Findings Of Fact The Respondent, Eric Nartek, is now, and in the years relevant to this case, 1984 and 1985, a licensed real estate broker. On about August 6, 1984, Kenneth P. Grant and Mary E. Grant gave to Mr. Martek a deposit of $1,000 (in two payments) as deposit for the purchase of a condominium from Goldenrod Realty Company. At that time, Mr. Nartek was the broker and president of Goldenrod Realty Company. Through no fault of Mr. and Mrs. Grant, closing of the sale of the condominium was prevented due to a cloud on title. Subsequently, on March 21, 1985, Mr. and Mrs. Grant demanded return of their $1,000 deposit. Mr. Martek's office manager, who worked under Mr. Martek's supervision, disbursed the $1,000 deposit to pay interest expenses of the developer, expenses which were not in any way an expense of the Grant's contract for sale. Mr. Martek asserted that he reviewed the disbursements from the escrow account every week and that he was in Boca Raton during this period, and not physically in the office. He discovered the disbursement after the fact. The disbursement was made to the developer by the office manager upon the request of the attorney for the developer. The office manager did not contact Mr. Martek before making the disbursement. Mr. Martek allowed his office manager to make disbursements from escrowed deposits without his prior review and approval. Mr. Martek requested an escrow disbursement order from the Florida Real Estate Commission, and that request was denied by letter dated June 24, 1985, since there was no contract closing date. The letter advised Mr. Martek that he immediately use one of the other two alternatives under section 475.25(1)(d), Fla. Stat., to either arrange for arbitration or to place the dispute before a civil court. Mr. Martek received the letter of June 24, 1985. He did not initiate either alternative. The $1,000 deposit has not been returned to Mr. and Mrs. Grant.
Recommendation For these reasons, it is recommended that the Petitioner enter its final order finding the Respondent in violation of sections 475.25(1)(b) and (d), Fla. Stat., and suspending his real estate license for one (1) year. DONE and RECOMMENDED this 13th day of May, 1988, in Tallahassee, Florida. WILLIAM C. SHERILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1988. COPIES FURNISHED: Arthur R. Shell, Esquire DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Eric Martek 5118 South Federal Highway Stuart, Florida 33494 Darlene F. Keller Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida, 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be determined is whether Respondent complied with coverage requirements of the workers' compensation law, Chapter 440, Florida Statutes. A determination of whether Respondent functioned as an employer is a preliminary issue to be resolved.
Findings Of Fact Petitioner is the agency of state government currently responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers secure the payment of compensation for their employees. Respondent works in the fence construction industry and employs four people. Petitioner's investigator identified three people preparing a worksite for the erection of a privacy fence at 3000 Majestic Oaks Lane South in Jacksonville, Florida. The investigator then contacted Respondent and confirmed that the three identified individuals in addition to Respondent, were employed by Respondent for a total of four employees. The investigator determined none of the employees had workers’ compensation exemptions nor had Respondent secured the payment of workers’ compensation to his employees. On April 27, 2005, the investigator served a SWO on Respondent. The SWO required Respondent to cease all business operations in Florida. At the same time, the investigator served a Request for Business Records for Penalty Calculation on Respondent, requesting payroll records from Respondent for the period April 27, 2002, through April 27, 2005 (the audit period for penalty calculation). Respondent provided no records to the investigator. On May 23, 2005, the investigator determined 520 days had passed between the beginning of the audit period and September 30, 2003, and the penalty for noncompliance during this period was $52,000.00. The investigator also determined that during the period October 1, 2003, through the end of the audit period, the statewide average weekly wage paid by employers was $651.38; Respondent had four (4) employees; the imputed weekly payroll for Respondent’s employees was $320,848.00; using approved manual rates Respondent should have paid $97,969.40 in workers’ compensation premium; and the penalty for noncompliance during this period was calculated to be $146,954.12. On May 26, 2005, Investigator Bowman served the Amended Order of Penalty Assessment on Respondent. The Amended Order assessed Respondent with a penalty for the entire audit period in the amount of $198,954.12. The investigator obtained records created by Respondent demonstrating Respondent placed a bid on a job on June 1, 2005, and Respondent completed the job on July 1, 2005. On July 19, 2005, the investigator served a Corrected Amended Order of Penalty Assessment on Respondent, which assessed a penalty in the amount of $3,000.00 for violating the terms of the SWO. Respondent violated the SWO on two separate days, the day of the bid and the day the work was completed. No competent substantial evidence was presented regarding intervening business operations.