed. Mr. Johnson did not remove anything from the vehicle after he had picked it up from Jarkow. The Toyota was in the same condition when it arrived at Garry's as it was when Mr. Johnson picked it up from Jarkow. Russ Breeland, Manager of Garry's, met Mr. Johnson when the Toyota was brought in to that place of business. Mr. Breeland looked at the vehicle to make sure that nothing was missing. He immediately noticed that the tires and wheels were not original. He observed only one Toyota wheel on the vehicle. The right-side tires were deflated, and the tires had very poor tread condition. The battery did not match as being original to the vehicle. In particular, due `to the battery's weathered condition, it appeared to have been sitting out in the weather for a substantial period of time and later installed in the wrecked truck. The original battery posts were in a weathered state indicating that they had not been recently connected to any battery terminals. A short time after the vehicle was brought to Garry's, the owner, Jerry Davis, arrived there to inspect the truck. He met with Donald Lizotte, an employee of Garry's. Mr. Lizotte and Mr. Davis inspected the vehicle, and Mr. Davis became upset when he discovered that the wheels and the battery appeared to have been replaced with unrelated, inferior parts. Mr. Lizotte wrote down the serial numbers and makes of the tires on the back of the inventory report, a description of the rims, and the make of the battery. The tires on the truck were a mix of recapped radial tires and bias-ply tires. Such a mix of radial and non-radial tires is very atypical and not normally done because a match of such tires on a vehicle can cause the vehicle to sway and to track with the ruts of a road, creating erratic steering and a road hazard. The Sears Diehard battery, which had been purchased by Mr. Davis and installed in his truck before the accident, was not in the truck. The battery found in the truck was a Delco battery. The 14-inch wheel, which had been kept in the bed of the truck by Mr. Davis, was missing. Rather, a 15-inch spare tire was found in the truck, without a wheel. Upon leaving Garry's, Mr. Davis called the Florida Highway Patrol on January 16, 1989. He made a verbal complaint to Lt. Charles Helms against the Respondent. Mr. Davis had seen photographs of the truck taken by Mr. Lizotte when the truck arrived at Garry's and concluded that Jarkow had swapped the parts or that someone, while it was in Jarkow's custody, had swapped the parts on the vehicle. Lt. Helms informed Mr. Davis that he should file a written complaint with the Florida Highway Patrol. On January 26, 1989, Lt. Helms, accompanied by Trooper Welch, went to Garry's to look at the truck. He obtained Mr. Lizotte's photographs and took additional photographs of the vehicle. Trooper Welch observed from the appearance of the lug nuts and the rims that the wheel rims had recently been changed. Mr. Davis delayed filing a written complaint with the Florida Highway Patrol until April 4, 1989. Lt. Helms initiated a criminal investigation to determine if the truck parts had been stolen and submitted the results to the State Attorney's office on July 18, 1989. Lt. Helms later learned that no criminal charges would be filed by the State Attorney's office. He pursued an administrative investigation against the Respondent, in any event. During his investigation, Lt. Helms was advised by Mr. Breeland of a prior incident involving the removal of wheels and tires from a vehicle which had been towed by and stored at Jarkow. Lt. Helms investigated that incident which involved the replacement of wheels and tires from a 1986 Mustang owned by Leo Shealy. That incident occurred in July of 1988. The Mustang was owned by Mr. Shealy but driven by his son. The vehicle was involved in an accident on July 20, 1988 in Panama City. The accident was investigated by Officer Mitchell Pitts of the Panama City Police Department. The Mustang was equipped with expensive aluminum wheels and radial tires at the time of the accident. Mr. Shealy's son had spent approximately $1,000.00 on the new wheels and tires one week prior to the accident. The Respondent was called to tow the Mustang to his place of business. Prior to removal of the vehicle from the accident scene, Officer Pitts observed that the wheels and tires were in good condition and that the rims were a "mag type" wheel and, in other words, were the wheels purchased by Mr. Shealy's son and installed on the vehicle prior to the accident. Mr. Shealy's son was driving the mustang when the accident occurred and was taken to the hospital. Following his release from the hospital, Mr. Shealy and his son went to Jarkow to check on the condition of the vehicle and retrieve some of their personal effects from the interior of the vehicle. On that visit, the tires and rims were unchanged. Mr. Shealy inquired about the stereo equipment in the vehicle, and Mr. Jarkow told him that the vehicle would be kept locked up where no one could tamper with it. He assured Mr. Shealy that there would be no problem about anything being removed from the vehicle. Mr. Shealy