The Issue The issue presented is whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority."
Findings Of Fact The following facts have been stipulated by the parties: Petitioner, Brian L. Blair, is a Respondent in a case before DOAH styled, Florida Elections Commission v. Brian L. Blair, Case No. 09-2069, wherein the Florida Elections Commission ("Commission") has charged Mr. Blair with two counts of willfully accepting campaign contributions in excess of $500.00 in violation of Subsection 106.19(1)(a), Florida Statutes. Petitioner filed a Petition to Determine Invalidity of Existing Rule on August 28, 2009, wherein he alleges that the Commission Rule, Florida Administrative Code Rule 2B-1.002, constitutes an invalid exercise of delegated legislative authority. As a person subject to Chapter 106, Florida Statutes, and accused of willfully violating one of its prohibitions, Mr. Blair is substantially affected by the Commission's application of Florida Administrative Code Rule 2B-1.002 to his case and, therefore, has the requisite standing to bring this action. In 2007, the Florida Legislature repealed Section 106.37, Florida Statutes (2006), which contained a definition of "willfulness" for purposes of Chapter 106, Florida Statutes. That section was repealed by CS/HB 537 (Section 51, Chapter 2007-30, Laws of Florida), effective January 1, 2008. Contemporaneous with the repeal of Section 106.37, Florida Statutes, the same legislation amended Subsection 106.25(3), Florida Statutes, to provide that willfulness is "a determination of fact." (§ 48, Chap. 2007-30, Laws of Florida, effective January 1, 2008). Subsection 106.25(3), Florida Statutes, currently provides: (3) For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission. (Emphasis added.) The 2007 Legislative Session ended on May 4, 2007; CS/HB 537 was signed and approved by the Governor on May 22, 2007. On May 24 and 25, 2007, Barbara Linthicum, executive director of the Commission at the time, engaged in the following exchange via email with the Commission's attorney, Edward A. Tellechea, counsel of record in this case, regarding Florida Administrative Code Rule 2B-1.002: Ms. Linthicum: "Do you think we have authority to add chapter 106 to the willfulness rule?" Mr. Tellechea: ". . . Someone will challenge it[,] but what the heck[,] I'm game." Ms. Linthicum: "But, if you are game, I think we should definitely go ahead before January 1 comes along. You certainly do have a good track record defending our rules" The amendment of Florida Administrative Code Rule 2B-1.002 was effective December 25, 2007. The repeal of the definition of "willfulness" in Section 106.37, Florida Statutes, became effective January 1, 2008. The proposed rule amendment to Florida Administrative Code Rule 2B-1.002 that is the subject of this proceeding was reviewed in 2007 by the Joint Administrative Procedures Committee of the Florida Legislature, pursuant to Section 120.545, Florida Statutes, prior to its adoption, and the Committee made no written comments or filed any written objections. In order to determine whether willful violations of Chapter 106, Florida Statutes, have occurred, the Commission employs the definition of "willful" contained in Florida Administrative Code Rule 2B-1.002, when making the factual determination of willfulness.
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
Recommendation It is recommended that the Florida Construction Industry Licensing Board dismiss the Respondent from further responsibility to answer to the Administrative Complaint. DONE and ENTERED this 25th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John W. Tanner, Esquire Suite One. 434 N. Halifax Avenue Daytona Beach, Florida 32018
Findings Of Fact Rule 21E-12.08, Florida Administrative Code, a rule of the Construction Industry Licensing Board, was adopted in compliance with the procedural requirements of Chapter 120, Florida Statutes. This rule was effective on January 6, 1980, and was amended on December 19, 1982. On or about January 19, 1983, an order of the Construction Industry Licensing Board imposed fines of $2,000 on each of the Petitioners. This order did not specify a time certain by which these fines were to be paid. This order was appealed, and on or about April 4, 1984, a Mandate was issued by the Fourth District Court of Appeal which affirmed the order. On or about April 12, 1984, the Executive Director of the Construction Industry Licensing Board hand-delivered to each of the Petitioners a letter dated April 12, 1984, which stated in part "You shall pay an administrative fine in the amount of $2,000 within 30 days to the Executive Director, Florida Construction Industry Licensing Board. " These fines have not been paid. Rule 21E-12.08, Florida Administrative Code, cites as authority therefor Sections 455.227(2) and 489.129(2), Florida Statutes.