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order affirming the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Corrected Amended Order of Penalty Assessment, requiring Respondent to pay a penalty in the amount of $200,594.12 to Petitioner, and requiring Respondent to cease all business operations in Florida. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 15th day of September, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers Compensation 200 East Gaines Street Tallahassee, Florida 32399-422 Martin D. Snyder 10367 Allene Road Jacksonville, Florida 32219 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carols G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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)
Findings Of Fact On January 1, 1977, the Department of Highway Safety and Motor Vehicles issued Dealer a license to conduct the business of buying and selling motor vehicles at U.S. Highway 441, South, Leesburg, Florida. On January 19, 1977, Dealer's license was revoked by the Department of Highway Safety and Motor Vehicles for the reason that Dealer was no longer conducting business. Effective November 1, 1975, Dealer and Manufacturer executed franchise agreements authorizing Dealer to conduct dealership operations on behalf of Buick Motor Division, Pontiac Division and GMC Truck Division. These franchise agreements provide that they may be terminated if a required license is revoked or if the dealer fails to maintain his operation open for business for seven (7) consecutive business days. On January 28, 1977, Manufacturer gave Dealer notice that the three franchise agreements would terminate on the ninetieth day following receipt of the notice. The grounds for revocation were that the Dealer's license had been revoked and that dealership operations were not maintained for seven consecutive business days.
The Issue At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner, Department of Business and Professional Regulation, is a state governmental licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 489, Florida Statutes, relating to contracting. Respondent, Richard Nelson, whose last known address was 15201 Southwest 112 Avenue, Miami, Florida 33157, is not now and was not at any time pertinent to this case, registered or certified to engage in the business of contracting, as required by Chapter 489, Florida Statutes. On or about April 12, 1993, respondent, on behalf of Nelson Development Company, Inc., whose address was stated to be 15201 Southwest 112 Avenue, Miami, Florida 33157, contracted with Vera B. Selmore to reroof and repair damage occasioned to her single family residence, at 8200 Southwest 140 Avenue, Miami, Florida, by Hurricane Andrew. Nelson Development Company, Inc., was not, at any time pertinent to this case, qualified to engage in contracting, as required by Chapter 489, Florida Statutes. The contracted price under the aforesaid construction contract, including change orders, was $23,160, of which respondent received $18,327.19. At some time between April 12, 1993 and May 9, 1993, construction commenced under the aforesaid contract, and continued sporadically and unsatisfactorily, as evidenced by poor and incomplete work, until March 3, 1994, when petitioner served respondent with a notice to cease and desist the "unlicensed and illegal practice of contracting."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the offense set forth in the administrative complaint, and imposing an administrative penalty of $5,000 for such violation. DONE AND ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 11th day of June, 1996. COPIES FURNISHED: Donna Bass, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Richard Nelson 15201 Southwest 112th Avenue Miami, Florida 33157 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Did Respondent fail to comply with Sections 440.10 and 440.38, Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida government responsible for enforcing the statutory requirement, pursuant to Chapter 440, Florida Statutes, that employers secure the payment of workers' compensation for the benefit of their employees. Respondent works in the construction industry, specifically as it relates to drywall services. On February 25, 2004, Petitioner's investigator, David Kunz, visited Respondent's worksite at 400 West Bay Street in Jacksonville, Florida (also known as the Bennett Federal Building). Petitioner's investigator observed 12 workers engaged in drywall construction. Mr. Kunz spoke with Respondent's project foreman at the worksite, and with the assistance of a Spanish-speaking colleague, he interviewed all of Respondent's workers at the site. A representative of the general contractor, Skanska, U.S.A., furnished Petitioner's investigator with a certificate