The 2023 Florida Statutes
|
||||||
|
"Actual Damages" as used in Section 489.143(2), F.S., shall mean the general measure of damages suffered as a direct result of a licensee's violation of Section 489.129(1)(g), (j), (k), or 713.35, F.S., for failing to perform a construction contract. Actual Damages are calculated as the difference between the contract price, together with the change orders, and the cost of construction completion by another builder, where the cost of completion is for the same scope of work and materials set out in the original contract. However, if the claimant has paid a deposit or down payment and no actual work is performed or materials are delivered, actual damages shall not exceed the exact dollar amount of the deposit or down payment.
On August 19, 2019, the Department filed a dual-count administrative complaint against Rodriguez, alleging violations of sections 489.129(1)(i) and 489.129(1)(j), Florida Statutes. See § 489.129(1)(i), (j), Fla. Stat. (authorizing disciplinary action "if the contractor ... is found guilty of any of the following acts: ... (i) Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. (j) Abandoning a construction project in which the contractor is engaged or under contract as a contractor").
As discussed below, the fact that the Construction Industry Licensing Board has discretion to impose discipline for specified infractions, see § 489.129, Fla. Stat., does not negate the fact that the Secretary is tasked with investigating and prosecuting violations of relevant Florida law, including section 489.147.
(b) The judgment ... is based upon a violation of s. 489.129(1)(g), (j) [abandoning a construction project], or (k) or s. 713.35.
On cross-examination, Mr. Bishop testified that building permits for the project were obtained by an individual named Al Hancock (ECF No. 40, Ex. D at 228-30). He testified that Al Hancock is a Florida licensed general contractor (id. at 230). Mr. Bishop repeated that, for an unlicenced contractor to work under a licensed contractor, the licensed contractor must pay the unlicenced contractor and withhold employment taxes (id. at 232). He testified that he investigated Mr. Hancock's involvement in Ms. Griffin's project (id. at 233). Mr. Bishop testified that Mr. Hancock violated Florida's contracting laws by "aiding and abetting" Petitioner's contracting without a license (id. at 234). He testified that Hancock was charged with violating Florida Statutes § 489.129 (1) and (D) for performing any act which assists a person or entity in engaging in the prohibited unregistered and uncertified practice of contracting, and Hancock was fined for the violation (id.).
(Emphasis supplied). The ALJ found that section 489.129 "clearly indicates that the final order being addressed in subsection (7) is a final order issued by the CILB." While we do not disagree that the term "final order" in section 489.129( 7) refers to a final order of the CILB, we disagree that rule 61G4-12.017 is an invalid exercise of delegated legislative authority, because authority for this rule may be obtained from other subsections of section 489.129( 7). Subsection (1)(h) of section 489.129 grants the Board the power to deny issuance of a certification, registration, or the grant of a certification of authority when the applicant for such has been "disciplined by any municipality or county for an act or violation of this part." This subsection authorizes the Board to consider final orders imposed by other jurisdictions which discipline an applicant, such as the final order in the instant case. Further authority for the rule in question is provided by sections 489.129( 1)(b) and 489.129( 1)(q), which respectively give the Board authority to consider whether the applicant for licensure has been convicted of or pled…
The appellant filed an administrative complaint against Walker with the Department of Business and Professional Regulation. Walker violated the contract, thereby violating section 489.129(1)(G), (J), or (K), Florida Statutes. The Construction Industry Licensing Board revoked Walker's license and fined him. The Board also ordered Walker to pay $24,750 in restitution to Rodriguez.
We find no merit in the Appellant's contention that that license revocation was an excessively harsh punishment. Given the circumstances of this case, license revocation was within the permissible range of penalties for a violation of section 489.129(1)(q). See Fla. Admin. Code R. 61G4-17.001(1)(q)(2005).
More specifically, these facts would support the Board's findings that Nicks violated section 489.129( 1)(m) by committing incompetency or misconduct in the practice of contracting; violated section 489.129( 1)(n), Florida Statutes, by committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property; and, violated section 489.129( 1)(j), Florida Statutes, by abandoning a construction project by terminating the project without just cause. Nicks argues that even if he waived his right to contest the factual allegations of the administrative complaint, the Department was still required to prove those facts with competent, substantial evidence before it could take action against his license. In making this argument, Nicks cites to Scoff v. Dep't of Professional Regulation, 603 So.2d 519 (Fla. 1st DCA 1992). We reject Nicks' argument. When a party waives the right to challenge the factual allegations of an administrative complaint, either by requesting an informal hearing pursuant to section 120.57(2), Florida Statutes, or by failing to respond to the complaint at all, the facts of the complaint are deemed…
Section 489.129(1) authorizes disciplinary action (revocation or suspension of license) if the business organization for which the contractor is a primary qualifying agent (licensee) is found guilty of abandoning a construction project. Section 489.1195(1)(a) makes qualifying agents for a business organization jointly and equally responsible for supervision of all operations of the business organization including field work and financial matters.