received a call from an insurance adjuster, Ronald LaMaster, several days later. Mr. LaMaster requested that he sign a release form at Jarkow so that the Mustang could be picked up by Garry's and taken to Garry's for adjustment and settlement. Mr. Shealy met with Mrs. Jarkow at 8:00 a.m. on that Saturday morning and signed a release form. While he was at Jarkow, Mr. Shealy told Mrs. Jarkow that he hoped that the vehicle could be "totaled", that is, that the full appraisal value would be paid for the vehicle, instead of repairing the damage, because he did not want to endure a lengthy period of time while repairs were being effected. Mrs. Jarkow replied that if Mr. Shealy desired it, the vehicle could be totaled, that is, that Jarkow could take steps to insure that the vehicle in its damaged condition would not have sufficient value over the cost of the necessary repairs, so that the insurance company would declare it a total loss and pay the appraised value for the vehicle to Mr. Shealy. Mr. Shealy assumed, from her comments, that Mrs. Jarkow was assuring him that the Respondent could render the appearance of the Mustang such that it would be appraised as not worthy of repair. Following his conversation with Mrs. Jarkow, Mr. Shealy did not feel secure about the arrangements made about his vehicle. He drove back to Jarkow at 11:00 a.m. that same morning. He did not immediately recognize the Mustang at the storage lot at Jarkow, although it was sitting in the same place as he last saw it. The wheels and tires had already been replaced since he had spoken with Mrs. Jarkow that morning with inferior black-painted wheels and old rotten tires. Mr. Shealy then called Mr. LaMaster and told him to advise Garry's not to pick up the Mustang as arranged. Mr. Shealy later called Jarkow. A dispatch service answered the telephone, and Mr. and Mrs. Jarkow did not respond to the telephone call. Mr. Shealy told that dispatch service to have Mr. Jarkow return his call. When his call was not returned, Mr. Shealy called again some time later that same day and spoke with the dispatch service once again. Mr. Shealy was told then that Mr. Jarkow intended to call him but that he must have been busy. Mr. Shealy then told the dispatch service to relay a message to Mr. Jarkow to the effect that he could either put the original equipment back on the Mustang or answer for failure to do so to the Bay County Sheriff's Department. Mr. Shealy told the dispatch service that he would return at 2:00 p.m. to inspect the vehicle. Mr. Shealy returned to Jarkow at 2:00 p.m. that same day. He knocked on the door and no one responded. He observed the vehicle, however, and saw that his son's wheels and tires had been installed on the vehicle once again. He took photographs of it and then called Mr. LaMaster requesting that the Mustang be taken from Jarkow as soon as possible. Mr. Shealy never made a report to the sheriff's department, however. He merely stated that he, in effect, did not wish to encounter any further problems in dealing with-the vehicle and the accident. Based upon these incidents with the Toyota truck and the Mustang, Lt. Helms concluded, in his opinion, that the Respondent had engaged in a pattern of conduct demonstrating a lack of reputability as a wrecker service. Lt. Helms presented his findings to Major Jimmy C. Wright, the Troop Commander. Major Wright reviewed the investigation and recommended removal of the Respondent from the rotation list because equipment had been removed from the vehicles while they were in the Respondent's custody. Major Wright concluded in recommending this agency initial action that the incidents involving the two vehicles, in his opinion, demonstrated a lack of reputability within the meaning of Rule 15B-9.007(7), Florida Administrative Code. He felt that the Florida Highway Patrol could no longer rely on the Respondent to perform a caretaking function in an appropriate manner with vehicles entrusted to its custody for towing and storage. Major Wright interpreted Rule 15B-9.007(7), Florida Administrative Code, to mean that the Respondent was responsible for acts of third persons under his control or for their acts with regard to vehicles which were under his control. He concluded that the rule at issue concerned the responsibilities of the wrecker service business and did not merely relate to a singular individual who owned or operated the business regardless of what sort of business entity under which it operates. Thus, Major Wright concluded, under the above-cited rule as he construed it, that Jarkow was responsible for the acts occurring at his business location. Accordingly, based upon his 30 years' experience with the Florida Highway Patrol and working with the standard wrecker rotation system set up by the statute and rule cited herein, both as a trooper arid in a supervisory capacity, and in consideration of his interpretation of Rule 15B- 9.007(7), Florida Administrative Code, to which he testified, Major Wright recommended that the Respondent be removed from the wrecker service rotation list for a lack of reputability, pursuant to Rule 15B-9.007(7), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Jarkow's Wrecker Service, be removed as a rotation wrecker operator for Bay County, for Troop A of the Florida Highway Patrol.. DONE AND ORDERED this 31st day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 31st day of July, 1990. APPENDIX TO RECOMMENDED QRDER IN CASE NQ. 90-0072 Petitioner's Proposed Findings of Fact 1. Accepted. 