The Issue Whether Respondent's renewal application for registration as an intrastate mover should be denied for the reasons set forth in the September 23, 2019, Denial of Application Letter.
Findings Of Fact The Department is the state agency responsible for permitting and regulating household moving services in the State of Florida. Respondent is a Florida corporation and conducts household moving services to the general public. Harwood Case Respondent is a named Defendant in the case of Susan Harwood v Licensed Interstate Transport Corporation and Florida Licensed Moving Corporation, filed in Seminole County Circuit Court, under Case No. 2019- CA-000309-16-G (“Harwood Case”). The case alleged a breach of contract action for damages and violations of chapter 507. On June 20, 2019, a default judgment was entered against Respondent in the Harwood Case in the amount of $30,000.00, representing a $5,000.00 civil penalty for each of the six separate violations of chapter 507, which also constitute deceptive and unfair trade practices under sections 501.201- 501.213, Florida Statutes, the "Florida Deceptive and Unfair Trade Practices Act," $800.00 in actual damages for breach of contract, plus an award of costs, and interest. Respondent asserts it was not properly served in the Harwood Case and was not aware of the judgment until notified by the Denial Letter issued in this case on September 23, 2019. After receipt of the Denial Letter, Respondent immediately filed a Motion to Set Aside Default Judgment in the Harwood Case, which as of the date of the final hearing, had not been set for hearing. The judgment remains unpaid by Respondent. Enforcement Action On September 14, 2018, the Department filed an enforcement action against Respondent in Seminole County Case No. 2018-CA-002516. The allegations contained in the pleading allege multiple violations of chapter 507, including allegations that Respondent engaged in fraudulent and dishonest acts while operating as a mover. This case is currently pending. More specifically, this action alleges multiple acts of fraud, misrepresentation, or failure to disclose material facts to customers in violation of chapter 507. Respondent allegedly engaged in “hostage moves” – the practice of providing a low-ball cost estimates for moving and storage, then refusing to relinquish the goods without requiring greater amounts. Respondent also allegedly resorted to threats for excessive payments, failed to provide estimates or contracts prior to moves, refused to accept credit card payments, and failed to maintain insurance coverage. Alleged False Statements in Application As part of its basis to deny Respondent’s application, the Department asserts that Respondent was dishonest in the renewal application to be a registered mover. It is a violation of section 507.02 to knowingly make a false statement, representation, or certification in any application required to be submitted under chapter 507. The application contained two questions upon which the Department based its denial, which read as follows: Has this person not satisfied a civil fine or penalty arising out of any administrative or enforcement action brought by any government agency or private person based upon conduct involving fraud, dishonest dealing or any act of moral turpitude? Does this person have a pending criminal, administrative, or enforcement proceeding in any jurisdiction, based upon conduct involving fraud, dishonest dealing, or any act of moral turpitude? (emphasis added). Respondent’s President, James Fischer, answered “no” to these questions, which were truthful and accurate. He understood the questions to be specifically asked to the individual submitting the application on behalf of the entity applying. In fact, these questions appear on the application under the heading, “Owner/Management Information.” Mr. Fischer did not knowingly make any false statements. There was no unsatisfied judgment against Mr. Fischer, nor was there a pending case against him when the application was made. As to question (a) above, Mr. Fischer had no knowledge that there was a judgment from the Harwood Case when he answered the question truthfully. The questions were poorly worded and used the word “person” instead of using the word “applicant.” The failure of the wording should not be construed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Respondent’s renewal application to provide household moving services. DONE AND ENTERED this 5th day of May, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 5th day of May, 2020. COPIES FURNISHED: Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-6587 (eServed) Donald Goldrich, Esquire Donald S. Goldrich, P.A. 5177 Northwest 74th Manor Coconut Creek, Florida 33073-2734 (eServed) Amanda