. . . (b) The judgment ... is based upon a violation of s. 489.129(1)(g), (j) [abandoning a construction project . . .
. . . In pertinent part, this statute provides: 489.129 Disciplinary proceedings.— (7) The board shall not . . . The ALJ found that section 489.129 “clearly indicates that the final order being addressed in subsection . . . While we do not disagree that the term “final order” in section 489.129(7) refers to a final order of . . . Subsection (l)(h) of section 489.129 grants the Board the power to deny issuance of a certification, . . . Further authority for the rule in question is provided by sections 489.129(l)(b) and 489.129(l)(q), which . . .
. . . Walker violated the contract, thereby violating section 489.129(1)(G), (J), or (K), Florida Statutes. . . .
. . . Licensing Board (“Board”) filed an administrative complaint against the Appellant, pursuant to section 489.129 . . . At the hearing, the prosecutor presented evidence that the Appellant had four prior section 489.129 violations . . . Here, the Appellant was charged with violating section 489.129(l)(q), which authorizes the Board to revoke . . . this case, license revocation was within the permissible range of penalties for a violation of section 489.129 . . .
. . . on its finding of waiver, the Board also found that Nicks had violated various provisions of section 489.129 . . . More specifically, these facts would support the Board's findings that Nicks violated section 489.129 . . . (l)(m) by committing incompetency or misconduct in the practice of contracting; violated section 489.129 . . . negligence, or negligence resulting in a significant danger to life or property; and, violated section 489.129 . . . Section 489.129(1), Florida Statutes, provides that the Board may take disciplinary action, including . . .
. . . a final order directing the licensee to pay restitution to the claimant based on a violation of s. 489.129 . . . Section 489.129(1) authorizes disciplinary action (revocation or suspension of license) if the business . . . who obtain judgments in circumstances where the activities of the qualifying agent violate section 489.129 . . .
. . . The five-count complaint alleged that Mid-gett violated sections 489.129(l)(g)(2), (l)(j), (l)(m), and . . .
. . . substantial, competent evidence to find that Lapp violated either section 455.227(l)(j) or section 489.129 . . .
. . . See § 489.129(1)®, Fla. Stat. (1997). . . . See 489.129(1)(e), Fla. Stat. (1997). . . .
. . . the Construction Licensing Board requiring him to satisfy a judgment against him pursuant to section 489.129 . . . Section 489.129(l)(r) only requires proof that appellant, as a licensee or a qualified licensee for a . . .
. . . disciplinary proceeding, and his argument on appeal, is that he cannot be held accountable pursuant to section 489.129 . . . Section 489.129 does not carve out an exception for qualifying agents who fail to maintain control over . . .
. . . See § 489.129(l)(c), (e), (f), Fla. Stat. (Supp.1992). . . .
. . . Florida Construction Industry Licensing Board (Board), which found him guilty of violating section 489.129 . . . Accordingly, we affirm the final order which found him guilty of violating section 489.129(1)(n) and . . . Section 489.129(1) specifically authorizes the Board to “require financial restitution to a consumer” . . . The Department emphasizes that section 489.129(1)(r) of the applicable practice act does not require . . . the Board does not have the authority to require “restitution” to non-consumers pursuant to section 489.129 . . .
. . . First, Loeffler was charged with violating section 489.129(l)(g) by engaging in the business of contracting . . . Second, he was charged with violating section 489.129(1)© by failing to otherwise comply with the provisions . . . Finally, in count III Loeffler was charged with violating section 489.129(l)(r) “by failing to satisfy . . . Accordingly, Petitioner has failed to demonstrate that Respondent violated the provisions of Section 489.129 . . . decide otherwise would enable the Respondent to take advantage of (i.e., avoid culpability under § 489.129 . . .
. . . that the judgment obtained by Walsh against J.A.F. was based on a demonstrated violation of section 489.129 . . . The Board argues that the following language in section 489.129(l)(h)3., describing “financial mismanagement . . .
. . . Bowling’s state registration pursuant to section 489.129(l)(k), Florida Statutes (1993). . . . conclude, for several reasons,' that the legislature intended to impose civil penalties in section 489.129 . . . Third, section 489.129 creates a “disciplinary proceeding” rather than a criminal proceeding. . . . Thus, the legislature has clearly implied a preference to label the penalties in section 489.129 as civil . . . Similarly, the $5,000 fine does not render section 489.129 criminal. . . .
. . . Section 489.129(1)(r), Florida Statutes (Supp.1996), provides in pertinent part that revocation of a . . .
