The Issue The issue is whether Petitioner's request for attorney's fees and costs should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In these cases, Petitioner, Couch Construction, L.P., seeks to impose sanctions against Respondents, Darel Holland (Holland) and Diane Lowery (Lowery), on the ground that they allegedly filed petitions for an improper purpose challenging the issuance of a permit by the Department of Environmental Protection (DEP). In responsive papers filed by Respondents, both deny that the actions were initiated for an improper purpose. The facts in the underlying DEP case involving Holland (OGC Case No. 98-3015) show that on October 30, 1998, Petitioner published a copy of DEP's Notice of Intent to Issue Permit to Petitioner authorizing the construction of a hot mix asphalt concrete plant at 2780 North Highway 95-A, Cantonment, Florida, with potential emissions of up to 29 tons per year of particulate matter. After learning of the proposed action, various citizens in the Cantonment area signed a petition opposing the project. In addition, a local attorney, John T. Reading, Jr., Esquire (Reading), offered to provide them with pro bono assistance as a "community service." Among other things, Reading prepared a form petition challenging the issuance of the permit and requesting a formal hearing. That form was apparently made available to the local citizens so that they could sign and file it, if they chose to do so. Holland says that he did, and it is fair to infer that this form was the source of Lowery's petition as well. Holland lives only 9 blocks from the proposed plant and suffers from a lung disease which has left him with only 58 percent of his lung capacity. Because of his legitimate concerns about the projected amount of particulate emissions and their potential effect on his respiratory system, on November 12, 1998, he filed in proper person a Petition for Formal Administrative Hearing challenging the proposed issuance of the permit. Holland's petition alleged that he was a property owner in the area where the plant would be constructed; that "due to respiratory problems," he would be "substantially affected by the permitted 29 tons of particulate emissions"; that his property "may be substantially reduced in value and peaceful enjoyment" as a result of the permit being issued; and that the petition was not "being interposed merely for the purposes of delay, or any other improper purpose as listed in F.S. 120.57(1)(b)(5)." There was no showing that the petition was filed for an improper purpose or that Holland's concerns were not genuine. Holland's petition also requested an extension of time "to determine which rules or statutes require reversal or modification of the Department's action" and "to obtain counsel" to assist him in his action. On December 21, 1998, DEP entered an order dismissing Holland's petition on the ground that he failed to allege the information required by Rule 28-106.201(2)(e), Florida Administrative Code. It also determined that no good cause had been shown to warrant an extension of time for Holland to determine if any rules or statutes supported his position. He was, however, granted leave to file an amended petition within 15 days from the date of service of DEP's dismissal order (December 23, 1998). This meant that an amended petition had to be filed with DEP no later than January 7, 1999. After learning that his petition had been dismissed, Holland had a brief conversation with Reading about the dismissal and was left with a somewhat vague understanding that Reading "would get an extension" from DEP. Thereafter, on January 12, 1999, or 5 days after the due date, Reading filed with DEP an Amended Petition of Darel Holland for Administrative Hearing. The petition was signed by Reading, and it represented that a copy of the petition had been served on Petitioner's counsel on January 5, 1999. On January 14, 1999, Reading also filed with DEP on behalf of Holland a paper styled Plaintiff's Motion to Enlarge Time in which Reading claimed that "due to circumstances not known," the amended petition had not been timely filed. Reading accordingly requested that DEP authorize the untimely filing. By order dated January 28, 1999, DEP denied the Motion to Enlarge Time and dismissed the amended petition, with prejudice, as being untimely. No appeal from that final agency action was taken. Lowery did not attend the final hearing. However, according to Holland, Lowery lives only 500 feet from the proposed cement plant. She boards horses on her property and frequently has children visit the property to ride their horses. The papers filed in her underlying case (OGC Case No. 98-2932) reflect that the facts in that case are essentially the same as those involving Holland. On November 12, 1998, Lowery filed in proper person a Petition for Formal Administrative Hearing which was virtually identical to the petition filed by Holland. As an additional ground, however, she alleged that the October 30, 1998, notice published by Petitioner was defective, and she requested that DEP require Petitioner to re-advertise the matter. There was no evidence that this petition was filed for an improper purpose or that Lowery's concerns were not genuine. On December 21, 1998, Lowery's petition was dismissed by DEP because she had failed to comply with the requirements of Rule 28-106.201(4), Florida Administrative Code. Like Holland, she was given until January 5, 1999, in which to file an amended petition. In papers filed by Lowery after this sanction proceeding arose, she denies that she had any knowledge that any further papers in the permit case would be filed on her behalf after the DEP dismissal order was entered. In