Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On June 16, 1993, Petitioner took delivery of a new 1/ 1994 Mitsubishi Galant ES that he had leased (for a 42-month period) from Potamkin Mitsubishi (hereinafter referred to as "Potamkin"), a Florida Mitsubishi Motors of America (hereinafter referred to as "Mitsubishi") dealership. Thereafter, problems developed with the vehicle's braking system, which caused the steering wheel to vibrate. Petitioner, who, under his lease agreement, was responsible for having the necessary repairs made to the vehicle, reported these problems to Potamkin. Potamkin was unable to completely remedy these problems within 18 months of the date of delivery (hereinafter referred to as the "18-month post- delivery period"). During the "18-month post-delivery period," Petitioner drove the vehicle less than 24,000 miles. The problems that Petitioner reported during the "18-month post- delivery" period still persist today. On or about January 24, 1995, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer of the vehicle, Mitsubishi, requesting that it "make a final attempt to correct the continued substantial defects" plaguing the vehicle. The defects were not remedied. On June 21, 1996, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated June 26, 1996, the Department advised Petitioner that "a determination ha[d] been made in accordance with Chapter 681.109(6) Florida Statutes, and Rule 2-32.009(2)(b), Florida Administrative Code, to reject [his request because t]he request was not submitted in a timely manner."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's request for arbitration because it is time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of December, 1996. STUART M. LERNER 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 5th day of December, 1996.
Findings Of Fact On June 6, 1991 a commercial vehicle owned by the Respondent was operating over a highway in the State of Florida. That highway is Interstate 75 in Hamilton County, Florida. An inspection was made by the Petitioner and it was revealed that the registration available with the vehicle did not pertain to the vehicle. A valid registration of a temporary or permanent nature which was associated with the vehicle was not presented at that time. There being no valid registration for the vehicle a fine in the amount of $1,746.00 was assessed in that the owner was charged $.05 per pound for the amount over 35,000 pounds, subtracted from the gross weight of 69,920 pounds. In explanation at hearing Henry Jernigan who owns Southern Salvage Company, Inc. admitted that the vehicle in question had left Respondent's facility with a Georgia tag that belonged to another truck owned by Respondent. Further Mr. Jernigan admitted that when the Florida officials stopped the truck in question it had the wrong tag displayed. The tag pertaining to another vehicle had been placed on the vehicle in question by mistake. Concerning the appropriate indication of registration on the subject truck, steps necessary to purchase a tag had been started in Colquitt County, Georgia on April 26, 1991. This was followed by money paid to the Georgia Department of Revenue on May 28, 1991 for the IRP which signifies permanent registration but the permanent tag was not received immediately. That is to say confirmation of that permanent registration by officials with the Georgia Department of Revenue had not been made when the vehicle was stopped. Meaning the Respondent had not received a copy of the permanent registration when the vehicle was stopped. The permanent registration was finally received by the Respondent sometime around June 20, 1991.
Recommendation Having considered the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered assessing a fine in the amount of $1,746.00 for this violation. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1991. APPENDIX The following discussion is given concerning the proposed facts of the Petitioner: Paragraph 1 is subordinate to facts found. Paragraph 2 in its first two sentences are hearsay, not available for fact finding. The third sentence is not necessary to the resolution of the dispute. The next sentences are subordinate to facts found. The last two sentences are hearsay and not available for fact finding. Copies furnished to: Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Henry Jernigan Southern Salvage Company, Inc. Route 2, Box 210 Lenox, GA 31637 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue in this case is whether Petitioner should deny Respondent's application for a yacht salesperson's license on the ground that Respondent failed to furnish proof of his good moral character in violation of Section 326.004(6)(a), Florida Statutes (1999). (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating yacht and ship salespeople and brokers and for administering and enforcing Chapter 326. Respondent is a licensee applying for renewal of a yacht salesperson's license. Respondent applied for and the Division approved Respondent's initial yacht salesperson's license in 1995. Pursuant to Section 326.004(1), yacht salesperson's licenses are valid for a two-year period. In addition, Respondent formerly held a state contractor's license and a real estate broker's license from Petitioner's agency. The Construction Industry Licensing Board ("CILB") is a division of Petitioner. The CILB served Respondent with an administrative complaint regarding his contractor's license in March 1997. In 1998, the Florida Real Estate Commission ("FREC") revoked Petitioner's real estate license. The Division did not become aware of the administrative proceedings against Respondent's construction and real estate licenses until August 1998. By final order issued March 19, 1998, the CILB fined Respondent and suspended his state contractor's license for five years. The CILB found that Respondent violated Section 489.129(1)(h)(2), (k) and (m). Respondent committed mismanagement that caused financial harm to a customer by accepting deposit money but failing to perform on the contract; abandoned the construction project under contract by failing to begin construction for a period of five months; and engaged in deceitful conduct in the practice of contracting. The CILB also found that Respondent violated Section 489.129(1)(n) by committing incompetence and misconduct in the practice of contracting. The victims in Respondent's CILB case received $22,845.00 from the Construction Industries Recovery Fund as compensation for the harm they suffered due to Respondent's violation of Section 489.129(1)(h)(2). Respondent's obligation to pay restitution to the victims was discharged in bankruptcy. Respondent is still paying the fines and interest ordered in the CILB license suspension case involving his construction license. After the CILB suspended Respondent's contractor's license, FREC, another division of Petitioner, issued an administrative complaint seeking to revoke Respondent's real estate broker's license on the ground that the CILB had suspended Respondent's construction license. Respondent voluntarily