of workers' compensation insurance which had been provided to the general contractor by Respondent as a subcontractor on the Bennett Federal Building job. The address listed for Respondent was in North Carolina, and the producer of the policy also had a North Carolina address. The next day, Petitioner's investigator obtained a copy of Respondent's workers' compensation insurance policy. After reviewing the policy, the investigator concluded that Respondent had violated Florida's Workers' Compensation Law, because an endorsement applying Florida premium rates was not a part of the policy. Mr. Kunz then issued a Stop Work Order to Respondent on February 26, 2004. The Stop Work Order required Respondent to cease its business operations immediately, due to its lack of compliance with Chapter 440, Florida Statutes. By the Stop Work Order, Respondent was charged with failure to secure the payment of workers' compensation that met the requirements of Chapter 440, Florida Statutes, and the Florida Insurance Code, because North Carolina premium rates, rather than Florida premium rates, had been applied. The Stop Work Order indicated that the penalty amount assessed against Respondent would be subject to amendment based on further information provided by Respondent, including the provision of business records. St. Paul's Insurance Companies maintain a presence in Orlando, Florida, but the documents subsequently provided by Respondent to the investigator as purported proof of Respondent's compliance with Chapter 440, Florida Statutes, did not meet all necessary Florida requirements. The carrier on Respondent's policy is St. Paul Fire and Marine Insurance Company. The "producer" was "Insur A Car Commercial" in North Carolina. The "producer" is the agent responsible for processing the policy for the insurance carrier. Respondent's workers' compensation insurance policy lists U & M Contractors, Inc., 9036 Arborgate Dr., Apt. A, Charlotte, NC 28273 in the "Insured" column. The policy number is 6S16UB-0130B52-8-03. Respondent's insurance policy was "produced" outside Florida. Respondent had procured workers' compensation insurance from an insurance carrier which was appropriately licensed to do business in Florida, but Respondent did not maintain at all times a Florida endorsement to its policy indicating that the applicable premium rates were Florida premium rates. Respondent's workers' compensation insurance policy includes no Florida endorsement showing the application of Florida premium rates. Only North Carolina is listed in Item 3A of Respondent's workers' compensation policy. The endorsement (WC 00 03 26 (A)) for "Other States Insurance" in Respondent's policy specifically states that it "does not satisfy the requirements of that state's workers' compensation law" for any state not listed in Item 3A. Florida is not listed in Item 3A. The "Extension of Information" page of Respondent's workers' compensation insurance policy indicates the type of work that Respondent intends to perform, pursuant to the policy. The type of work is indicated by a class code, or number, assigned to the type or category of work. The Extension of Information page assigns class code 5445 (drywall installation) as to the work Respondent would be performing under the policy. The source for the class codes is the SCOPES Manual, published by the National Council on Compensation Insurance (NCCI). Petitioner's Agency's adoption of the SCOPES Manual was accomplished by Florida Administrative Code Rule 69L-6.021. Respondent's policy's Extension of Information page further indicates that a premium rate (rate per $100.00 of remuneration provided to Respondent's employees) of $10.20 had been applied by the insurer for class code 5445, and that the premium rate was for North Carolina, not Florida. By contrast, the approved Florida premium rate for class code 5445 is $20.88 per $100.00 of remuneration. The source for Florida premium rates is the NCCI Basic Manual. Mr. Kunz testified that the Basic Manual is used regularly by workers' compensation investigators. Mr. Kunz issued an Agency Request for Business Records on February 26, 2004, the same date as the Stop Work Order. He specifically sought Respondent's payroll records, because Chapter 440 requires Petitioner "to calculate the penalty of an employer who is in noncompliance based on the employer's payroll." Some payroll records were forwarded to Mr. Kunz by Respondent. Some payroll records were provided to one of Petitioner's fellow investigators by a general contractor for whom Respondent had subcontracted drywall installation at the Bennett Federal Building worksite. The latter records were part of a separate investigation, but were shared between the two investigators. However, several weeks of Respondent's payroll records were not initially provided from any source. Respondent's payroll records include, among other entries, the names of its workers and the dates and amounts of remuneration provided to those workers. The records indicate that Respondent provided remuneration to its workers in the years 2003 and 2004. The penalty period assigned by Petitioner