any event, on January 12, 1999, or five days after the due date, Reading filed on Lowery's behalf with DEP an Amended Petition for Formal Administrative Hearing which was identical to that filed on behalf of Holland. Also, on January 14, 1999, Reading filed a Plaintiff's Motion to Enlarge Time seeking to excuse his tardiness in filing the amended petition. Both papers were served on Petitioner's counsel. On January 28, 1999, DEP entered its Final Order Denying Motion to Enlarge Time and dismissing Lowery's amended petition, with prejudice. No appeal from that final order was taken. Because no appeal was taken by either Respondent, DEP's intent to issue a permit became final, and it is fair to infer that a permit has been issued to Petitioner. On January 7, 1999, or prior to DEP's final order of dismissal, Petitioner's counsel noticed both Respondents for a deposition in Pensacola, Florida, on January 14, 1999. Because Reading had signed the amended petitions, Petitioner's counsel logically served the notices by Federal Express on Reading. However, Reading failed to notify Respondents, and neither he nor Respondents appeared at the deposition or advised counsel prior to the depositions that they would not appear. As a result, Petitioner incurred the costs and fees for having its counsel travel to Pensacola. In addition, Petitioner presumably incurred the cost of a court reporter's appearance fee. Assuming that Petitioner's claim is meritorious, those costs would be the responsibility of Reading, and not Respondents. At the hearing, it was represented that Reading is no longer a member of the Florida Bar. This is because in an unpublished order dated January 7, 1999, the Florida Supreme Court revoked his license to practice law effective 30 days thereafter, or on February 7, 1999. His current address is unknown. Petitioner has asserted that in defending against Respondents' petitions, "the bulk" of its costs and fees are related to the deposition and that a few other undisclosed fees and costs have been incurred. At the final hearing, Petitioner did not specify the amount of fees and costs that it seeks or provide any breakdown of those amounts; rather, it opted to provide an affidavit detailing those costs after this final order is rendered, assuming it prevails in this action.
The Issue Whether Petitioner entered a plea of nolo contendere to a felony thereby triggering the statutory mandate that the Department of State revoke his Security Officer's license for a period set by statute?
Findings Of Fact Chapter 493, Florida Statutes, governs the private security, investigative and recovery industries. The industries were found by the Legislature when it passed Chapter 90-364, Laws of Florida, in 1990, to be "rapidly expanding fields that require regulation to ensure that the interests of the public will be adequately served and protected." Section 493.6100, Florida Statutes. Among the findings announced by the Legislature in the enactment of the chapter was that "persons who are not of good moral character engaged in the private security, investigative or recovery industries are a threat to the welfare of the public if placed in positions of trust." Id. Petitioner, the Department of State, (the "Department") is the agency of the State of Florida conferred with administrative authority under Chapter 493, Florida Statutes. Among its duties are the receipt of applications for Security Officer licenses and their processing (including a background investigation) ultimately culminating in either issuance of the license or denial of the application. After issuance of a license to a new licensee, the Department has authority based on certain grounds to take disciplinary action against the licensee ranging from a reprimand to revocation of the license. Respondent, Louis Palmieri, holds a Class "D" Security Officer License issued by the Department. Bearing the license number D91-04959, the current license has been effective since March 25, 1997. On or about April 7, 1994, in Duval County, Florida, Respondent entered a plea of nolo contendere to the offense of "lewd and lascivious act upon a child," in the Circuit Court of Duval County, Florida, in Case No. 94-2507CF. An order of probation was rendered under which adjudication of guilt was withheld in favor of probation for five years under the supervision of the Department of Corrections. Neighbors and long-time friends of the family of Mr. Palmieri are aware that he entered the plea of nolo contendere to a felony. They are also aware of the nature of the felonious charges and his status as with regard to the criminal case as being "on probation." Still, they hold him in high regard. He is seen as reliable and a good worker. Those who occasionally drive him to work or have seen his workplace were quick to point out that there are no children present at the place where he is currently employed as a security officer. Mr. Palmieri has not shielded his neighbors from his misdeed. In fact, he has confided in them that the circumstances leading to his nolo plea involved exposing himself in public in the presence of a twelve-year old girl. Nonetheless, one of his neighbors, the grandmother of a five year-old girl who frequently cares for the child, stated that she would not hesitate to invite Mr. Palmieri over to her house for dinner in the presence of her granddaughter so long as Mr. Palmieri and the child were never left alone. Despite his neighbor's willingness to issue such an invitation, and to his credit, Mr. Palmieri informed his neighbor that he could not be in the child's presence consistent with the terms of his probation. Mr. Palmieri remains under the supervision of the Department of Corrections to this day. Absent a violation of probation, April 6, 1999, will be the last day of probationary supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, its is RECOMMENDED: That the Department of State enter a final order revoking the Class "D" Security Officer License of Louis Palmieri, License No. D91-04959, and that he not be able to reapply for a license pursuant to Chapter 493, Florida Statutes, until a period of three years has expired since his final release from supervision, whenever that may be. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. _ DAVID M. MALONEY Administrative Law Judge Hearings Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Douglas D. Sunshine Assistant General Counsel Office of the General Counsel Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Cathleen B. Clarke, Esquire Melbourne Financial Centre, Suite 102 1990 West New Haven Avenue Melbourne, Florida 32904 Honorable Sandra B. Mortham Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 John M. Russi, Director Division of Licensing Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's contractor's license based upon the alleged violations of Sections 489.129(1)(h) and (m), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (the "Board") as a certified general contractor having been issued License No. CG C024612. Respondent has been a licensed contractor since 1983. On May 3, 1991, the Board filed a Final Order in Board Case Nos. 89-009986 and 89-013330 imposing a reprimand against Respondent. The Final Order was issued as part of the settlement of an amended administrative complaint filed against Respondent by Petitioner regarding certain unrelated transactions. Respondent was the qualifying agent for Willie William Construction Company, Inc. until October 1985. At that time, as a result of a corporate name change, Respondent became the qualified agent for Ashar Construction Company. On February 21, 1985, the Unsafe Structures Board of the Building and Zoning Department for Dade County advised Ruby Delancy that a hearing would be conducted on March 12, 1985 to determine whether a one story framed residence that Mrs. Delancy owned at 1005 NW 58th Street in Miami (the "House" or the "Property") should be demolished. The Notice indicated that the structure was "open, vacant, vandalized, filled with combustible materials; posing a serious fire hazard. Structure is a danger to human life and public welfare." The Notice estimated the present value of the building at $16,080 and the estimated cost of repairs at $51,120. The County's records indicate that a Notice of Violation regarding the Property had been issued to the owner on October 31, 1984. Facing imminent demolition of the House, Mrs. Delancy began to investigate possible ways to get the House repaired. She filed an application with the City of Miami for a low income, low interest loan that was funded through Federal HUD Community Development Funds. Her efforts to obtain funding to repair the House, delayed the proceedings that had been initiated to demolish the structure. In September of 1985, the City approved Mrs. Delancy for a grant of $10,000 and loan of $20,000 to repair the House. Mrs. Delancy has no other funds to pay for repairs to the Property other than the $30,000 she was obtaining through the City Program. Under the City's program, Mrs. Delancy was responsible for selecting a contractor. Mrs. Delancy contacted Respondent, who inspected the Property and prepared a construction estimate which was submitted to the City. Respondent entered into a contract (the "Contract") dated September 20, 1985 with Mrs. Delancy for home improvement work on the House. The total contract price was $29,870, which was to be paid in two installments: $10,835 on or before December 31, 1985 and a final payment of $19,035 on or before March 3, 1986. The evidence established that Respondent was initially reluctant to enter into the Contract and at least two other contractors refused to undertake the work given the limited funds available. However, Respondent agreed to take the job because of Mrs. Delancy's insistence and because of Respondent's sympathy for Mrs. Delancy's desperate situation in view of the imminent demolition of the House. The evidence also established that Mrs. Delancy requested Respondent to undertake additional work and/or services that were beyond the scope of the Contract. Among the extra items undertaken by Respondent was replacement of the floor in the family room. Additional expenses were also incurred because of unanticipated problems encountered during the renovation. For example one side of the house gave way during the renovation work. Upon investigation, it was discovered that there was no footing. Respondent was required to shore up that side of the House. In addition, the electrician was unable to get a meter because there was an outstanding electric bill for the Property. Respondent paid the old bill in order to get the meter connected. Similarly, she paid the gas company to get the stove hooked up. It does not appear Respondent received any additional compensation for the extra work. Except for $345 that Respondent paid for utilities on behalf of Mrs. Delancy, the evidence at the hearing was insufficient to place a dollar value on these extra services and expenses. The first installment under the Contract of $10,835 was paid to Respondent on or about December 31, 1985. In approximately January of 1986, Mrs. Delancy's son, Gerald Delancy, who had been living out of the state, returned to Miami and became involved in overseeing the construction on behalf of his mother. Gerald Delancy was not pleased with the quality of the construction and a great deal of tension developed between