B. McKibben, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-6587 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On June 9, 1987, Respondent entered into a contract with Kevin D. Foy for the construction of a pool with a screen enclosure on Mr. Foy's property for the sum of $12,000.00. On August 12, 1987, Mr. Foy made his final payment to the Respondent for the pool and enclosure and all related work. On June 9, 1987, Respondent entered into a contract with Harold Orcutt for the construction of a pool with a screen enclosure on Mr. Orcutt's property for the sum of $18,015.00. On August 1, 1987, Mr. Orcutt made his final payment to the Respondent for the pool and enclosure and all related work. On May 12, 1987, Respondent entered into a contract with Ann McAuley for the construction of a pool with a screen enclosure on Ms. McAuley's property for the sum of $14,204.08. On September 18, 1987, Ms. McAuley made her final payment to the Respondent for the pool and enclosure and all related work. At the end of September, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Foy residence, pursuance to the Respondent's contract with the Foys. The total Paragon contract price was $3,975.00 which was to be paid by the Respondent to Paragon within two weeks of October 6, 1987, which was the completion date. The Respondent failed to pay that amount in a timely manner. On or about July 16, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Orcutt residence pursuant to the Respondent's contract with the Orcutts. The total Paragon contract price was $4,910.00, which was to be paid by the Respondent to Paragon within two weeks of the first part of August, 1987, which was the completion date. The Respondent made a partial payment on August 17, 1987, of $3,015.00 and the balance of $895.00 was not paid in a timely manner. On or about July 20, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install a pool enclosure at the McAuley residence pursuant to the Respondent's contract with Ms. McAuley. The total Paragon contract price was $4,321.00 which was to be paid by the Respondent to Paragon within two weeks of August 5, 1987, which was the completion date. The Respondent made a partial payment on September 12, 1987, of $2,704.08 which left a balance of $1,616.92 which was not paid in a timely manner. When the Respondent failed to timely pay Paragon Aluminum Products, Inc., at the end of the foregoing jobs, an officer of Paragon contacted the Citrus County Building Department in an effort to have that department aid her in collection of the monies owed. The Respondent admitted to an investigator of the Department of Professional Regulation on June 7, 1988, that he was having cash problems in relation to the three jobs, that all work had been completed, but due to those cash flow problems, Paragon had not been paid in full. The Respondent signed a personal promissory note for the full amount due to Paragon. No liens were ever filed by Paragon. The Respondent's county license was suspended the Citrus County Licensing Board on May 11, 1988, until he was able to show financial responsibility to that board. That suspension was lifted by the Citrus County Licensing Board on October 12, 1988. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $1500 for the violation of Section 489.129(1)(i) Dismiss the remaining charges made in the Administrative Complaint. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the facts to which the parties stipulated at the outset of the final hearing (Parties' Stipulations)2: The contract referenced in the Parties' Stipulations (Building Contract) was signed by Mr. Stasinos (on behalf of ICC) and Mr. Skiera (on behalf of himself and his wife) on June 29, 2000. The home that ICC agreed to build for the Skieras (Skiera Residence) was described in the Building Contract as a "[c]ustom two-story residence with detached garage and riding cor[r]al for a total of 5,370 square feet." It was to be constructed on a tract of land owned by the Skieras in Boynton, Beach, Florida. The Building Contract provided for the following allowances: $20,000.00 for "electrical"; $17,000.00 for "plumbing"; $15,000 for "HVAC"; a "door hardware allowance" of "$50.00 per [interior] door"; $6,000.00 for a "stacked stone veneer" exterior; an "entry door hardware allowance" of "$100.00 per door"; $15,000.00 for "kitchen cabinetry and vanity"; $8,000.00 for "counter tops and vanity tops"; $9,000.00 for "landscaping," including "trees, shrubs, sod, automatic time clock, [and an] operated irrigation system with rain sensor"; and $7,000 for "driveways, walkways, [and] flatwork." There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes. The Building Contract contained a "[p]ayment [d]raw [s]chedule," which provided as follows: Upon execution of contract: 10%- $36,608.00 Thereafter, progress payments based on schedule of values. This "schedule of values" (referred to in the "[p]ayment [d]raw [s]chedule") contained the following "scheduled values" (excluding change orders): 1. Permits $21,600.00 2. Clearing/Grading/Fill $10,800.00 3. Foot'gs. Undgr Plumb, Soil Treatmt $23,000.00 4. Foundation/Slab poured $32,760.00 5. Exterior Walls/Tie Beam $26,600.00 6. Roof Trusses $26,600.00 7. Roof Sheathing/Felt $19,400.00 8. Interior Framing Complete $14,000.00 9. Windows/Exterior Door Frames Set $14,400.00 10. 