against Respondent is from November 17, 2003, through February 25, 2004, because November 17, 2003, was the day that work on the Bennett Federal Building began, and February 25, 2004, was the date listed in the Stop Work Order. Mr. Kunz used the payroll records he had to calculate an initial penalty amount of $74,479.90. Payroll for weeks not accounted for in Respondent's first production of payroll records was imputed by Mr. Kunz in the initial penalty amount, pursuant to Chapter 440, by calculations based on the first records he had. He issued the First Amended Penalty Assessment Order (Amended Order) to Respondent on March 3, 2004, in the amount of $74,479.90. A subsequent production of records by Respondent caused Petitioner to recalculate the penalty for some weeks for which payroll previously had only been imputed. The recalculation caused the assessed penalty amount to decrease to $51,779.50, and on March 9, 2004, a second Amended Order in the amount of $51,779.50 was issued to Respondent. The second Amended Order included the imputation of payroll for Respondent's two owners, Juan Mitchell (Mitchell) and Hector Urbina (Urbina). Mr. Kunz had received no payroll records at any time for the two owners, though he had twice specifically requested those records. He determined that the owners were named on Respondent's insurance policy and had actually been present on the Florida worksite. Mitchell and Urbina are classified under code 5445 (drywall installation). Their respective average weekly wages for the entire penalty period was imputed according to Chapter 440, and the penalty amount for Mitchell and Urbina was calculated by first multiplying the evaded premium amount by the premium rate for class code 5445. The evaded premium amount was determined by taking the amount of wages for a penalty period, dividing it by one hundred (100), and multiplying it by the premium rate for the pertinent class code. The evaded premium amount was then multiplied by 1.5 to arrive at the penalty amount assessed for Mitchell ($4,434.72) and for Urbina ($4,434.72). The 1.5 multiplier is specifically required by Section 440.107(7)(d)1., Florida Statutes. Wages were similarly imputed for the following employees for February 23, 24, and 25, in 2004, because records did not exist for that partial work week: Alex Rosales; Jose Jimenez: Julio Betata; Orlin Betata; Erick Estrada; Melvin Landaverde; Neptale Lopez; and Jose Valentin. In calculating the penalty for the remainder of Respondent's workers for whom payroll records were provided, Petitioner's investigator similarly applied the foregoing methodology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order that affirms the Stop Work Order and assesses the $51,779.50 penalty cited in the Second Amended Order. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 7th day of April, 2005. COPIES FURNISHED: Joe Thompson Assistant General Counsel Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399 Juan Carlos Mitchell U & M Contractors 1912 Southwest 67th Avenue Fort Lauderdale, Florida 33068 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues in this case are whether Respondent, Juan C. Chavarriaga, committed the violations alleged in a four-count Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Real Estate, on January 17, 2008, and, if so, what disciplinary action should be taken against his Florida real estate broker associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes, and charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapter 475, Florida Statutes. Respondent, Juan C. Chavarriaga, is, and was at the times material to this matter, the holder of a Florida real estate broker associate license, license number 3130017, issued by the Division. At all times relevant, Mr. Chavarriaga was employed as a real estate associate with Ocampo & Alvarez Realty LLC. On or about March 30, 2006, Mr. Chavarriaga rented real property (hereinafter referred to as the “Subject Property”) to Carlos Alvarez for an annual lease amount of $18,000.00 or $1,500.00 per month (Pre-hearing Stipulation). The Subject Property was rented pursuant to a Residential Lease for Single Family Home and Duplex agreement (hereinafter referred to as the “Lease”) which was entered into on or about March 30, 2006 (Petitioner’s Exhibit 5). Mr. Chavarriaga, according to an admission he made to Veronica Hardy, a Division investigator, received rent paid for the rental of the Subject Property pursuant to the Lease. According to an admission of Mr. Chavarriaga, the Subject Property was owned by Claudia Mejia. Mr. Chavarriaga’s real estate broker employer was unaware of the Lease or Mr. Chavarriaga’s involvement therein. The Lease was entered into without written permission from Ms. Mejia, according to another admission of Mr. Chavarriaga. The evidence failed to prove, however, that Ms. Mejia was unaware of the Lease or that she had not verbally authorized Mr. Chavarriaga to rent the Subject Property on her behalf. Mr. Chavarriaga also admitted to Ms. Hardy that he received rents pursuant to the Lease which were deposited with a company named Maux Management. What