Gerald Delancy and Respondent. The final payment request form was submitted on February 20, 1986. Mrs. Delancy signed a document (the "Certificate of Completeness") indicating that the work was completed and the final payment was made to Respondent by the City on March 3, 1986. Gerald Delancy was present when his mother signed the Certificate of Completeness. She signed this Certificate against the advice of her son. At the time the document was signed, Respondent agreed in principal to complete any remaining work. The City Inspection Form which was posted on the project fails to indicate that a final inspection approval was obtained from the City. In addition, the evidence established that required roof inspections were not obtained prior to the final structural inspection. Gerald Delancy prepared a punch list of items which he felt were incomplete and submitted it to Respondent. It does not appear that this list was prepared until July of 1986. Because of the dispute between Respondent and Gerald Delancy as to what was required under the Contract, a copy of the punch list was also sent to the City. The punch list prepared by Gerald Delancy included a number of items which were beyond the scope of the Contract. For example, with respect to the plumbing, the complaints included the following: the water pressure was to low on the water line, the kitchen sink was too small, and the bathroom vanity was substandard. The Contract did not provide for a bathroom vanity. There were also complaints about ants and roaches and "missing shower rods and towel racks" even though these items were not specifically included within the Contract between Respondent and Mrs. Delancy. The City sent its estimator to the House to review the punch list items. The City's estimator felt that Respondent should provide another coat of paint and should complete some other minor repair work, but the estimator did not concur in many of Gerald Delancy's complaints. The City's rehabilitation estimator met with Respondent and Gerald Delancy at the House on July 15, 1986. At that meeting, Respondent agreed to correct certain matters and asked for one month to complete the work. On August 1, 1986, the work was not completed and Respondent requested an additional 30 days. On August 13, 1986, Respondent stated that she did not have the money to complete the work. According to the City's estimator, the cost to repair the construction deficiencies he noted would be approximately $2,500 to $3,000 as of the date of the hearing. During this period in August, Respondent did send some workers back to the house to complete some additional work. A dispute arose between those workers and Gerald Delancy. The exact nature and reasons for this dispute are not clear. Ultimately, Gerald Delancy refused to allow the workers to perform any work because he did not feel he received adequate answers to his inquiries as to the nature of the work they intended to perform. After the City refused to concur in all of his complaints, Gerald Delancy hired a building inspection company. He paid that company $534 and it rendered a report dated August 4, 1986 which detailed many other deficiencies in the construction. It is not clear whether this report was ever presented to Respondent. On or about November 3, 1986, Mrs. Delancy, at the urging of her son, filed a lawsuit against Respondent. On or about August 8, 1989, Mrs. Delancy obtained a final default judgement against Respondent in the amount of $65,000 plus costs of $102.50. Respondent claims that she was unaware of the lawsuit and the default final judgement until Petitioner's investigator questioned her about it on September 25, 1990. As of the date of the hearing in this case, Respondent has not appealed the judgement nor has she attempted to have it set aside or vacated. In addition to alleged construction defects, the default judgement included claims against Respondent for allegedly mishandling certain household goods and other property owned by Mrs. Delancy. The evidence presented in this case was confusing and inconclusive as to the nature and justification for these claims by the Delancys for property which Respondent was allegedly storing for Mrs. Delancy. Apparently, Respondent agreed to assist Mrs. Delancy by moving some of the furniture out of the house and placing it in storage during construction. The contract did not require Respondent to provide any moving or storage services and there is no evidence that Respondent was paid for this work. Some or all of the property that was moved out of the house was lost, stolen or destroyed. There is a dispute between the parties as to circumstances surrounding the loss of this property. The evidence presented in this case was insufficient to establish what happened to the property, who was responsible for it and/or how much it was worth. It does appear that the default judgement against Respondent includes a very high assessment for the property involved. However, as noted above, that judgement has not been vacated or appealed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count I of the Administrative Complaint, finding the Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing the following disciplinary action against the Respondent: Imposition of an administrative fine of $1,000. Suspension of the Respondent's license for a period of one year, followed by two years probation under such terms as may be imposed by the Board. DONE and ENTERED this 22nd day of August, 1994, at Tallahassee, Florida. J. STEPHEN MENTON 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 22nd day of August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6438 Only Petitioner submitted a proposed recommended order. The following rulings are made with respect to the proposed findings of fact submitted by Petitioner. The Petitioner's Proposed Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 4, 11, and 12. Adopted in substance in Findings of Fact 3 through 9. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 14 through 18. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 16 through 18. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 20. Rejected as unnecessary. Adopted in substance in Findings of Fact 21 and 22. Subordinate to Findings of Fact 21. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21 and 22. Subordinate to Findings of Fact 21 and 22. Adopted in substance in Findings of Fact 1. COPIES FURNISHED: Theodore R. Gay, Esquire Dept. of Bus. and Prof. Reg. 401 NW 2nd Ave., Ste N-607 Miami, FL 33128 Agnes Sangster 9925 NW 25th Ave. Miami, FL 33147 Jack McRay Acting General Counsel Dept. of Bus. and Prof. Reg. 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard Hickok, Exec. Dir. Construction Industry Licensing 7960 Arlington Expressway, Ste 300 Jacksonville, FL 32211-7467
Findings Of Fact 6. The factual allegations in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2"4 Amended Order of Penalty Assessment, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2°4 Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-283-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On October 8, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-283-1A to CHARLES M. EIDENS, JAMES A. HABAN , RITA ZARNIK, AND RICHARD E. EIDENS, d/b/a PAINT BUSTERS OF THE EMERALD COAST, INC., A DISSOLVED FLORIDA CORPORATION, AND PAIN T BUSTERS OF THE EMERALD COAST, INC. (“PAINTBUSTERS”). The Stop- Work Order and Order of Penalty Assessment is attached as “Exhibit 1” and fully incorporated by reference. The Stop-Work Order and Order of Penalty Assessment was personally served on October 8, 2009, on PAINTBUSTERS. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein PAINTBUSTERS was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On November 13, 2009, the Department served by certified mail an Amended Order of Penalty Assessment on PAINTBUSTERS. The Amended Order of Penalty Assessment is attached hereto as “Exhibit 2” and fully incorporated herein by reference. The penalty assessed on PAINTBUSTERS was $98,242.15. The Amended Order of Penalty Assessment included a i Notice of Rights wherein PAINTBUSTERS was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 3. On November 24, 2009, PAINTBUSTERS submitted a Request for F ormal Hearing (“Petition”). The Petition was forwarded to the Division of Administrative Hearings (“DOAH”) and assigned DOAH case number 09-6634. 4. On January 8, 2010, the Administrative Law Judge granted the Department’s Motion to Amend Order of Penalty Assessment. The 2°4 Amended Order of Penalty Assessment superseded the original Amended Order of Penalty Assessment and increased the penalty to $98,336.87. A copy of the 2"! Amended Order of Penalty Assessment is attached hereto as “Exhibit 3” and fully incorporated by reference. 5. On March 25, 2010, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File in Case No. 09-6634 as a result of PAINTBUSTERS failing to comply with DOAH’s request for a Status Report. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 4” and fully incorporated herein by reference.
The Issue Whether Respondent committed the offenses as set forth in the Administrative Complaint dated June 13, 2000, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent is a licensed Certified General Contractor in the State of Florida. At all times material to this case, Respondent was the qualifying agent for Rivero Construction, Inc. On or about June 20, 1996, Respondent contracted with Manuel Chamizo (Chamizo) to construct a parking lot with drainage at 4735 Palm Avenue, Hialeah, Florida, and to repave the parking lot at 4719 Palm Avenue, Hialeah, Florida, for the total price of $7,090.00. Chamizo paid Rivero Construction, Inc., the full contract price. Respondent constructed the parking lot at 4735 Palm Avenue, but did so in a substandard manner. Specifically, the parking lot flooded and was rendered unusable because Respondent had broken a sewer pipe during construction. After being notified of the problem, Respondent failed to correct it. Respondent failed to perform any of the contracted work at 4719 Palm Avenue. Dissatisfied with Respondent's performance, Chamizo sued Rivero Construction, Inc., for damages in the County Court in and for Miami-Dade County, Florida. On or about August 24, 1998, the lawsuit was concluded in Chamizo's favor with the entry of a final judgment against Rivero Construction, Inc. Respondent has failed to satisfy the final judgment. Respondent has failed to obtain a qualified business certificate of authority. Petitioner has incurred costs of $1,669.09 in the investigation and prosecution of Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent committed the offenses set forth in the Administrative Complaint dated June 13, 2000; ordering that Respondent pay an administrative fine in the amount of $1,250; pay restitution to Manuel Chamizo in the amount of the Final Judgement obtained by Manuel Chamizo; and pay costs incurred in the investigation and prosecution of this proceeding in the initial amount of $1,669.09, plus costs incurred through the date of final action, which revised affidavit of costs will be submitted to the Board at final action. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 12th day of December, 2001. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Manuel Rivero 61 East 16th Street Hialeah, Florida 33010 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