2nd Plumbing/Tub Set $7,200.00 11. Wiring Rough-In $14,400.00 12. HVAC Ducts Installed $7,200.00 13. Roof Shingles/Tiles Installed $14,400.00 14. Insulation (wall & ceiling) $4,200.00 15. Exterior Trim/Soffits $11,800.00 16. Drywall Hung $14,400.00 17. Drywall Finish $10,800.00 18. Interior Trim/Interior Doors Installed $13,400.00 19. Interior Paint $8,800.00 20. Siding/Stucco $14,400.00 21. Exterior Paint Complete $8,800.00 22. Exterior Doors & Garage Door Install $6,200.00 23. Cabinets/Countertops Installed $10,000.00 24. Plumbing Finish $3,600.00 25. Electrical Finish $5,600.00 26. HVAC-Compressor/A.H. Installed $10,920.00 27. Driveway/Walks Installed $3,600.00 28. Landscaping/Irrigation $7,200.00 There were six separate change orders. They were dated August 20, 2000 (Change Order No. 001), August 29, 2000 (Change Order No. 002), September 26, 2000 (Change Order No. 003), October 15, 2000 (Change Order No. 004), October 15, 2000 (Change Order No. 005), and November 10, 2000 (Change Order No. 006). As of December 21, 2000, ICC had been paid in full for all six change orders, as well as for items 1 through 8 on the "schedule of values." As of February 27, 2001, ICC had received additional monies from the Skieras: payment in full for items 9 through 12 and 15 on the "schedule of values" and partial (50 percent) payment for items 13 and 20 on the "schedule of values." As of April 10, 2001, ICC had been paid a total of $287,966.20 (all from the proceeds of a mortgage loan the Skieras had obtained from Admiralty Bank) for work done on the Skiera Residence. On May 1, 2001, the Skieras paid ICC an additional $16,800.00 for drywall work, bringing the total amount of payments that ICC had received from (or on behalf of) the Skieras, as of that date, to $304,766.20. The Skieras made no further payments to ICC. The "eight valid claims of lien" referenced in the Parties' Stipulations were filed by eight different subcontractors, all of whom had been hired by ICC to work on the Skiera Residence: Boca Concrete Pumping, Inc.; Gulf Stream Lumber Company; L & W Supply Corp., d/b/a Seacoast Supply; Waste Management of Palm Beach; B.T. Glass & Mirror, Inc.; Boca Raton Decorating Center Company; American Stairs; and Broten Garage Door Sales Inc.3 Boca Concrete Pumping was the "very first" subcontractor to work on the construction of the Skiera Residence. It did the "slab work, the foundation" (referenced in item 4 of "schedule of values"). Its lien was recorded on December 6, 2000. The lien was in the amount of $1,001.25, and it indicated, on its face, that it was for unpaid "concrete pumping" that had been furnished between September 8, 2000, and September 22, 2000. A satisfaction of this lien, dated March 8, 2001, was filed March 24, 2001. Gulf Stream Lumber's original lien was recorded February 15, 2001. It was in the amount of $67,872.59, and it indicated, on its face, that it was for unpaid "building material" that had been furnished between August 15, 2000, and January 24, 2001. An amended claim of lien was recorded May 3, 2001, in the amount of $36,530.59 for unpaid "building material" that, according to the lien, had been furnished between August 25, 2000, and March 27, 2001. A satisfaction of the original lien and amended claim of lien, dated November 30, 2001, was filed December 5, 2001. The liens were satisfied, pursuant to the terms of a Settlement Stipulation, upon the Skieras' payment of $39,579.28 to Gulf Stream Lumber. L & W Supply's lien was recorded April 30, 2001. It was in the amount of $4,536.98, and it indicated, on its face, that it was for unpaid "building materials [and] related items" that had been furnished between December 16, 2000, and January 30, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. The lien was satisfied by the payment of $10.00 "and other good and valuable consideration" (which was the payment of an additional $2,850.00 by check dated October 11, 2001). Waste Management of Palm Beach's lien was recorded May 31, 2001. It was in the amount of $1,665.89, and it indicated, on its face, that it was for unpaid "[w]aste [r]emoval [s]ervices" that had been furnished between August 30, 2000, and April 5, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. B.T. Glass & Mirror's lien was recorded June 29, 2001. It was in the amount of $3,560.00, and it indicated, on its face, that it was for an unpaid "glass/mirror package" that had been furnished between May 3, 2001, and May 31, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. The lien was satisfied by the payment of $1,600.00 (by check dated November 10, 2001), plus an agreement to provide "$2,000.00 in gazebo or arbor products from the Hitching Post," the Skieras' family business. Boca Raton Decorating Center's lien was recorded May 19, 2001. It was in the amount of $1,218.79, and it indicated, on its face, that it was for unpaid "paint, sealers [and] sundries" that had been furnished between May 1, 2001, to May 2, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. American Stairs' lien was recorded August 16, 2001. It was in the amount of $4,188.00, and it indicated, on its face, that it was for unpaid "[s]tairs and [r]ailings" that had been furnished between June 8, 2001, and June 15, 2001. A satisfaction of this lien was executed on October 15, 2001. Broten Garage Door Sales' lien was recorded September 5, 2001. It was in the amount of $3,214.00, and it indicated, on its face, that it was for the unpaid "sale and installation of garage doors and openers," which took place between June 25, 2001, and July 17, 2001. A satisfaction of this lien, dated January 31, 2002, was filed on February 5, 2002. At a meeting "in the early part of August [2001]" attended by Respondent, Mr. Stasinos, the Skieras, and the president of the bank from which the Skieras had borrowed the money to pay for the construction of their residence, Respondent announced that, on behalf of ICC, "he was filing [for] bankruptcy."4 ICC stopped working on the Skiera Residence after this meeting. At the time, the Skiera Residence was approximately 70 to 80 percent completed (and the Skieras had paid ICC a total of $304,766.20, or approximately 80 percent of the total contract price (including change orders) of $378,286.205). In addition to paying $57,316.62 to satisfy the "eight valid claims of lien" referenced in the Parties' Stipulations, the Skieras paid approximately an additional $57,000.00 to other subcontractors who provided goods and/or services "needed to complete the house." The $10,000.00 check referred to in the Parties' Stipulation 14 (that the Skieras received from Andover Construction, Inc.) did not "represent any kind of final settlement" between the Skieras and ICC. The October 4, 2001, Certificate of Occupancy for the Skiera Residence referred to in the Parties' Stipulations indicated, on its face, that ICC was the contractor, notwithstanding that ICC had abandoned the project "in the early part of August [2001]." Respondent has been a Florida-licensed general contractor since July 29, 1987. In his capacity as ICC's licensed qualifier, he has previously (by Final Order filed in DBPR Case Nos. 2001-03283 and 2001-03284 on December 23, 2003) been found guilty of, and disciplined for, violating (in connection with two residential construction projects undertaken by ICC for A. Richard Nernberg) the same subsections of Section 489.129(1), Florida Statutes (Subsections (1)(g), (i), and (m)) that he is accused of violating in the instant case. In these prior disciplinary proceedings, Respondent's license was suspended for two years, and he was fined $6,000.00 and required to pay $958.30 in investigative costs. Administrative complaints were also filed against Respondent in DBPR Case Nos. 94-15958 and 97-17352. Both of these cases were resolved by settlement stipulations in which Respondent "neither admit[ted] [nor] denie[d] the allegations of fact contained in the [a]dministrative [c]omplaint[s]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: finding Respondent guilty of violating Section 489.1425(1), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and fining him $1,000.00 for this violation; (2) finding Respondent guilty of the violation of Section 489.129(1)(g)1., Florida Statutes, relating to Boca Concrete Pumping's December 6, 2000, $1,001.25 lien, alleged in Count II of the Amended Administrative Complaint, and taking the following disciplinary action against him for this violation: suspending his license for four years (with such suspension to run consecutively with his current suspension); (b) fining him $5,000.00; (c) requiring him to pay restitution in the amount of $1,001.25 to the Skieras; and (c) ordering him to reimburse the Department for all reasonable investigative and prosecutorial costs (excluding costs related to attorney time) incurred by the Department; and (3) dismissing all other charges in the Amended Administrative Complaint. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 May, 2007.