Maux Management is was not proved. Nor was it proved that Mr. Chavarriagag owned Maux Management. As to what was done with moneys received pursuant to the Lease, the only competent substantial evidence again consists of an admission by Mr. Chavarriaga: he told Ms. Hardy that the rents were deposited with Maux Management, which then paid part of the proceeds for reasonable expenses related to the Lease and deposited the remainder in the account of Ms. Mejia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Real Estate: Dismissing Counts I and II of the Administrative Complaint; Finding that Mr. Chavarriaga is guilty of the violation alleged in Counts III and IV of the Administrative Complaint; and Suspending Mr. Chavarriaga’s real estate associate license for a period of one year and requiring that he pay an administrative fine of $1,000.00. DONE AND ENTERED this day of 8th day of September, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 8th day of September, 2008. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Alan A. Glenn, Esquire 14629 Southwest 104 Street, No. 432 Miami, Florida 33186 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto, Respondent, William C. Leistner, was the holder of registered pool contractor's license number RP 0026242 issued by Petitioner, Department of Professional Regulation. On or about October 20, 1978, Respondent contracted with Mr. and Mrs. Joseph Caiazzo to construct a pool at 700 Coronado Drive, Punta Gorda Isles, Florida. Construction began on November 1, 1978, and Respondent was paid in full on December 8, 1978. On or about April 14, 1979, and July 13, 1979, the Respondent received two notices of additions or corrections from the City of Punta Gorda for violations of the city code on work relating to the construction of the pool. Because of Respondent's failure to make the aforesaid additions or corrections, the City of Punta Gorda revoked the license of Respondent on August 13, 1979. Respondent admitted that the above violations occurred. However, he declined to present any mitigating evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent William C. Leistner, be found guilty of the charges set forth in the Administrative Complaint and that his license be suspended for a period of six months from the date of the final order entered herein. DONE and ENTERED this 12th day of June, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. William C. Leistner 741 Sabal Palm Lane Punta Gorda, Florida 33950
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 The issue for determination is whether Petitioner's claim is barred by Section 760.11(7), Florida Statutes (1999), because Petitioner filed a request for hearing more than 35 days after the time prescribed in Section 760.11(3) for a determination of reasonable cause by the Florida Commission on Human Relations (the "Commission"). (All statutory references are to Florida Statutes (1999) unless otherwise stated).
Findings Of Fact Respondent employed Petitioner until June 15, 1995. Petitioner filed a Charge of Discrimination with the Commission on July 10, 1995. The Charge of Discrimination alleges that Petitioner was forced to leave her position of employment because of Petitioner's religion. The Charge of Discrimination alleges, in relevant part, that Respondent terminated Petitioner's employment because she is Christian and "always trying to convert people." Time Limits The Charge of Discrimination was timely filed pursuant to Section 760.11(1). The filing date of July 10, 1995, fell within 365 days of June 15, 1995, which is the date of the alleged discrimination. Section 760.11(3) authorizes the Commission to issue a determination of reasonable cause within 180 days of July 10, 1995; the date Petitioner filed the Charge of Discrimination. Counting July 11, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized the Commission to determine reasonable cause no later than January 6, 1996. The Commission issued a Notice of Determination: No Cause on January 31, 2000. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of January 6, 1996. Counting January 7, 1996, as the first day of the 35-day period, Section 760.11(7) required Petitioner to file a request for hearing no later than February 10, 1996. Petitioner did not timely file a request for hearing. Petitioner first requested a hearing in the Petition for Relief filed on February 18, 2000. Petitioner filed her request for hearing approximately 1,468 days late and 1,503 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Petitioner did not respond to the Order to Show Cause to explain why she filed the request for hearing late. Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as barred by Section 760.11(7). DONE AND ENTERED this 6th 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 6th day of June, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Maria J. Green 1800 Biscayne Drive, Apartment 4 Winter Park, Florida 32789 Stephen H. Price, Esquire Cramer and Price, P.A. 1420 Edgewater Drive Olando, Florida 32804 Don Reynolds, Director American Home Companions, Inc. Post Office Box 547062 Orlando, Florida 32854