2-37. Accepted. Respondent's Proposed Findings of Fat 1-9. Accepted. 10-26. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted, to the extent that it depicts what Major Wright's opinion was, rather than as a bin&[ing conclusion of law. Accepted. Accepted. Accepted, but not dispositive of aniy disputed material issues. Accepted, but not dispositive in itself of any material issues. The maintenance of appropriate insurance coverage does not obviate the requirement for demonstrated reputability. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 R.W. Evans, Esq. I. Ed Pantaleon, Esq. Department of Highway Safety and Motor Vehicles Neil Kirkman Building Suite A-432 Tallahassee, FL 32399-0500 Brian D. Hess, Esq. 9108 West Highway 98 Panama City Beach, FL 32408 =================================================================
The Issue Whether Respondent performed an act which assisted a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, or whether he applied for and obtained a permit without having entered into a contract to perform the work specified in the permit, as set forth in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Business and Professional Regulation is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to these proceedings, Mr. Jenkins was licensed as a certified general contractor in the state of Florida, having been issued license number CGC 1513481. Mr. Jenkins' license is current and active. At all times relevant to the Administrative Complaint, Mr. Jenkins was the primary qualifying agent of Abacoa Construction, LLC (Abacoa). Mr. Jenkins was responsible for supervision of all operations of Abacoa; for all field work at all sites; and for financial matters, both for Abacoa in general and for each specific job. On or about October 29, 2015, Robert Maione entered into a contract with John Martinache, d/b/a All 4 One Project, LLC, for renovations to his residence located at 364 Golfview Road, Unit 407, North Palm Beach, Florida 33408. Mr. Maione was aware that Mr. Martinache was unlicensed. On or about December 8, 2015, Mr. Jenkins, d/b/a Abacoa, obtained Building Permit No. 16063 from the Village of North Palm Beach Building Department for electric, HVAC, and plumbing. The permit was for the renovations at the Golfview Road residence. Mr. Martinache proceeded on interior renovations requiring proper licensure without having been certified or registered to engage in the practice of construction contracting in the state of Florida. Mr. Jenkins was aware that Mr. Martinache was not licensed for this work. Mr. Jenkins did not have a contract for the construction at Golfview Road, did not supervise it, and received no compensation for it. Restitution cannot be calculated based on the available facts, as the value of the work and actual damages are unclear. There is no evidence of financial loss suffered by a consumer in this case. It was clearly and convincingly shown that Mr. Jenkins assisted a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting. It was clearly and convincingly shown that Mr. Jenkins applied for and obtained a permit without having entered into a contract to perform the work specified in the permit. Mr. Jenkins has not been subject to prior discipline.
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 Mark Lewis Jenkins in violation of sections 489.129(1)(d) and 489.129(1)(i), Florida Statutes; placing his contractor's license on probation for a period of two years; imposing an administrative fine of $8,500.00; and requiring him to complete an additional live continuing education course of seven hours emphasizing chapter 489 and implementing rules and to pay costs in the amount of $171.66. DONE AND ENTERED this 14th day of September, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2017. COPIES FURNISHED: Labeed A. Choudhry, Esquire Ward Damon, Attorneys at Law 4420 Beacon Circle, Suite 100 West Palm Beach, Florida 33407-3281 (eServed) Ramsey D. Revell, Esquire Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) James David Burkhart, Esquire Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Jason Maine, General Counsel Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed)
The Issue In this disciplinary proceeding, the issues are whether Respondent, a licensed contractor, failed timely to renew the certificate of authority issued to his qualified business entity; failed to include, in a construction contract, the required notice regarding consumer rights under the recovery fund; abandoned a construction project; or committed any of these offenses, as alleged by Petitioner in its Administrative Complaint. If Petitioner proves one or more of the alleged violations, then an additional question will arise, namely whether penalties should be imposed on Respondent.