The Issue The issue posed for decision herein involves a determination of an appropriate penalty for Respondent's alleged violation of Section 489.127(1)(d), Florida Statutes, which prohibits the giving of false or forged evidence to the Board for the purpose of obtaining a certificate. At the outset of the final hearing, the parties entered into an oral stipulation which will be set forth hereinafter in detail.
Findings Of Fact Based upon my observation of Respondent, the arguments of counsel, the posthearing memorandum and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint signed July 1, 1982, Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based upon conduct set forth hereinafter. As stated, the below findings were admitted by Respondent in an oral stipulation read into the record compiled at the final hearing. Respondent is a registered residential contractor having been issued license number RR0040021. Respondent's last known address is 510 North Riverside Avenue, Edgewater, Florida, 32032. On August 13, 1981, Respondent applied to sit for the certified contractor's examination in order to become certified as a building contractor. As part of the application for the certified contractor's examination described above, Respondent provided a "certificate in support of applicant's experience qualifications," which was sworn and subscribed to by Charles R. Cook, a foreman for Edwin Peck, Jr., a certified general contractor. In the "certificate in support of applicant's experience qualification," Cook stated that Respondent occupied the position of superintendent or foreman for Edwin Peck, Jr., from February 4, 1978, until May 1, 1979. Respondent was employed by Edwin Peck, Jr., for two (2) weeks, working full-time and two (2) weeks working part-time in February of 1979, and for one (1) day in March of 1979. The affidavit of Mr. Cook was altered by Respondent. As part of the application for the certified contractor's examination described above, Respondent included a letter signed by Joseph R. Gober, President of Florida Sun Control Products, Inc. In the letter, Gober stated that Respondent was employed by Florida Sun Control Products, Inc., as a superintendent from May, 1977, through January, 1978. Respondent has never been employed by Florida Sun Control Products, Inc., as an employee; however, he did work with said company as an independent contractor, supervising construction activities. Respondent, while admitting the above facts, considers that a revocation of his certificate is not warranted under the circumstances. Respondent points to the fact that he has not sought any contracting job in the private or residential areas, turning instead only to commercial ventures. Further, Respondent notes that no one has been injured by his misdeeds and that he has benefited from his past mistakes as admitted in this cause. Respondent considers that the imposition of a small civil (administrative) fine is ample punishment for his acts in connection with the filing of his application for certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license number RR0040021 be placed on probation for a period of dine (1) year and that an administrative fine in the amount of $250.00 be imposed. RECOMMENDED this 2nd day of November, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 2nd day of November, 1982. COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 James Linnan, Executive Director Michael Wayne Scott Florida Construction Industry 510 North Riverside Drive Licensing Board Edgewater, Florida 32032 Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DPR Case No. 0021731 DOAH Case No. 82-2209 MICHAEL W. SCOTT, RR 0040021 N Michael W. Scott Construction, Inc. 501 North Riverside Avenue Edgewater, Florida 32032, Respondent. /