surrendered his real estate broker's license for revocation. By final order dated August 19, 1998, FREC revoked Respondent's real estate broker's license. Respondent timely applied for, and the Division approved, the renewal of Respondent's yacht salesperson's license in August 1997. On this renewal application, Respondent answered "N" to question number four which asked whether there were any cases pending against the applicant. In August 1999, Respondent timely applied for renewal of his yacht salesperson's license. Petitioner denied the application on the sole ground that Respondent failed to show that he is of good moral character in violation of Section 326.004(6)(a). Petitioner determined that Respondent failed to show good moral character based on the CILB suspension of Respondent's contractor's license, FREC's revocation of Respondent's real estate license, and Petitioner's conclusion that Respondent had answered question four on his 1997 renewal application untruthfully in violation of Section 326.006(2)(f)1. Petitioner relied solely on a review of the documents in its file and did not conduct an independent investigation or interview Respondent. Respondent did not falsely answer "no" to question four on his 1997 renewal application. Question four asked, in relevant part: Has any judgment or decree of court been entered against you or is there now pending any case, in this or any other state, in which you were charged with any fraudulent or dishonest dealing. Question four limited its scope to judgments, decrees, and cases pending in any court in this or another state and did not ask for disclosure of administrative proceedings. Administrative agencies, including DOAH, are not courts. The administrative complaint filed against Respondent in March 1997 was not a case pending in a court in this or another state. As Petitioner noted on its Investigative Report, ". . . a final order of an agency is not a judgment or decree of court." Respondent construed question four on his 1997 renewal application to be limited to courts. Respondent's interpretation was reasonable and valid. It was not intended to deceive Petitioner. In August 1998, an attorney for FREC informed Respondent that he should disclose administrative proceedings in addition to court cases. Respondent immediately informed Petitioner by telephone and letter of the pending administrative proceedings. In the renewal application filed in 1999, Respondent disclosed the suspension of his construction license, the revocation of his real estate license, and answered "yes" to question four on the application. In an effort toward full disclosure, Respondent answered "yes" to question three when Respondent should have answered "no." Question three asked Respondent if he had been convicted of a crime. The only finding from the suspension of Respondent's construction license by the CILB and the revocation of Respondent's real estate license by FREC that is at issue in this case is a finding by ALJ Daniel M. Kilbride that Respondent committed fraud and deceit by adding a provision for a commission at the end of a construction contract entered into on December 23, 1994. By final order entered on March 16, 1998, the CILB adopted the Recommended Order of Judge Kilbride. The judicial doctrine of equitable estoppel, or estoppel by judgment, bars the re-litigation of factual and legal issues common to both the CILB case and this case. Therefore, the finding that Respondent committed fraud and deceit in 1994 cannot be litigated in this case. The good moral character of Respondent was not at issue in the license suspension case decided by Judge Kilbride. Therefore, Respondent is entitled to present evidence of his good moral character in this case including evidence that explains and mitigates the circumstances of the 1994 transaction in an effort to show that Respondent does not now lack good moral character. The sales commission at issue in the 1994 transaction was to be paid out of Respondent's proceeds from the construction contract. It was not an additional expense to be paid by the buyers. It did not increase the construction price of the house. The commission was to be paid by Respondent for services provided by Castle Real Estate on behalf of Respondent. The buyers did not object to the insertion of the commission provision at the end of the contract. The buyers did not object to the commission being paid at closing. The construction lender released the funds for the commission as part of the construction draw Respondent received. The funds were not separately identified, and Respondent had no knowledge that the lender had released the funds as part of the construction draw. Respondent was an active builder in the local real estate market. He had constructed several "spec" homes. When the real estate market declined, Respondent incurred financial problems attributable to subcontractors and was unable to service the debt he owed on the "spec" homes. Respondent declared bankruptcy in 1996. The buyers in the 1994 transaction did not make any request for refund until after Respondent had declared bankruptcy. Respondent could not make preferential payments to creditors after he declared bankruptcy. More than five years have passed since the 1994 transaction. Even if Respondent lacked good moral character in 1994, he now possesses good moral character. Respondent is now in stable financial condition. Respondent has made all payments due under the license suspension order in a timely manner. Respondent is a licensed captain in the Coast Guard Auxiliary. He has served as a commodore of the local boating club and as a former public affairs officer in charge of public education for the local flotilla. Respondent has conducted himself with integrity in all of his yacht sales. Respondent enjoys an excellent reputation in the boating community for honesty and integrity. Respondent's knowledge about yachts is above average. Over a span of 15 years, Respondent has held licenses with the state as a mortgage broker, real estate salesman, and real estate broker. During that time, no complaints have ever been filed against Respondent for his activities under those licenses. The revocation of Respondent's real estate license was based on the suspension of Respondent's construction license by the CILB. The complaint filed against Respondent's construction license involved a single isolated transaction that occurred more than five years ago for which there were significant mitigating circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent has good moral character, within the meaning of Section 326.004(6)(a), and renewing Respondent's yacht salesperson's license. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 28th day of June, 2000. COPIES FURNISHED: Ross Fleetwood, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Scott K. Edmonds Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Thomas C. Houck, Esquire 312 South Harbor City Boulevard Melbourne, Florida 32901 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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)