Findings Of Fact The Parties Respondent Vic George ("George") is a certified general contractor and a certified roofing contractor. As a licensee in these fields, George is subject to the regulatory jurisdiction of the Construction Industry Licensing Board ("Board"). Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction over disciplinary proceedings for the Board. At the Board's direction, the Department is authorized to prosecute administrative complaints against licensees within the Board's jurisdiction. George's Businesses At times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as South Florida Remodeling and Building Corporation ("S.F. Remodeling"). At other times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as One Stop Remodeling and Building Corporation ("One Stop"). One Stop was a successor to S. F. Remodeling. The Department issued an initial certificate of authority to One Stop that, effective August 31, 2001, permitted the company lawfully to engage in the business of contracting for two years. One Stop failed timely to renew its certificate before the expiration date of August 31, 2003. In a Final Order Approving Settlement Stipulation entered on February 18, 2004, the Board disciplined George for, among other things, the failure of One Stop timely to renew its certificate of authority.iii The Board suspended George's contracting licenses indefinitely but stayed the suspension for 90 days to allow George to furnish evidence that corrective actions had been taken, which actions were to include the renewal of One Stop's certificate. Had George failed to provide such evidence, the stay would have been lifted and his licenses immediately suspended. George's licenses were not suspended in consequence of the Final Order just described. It is thus reasonable to infer, and is hereby found, that George satisfied the all of the conditions (including the renewal of One Stop's certificate) for preventing the suspension from taking effect. That being the case, One Stop's certificate was renewed before mid-May 2004.iv In light of the foregoing findings, the Department failed to prove by clear and convincing evidence its allegation that One Stop's certificate was delinquent until October 2004. The Hazard Project Anthony Hazard ("Hazard") is an insurance agent who sells property and casualty insurance in Miami-Dade County. Some time before September 2000, a man named Rick Nelson bought insurance through Hazard's insurance agency, and he and Hazard developed a friendly relationship. Mr. Nelson was an employee and officer of S.F. Remodeling, for whom he was a construction supervisor. As Mr. Nelson and Hazard got to know one another, they realized that each could be a source of business referrals for the other. In fact, Mr. Nelson did direct some persons in need of insurance to Hazard, and Hazard recommended Mr. Nelson to some persons in need of a contractor. It was natural, therefore, that when Hazard and his wife decided in the year 2000 to add an enclosed patio to their house, Hazard turned to Mr. Nelson for assistance. Mr. Nelson told Hazard that S.F. Remodeling could do the job. In a written price quote dated September 29, 2000, and delivered to Hazard on or about that date, Mr. Nelson, on behalf of his employer, represented that S.F. Remodeling could build an enclosed patio for the Hazards at a total cost of $9,938. The Hazards agreed to this proposal, and work preliminary to construction, such as the preparation of the architectural plans, commenced forthwith. The plans were drawn by Curtis Williams, a draftsman who worked for an architect named Charles Mitchell.v In the course of obtaining the local building official's approval of the plans, it was learned that the project as originally contemplated would need to be modified to comply with the zoning laws. The necessary design changes would increase the cost of construction slightly. Thus, effective November 21, 2000, the Hazards and S.F. Remodeling entered into a one-page agreement pursuant to which the contractor promised to build the Hazards an enclosed patio for $10,100. The contract did not contain an explanation of the owners' rights under the Florida Homeowners' Construction Recovery Fund, which was known at the time as the Construction Industries Recovery Fund. (Hereafter the referenced fund will be called the "Recovery Fund.") The agreement was a sweetheart deal for the Hazards. In an arms-length transaction, the project likely would have cost between $16,000 and $18,000. S.F. Remodeling agreed to do the work for little or no profit in the hope (and with the expectation) that Hazard would continue referring potential customers to Mr. Nelson. The building permit was issued on November 30, 2000, and S.F. Remodeling promptly began work at the jobsite. From then until at least February 14, 2001, work progressed at a reasonable pace. The contractor demolished and removed the existing slab, installed a new footing, poured a new slab, and framed the tie beam. Along the way, in the ordinary course of construction, local building officials inspected and approved the foundation and the new