. . . license, the Department of Business and Professional Regulation charged him with violating section 489.129 . . . Section 489.129(l)(b), governing this proceeding, did not contain a similar provision in 1990, although . . .
. . . however, affirmed the dismissal of the remaining claims because it determined that sections 489.119 and 489.129 . . .
. . . However, this court has determined that neither sections 489.119 nor 489.129, the regulatory and penal . . .
. . . We agree with the trial court that neither sections 489.119 nor 489.129, Florida Statutes (1989), regulatory . . .
. . . .-129(l)(d) and 489.129(l)(m), Florida Statutes (1987). . . . These statutory provisions of section 489.129 authorize the Board to impose an appropriate disciplinary . . . Section 489.129(l)(m) does not define gross negligence. . . . . § 489.129(3), Fla.Stat. (1987). . . . Since section 489.129 allows the technician’s building code violations to be imputed to Mr. . . .
. . . At the time of the initiation of this administrative action, the following provision of section 489.129 . . . (1), Florida Statutes (1987), controlled: 489.129 Disciplinary proceedings.— (1) The board may revoke . . . More importantly, the following 1988 amendment to section 489.129 cannot be applied retroactively: (1 . . .
. . . We note that section 489.129(l)(f), Florida Statutes (1987), states that a license holder may be subject . . .
. . . Norris as a certified general contractor should be disciplined for violation of: 1) Section 489.129(l . . . Statutes, (1983), by aiding an unlicensed person to evade the requirements of Chapter 489; 2) Section 489.129 . . . Florida Statutes (1983), by failing to qualify a firm through which Respondent was acting; 4) Section 489.129 . . . hearing, the Department amended the Administrative Complaint to dismiss the violations of Sections 489.129 . . . Section 489.129(l)(f) prohibits a licensed contractor from knowingly combining or conspiring with an . . .
. . . Section 489.129(1) authorizes the Construction Industry Licensing Board (the Board) to impose sanctions . . . The Board found the appellant (Blume) guilty of the conduct proscribed in section 489.129(l)(e) and reprimanded . . . of Professional Regulation (the Department) alleging that Blume had violated, among others, section 489.129 . . . that Blume’s failure to verify whether Hahn had a license did not constitute a violation of section 489.129 . . . s exception to the hearing officer’s recommended report and found Blume guilty of violating section 489.129 . . .
. . . The specific authority cited for Rule 21E-12.08 as amended 12-19-82 is Section 455.227(2) and 489.129 . . . The hearing officer concluded that Section 489.129(3) authorizes the Board to specify by rule what acts . . . or omissions constitute violation of Section 489.129(1), which authorizes imposition of a $5,000.00 . . . discipline for ‘failure in any material respect to comply with the provisions of this act’ however, Section 489.129 . . . Section 489.129(l)(e), (j), (m) & (3) provides: The board may revoke, suspend, or deny the issuance or . . . I simply cannot agree with the hearing officer’s conclusion that “[sjection 489.129(1) ... does not specify . . . deny the issuance of a contractor’s certificate is a power specifically delegated to it by section 489.129 . . . Thus, upon reading sections 455.227(2) and 489.129(1) in pari materia, I would find that the board has . . .
. . . Rule 21E-12.08, Florida Administrative Code, cites as authority therefor Sections 455.227(2) and 489.129 . . . Section 489.129(1), Florida Statutes, authorizes the Board to impose an administrative fine not to exceed . . . Section 489.129(3), Florida Statutes, authorizes the Board to specify by rule the acts or omissions which . . . However, Section 489.129(1), Florida Statutes, does not specify that an administrative fine must be paid . . .
. . . .-127(l)(d), Florida Statutes, and thereby Section 489.129(l)(j), Florida Statutes. . . . Section 489.129(l)(j) allows the Board to revoke a contractor’s license for “failure in any material . . . violation of Section 489.127(l)(d) is not a material failure to comply within the meaning of Section 489.129 . . . determination that such activity amounts to a violation of Section 489.127(l)(d) and thereby Section 489.129 . . .
. . . that Hunter abandoned the Williams project because the corporation went out of business and section 489.129 . . . diverted funds from either project or abandoned the Williams project within the meaning of section 489.129 . . . SCHOONOVER and LEHAN, JJ., concur. . 489.129 Disciplinary proceedings.— (1) The board may revoke, suspend . . .
. . . against Kinast were commenced by a twelve-count administrative complaint alleging various violations of § 489.129 . . .
. . . Section 489.129, Florida Statutes (1979) enumerates the powers and duties of the State Construction Industry . . .
. . . In re Romero, 10 Cir. 1976, 535 F.2d 618, 621, so holds and the Florida statute (§ 489.129) is indistinguishable . . .