slab. One unforeseen development, however, had caused friction between the Hazards and the contractor. Beneath the existing concrete slab had been found another slab whose removal had entailed unanticipated expenses for excavation work and fill material. Mr. Nelson had asked Hazard to cover some or all of these costs, but Hazard had refused. Because the contract price left no room for error, it had become apparent within a short time after breaking ground that S.F. Remodeling would lose money on the project. Yet another unforeseen occurrence brought the work to a halt. At a routine inspection of the project on March 16, 2001, the local building official refused to approve the tie beam. He determined that the architect's plans, which had been approved prior to issuance of the building permit, were deficient for failure to depict how the tie beam would connect to the existing structure; hence, the plans would need to be revised and approved before construction could continue. Without delay, Mr. Nelson called Mr. Williams and explained the situation to the draftsman, who agreed to revise the plans. Not long thereafter, Mr. Nelson brought the job copy of the plans to Mr. Williams. Mr. Williams did, in fact, make the necessary changes to the plans. It is not clear, however, when exactly this work was completed. All that can be found with certainty on the existing record is that Hazard picked up a copy of the revised plans from Mr. Williams in December 2002, nearly two years after work on the project had stopped as of March 16, 2001. The Department urges the undersigned to infer that the reason for the delay was the contractor's failure——in breach of the contract——to pay the draftsman for revising the plans. The undersigned declines to draw this inference, however, because the evidence on the point is conflicting and ambiguous; the undersigned, ultimately, is just not convinced that this was the reason.vi At bottom, the cause or causes of the delay were not proved clearly and convincingly. (The person most likely to have personal knowledge regarding what happened——Mr. Williams—— was not called to testify, nor was anyone else from the architect's office, leaving a gaping hole in the record.) The undersigned therefore cannot make any inculpatory findings pinning the blame for the delay on S.F. Remodeling or its agents. In aid of its proof of the serious allegation that S.F. Remodeling or its successor One Stopvii abandoned the Hazard project, the Department relies upon a statutory provision under which the fact-finder is permitted to presume abandonment if it is shown that the contractor failed to perform work without just cause for 90 consecutive days. The Department's reliance on this statutory presumption is misplaced, however, because the Department did not prove, by the required quantum of evidence, that S.F. Remodeling failed to work without just cause for 90 days, a basic fact upon which the presumption must rest. The fact is, on March 16, 2001, S.F. Remodeling had just cause to cease working, for the simple reason that, as of that date, the contractor could not legally work on the project until such time as the architect had amended the plans and obtained approval thereof from the local building official. The Department's theory is that it took too long to attend to this situation, which might be true, and that S.F. Remodeling was at fault for the delay, which is possible, too; yet neither proposition was proved clearly and convincingly.viii To explain, there is no convincing evidence in the record as to the reasonable period of time for the preparation and approval of amended plans in the ordinary course of business, nor is there any proof regarding the steps that a reasonable contractor should take under such circumstances to expedite the process.ix In other words, there is no convincing evidence of applicable standards of conduct against which to measure this contractor's performance. In the absence of such evidence, the undersigned cannot, consistent with the rule of law, simply apply standards of his own devising, based on his personal preferences concerning how contractors should perform, no matter how sensible or wise those personal standards might be. In the absence of legal standards, the undersigned must withhold judgment, rather than render a personal one. It is therefore impossible, based on the evidence in the record, for the undersigned to fix the point in time, if there were one, when just cause no longer existed for S.F. Remodeling not to be working on the Hazard project. Without that reference point, it cannot be determined whether the contractor failed to perform work without just cause for 90 consecutive days. Thus, the undersigned cannot presume abandonment. Moreover, even if the Department had proved that S.F. Remodeling breached a legal or contractual duty to cause the revised plans to be prepared and approved sooner than these events actually occurred, the question at hand is not whether the contractor breached the contract or was negligent; the question is whether the contractor abandoned the project——i.e. quit the job with the intention never to resume working toward its completion. Simply put, the contractor's failure to prevent unreasonable delay in the work, if there were such a failure, would not, without more than was proved here, manifest the requisite intention never to complete the project. On November 4, 2002, Hazard signed a consumer complaint against S.F. Remodeling, which he then filed with the Miami-Dade County Building Code Compliance Office. In his complaint, Hazard accused the contractor of failing to complete the job and refusing to contact him about it. After investigating the matter, local officials referred Hazard's complaint to the Department, giving rise to the instant proceeding. Some time after bringing his consumer complaint, Hazard hired another contractor, Edwards Construction, Inc. ("Edwards"), to complete the project.x Edwards obtained a permit for the project in April 2003 and began working several months later, taking about four months to finish the job. A final inspection approving the project was had on November 7, 2003. All told, the Hazards invested $23,216.69 in their new patio. This grand total, however, included some extras (a concrete pad for parking a boat, a sidewalk, and some steps) that S.F. Remodeling had not been under contract to build. Breaking down the total amount paid, the Hazards incurred $9,419.73 in expenses while S.F. Remodeling was on the job, and $13,796.96 when Edwards was doing the work. On September 29, 2004, the Department issued a three- count Administrative Complaint against George. As of May 19, 2005, the Department had expended a total of $596.20 in investigative and prosecutorial costs, excluding attorney's fees. The Charges In Count I of its Administrative Complaint, the Department alleged that S.F. Remodeling had failed to include in its contract with the Hazards a statement explaining the consumers' rights under the Recovery Fund, as required by Section 489.1425, Florida Statutes. It is the Department's position that George, as the company's qualifying agent, is subject to discipline for this oversight pursuant to Section 489.129(1)(i), which makes it an offense materially to disobey any statutory provision or order of the Board. In Count II, the Department charged George separately under Section 489.129(1)(i), asserting that he, as qualifying agent, had failed to obey a statutory provision, namely Section 489.119(2)(d), which requires that a corporate contractor's certificate of authority must be renewed every two years. As the basis for this charge, the Department alleged that One Stop's certificate had expired on August 31, 2003, and not been renewed until October 2004. In Count III, the Department accused George of having abandoned a construction project, which is a disciplinable offense under Section 489.129(1)(j), Florida Statutes. In support of this Count, the Department, as mentioned, has relied upon an evidentiary device that permits the fact-finder to presume abandonment upon proof that the contractor failed to perform work without just cause for 90 consecutive days. Ultimate Factual Determinations Because the contract between S.F. Remodeling and the Hazards did not, in fact, include the statutorily required notice regarding the Recovery Fund, George, in his capacity as qualifying agent, is guilty of failing to obey a statutory provision, as charged in Count I. There is no dispute that One Stop's certificate of authority lapsed as of August 31, 2003. Indeed, the Board disciplined George for the oversight, entering a final order on February 18, 2004, with which he timely complied. As a result of this previous discipline, One Stop's certificate was renewed and the matter concluded. The Board cannot lawfully punish George twice for the same offense. Thus, George is not guilty of the offense charged in Count II of the Administrative Complaint. The undersigned is not convinced that S.F. Remodeling abandoned the Hazard project. At most it might be inferred that, after the local building inspector stopped the job due to faulty architectural plans——a problem not of the contractor's making——S.F. Remodeling, being in no hurry to resume working on a money-losing project, took a laissez-faire approach to the ensuing delay. But the Department did not prove "strategic sloth" by clear and convincing evidence, and such would not constitute abandonment even if it had. The evidence leaves open the reasonable possibility that S.F. Remodeling intended and expected to finish the job someday, even if it hoped that day would not come soon.xi Consequently, George is not guilty of the charge set forth in Count III of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order (a) finding George not guilty of the offenses charged in Counts II and III of the Administrative Complaint; (b) finding George guilty of the offense charge in Count I thereof; (c) imposing a fine of $1,000 for the notice violation, which is a repeat offense; and (d) assessing investigative and prosecutorial costs in the amount of $596.20. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 26th day of August, 1997.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 9th day of September, 1999.
