Stasinos v. State, Department of Business & Professional Regulation

209 So. 3d 18, 2016 Fla. App. LEXIS 15177
CourtDistrict Court of Appeal of Florida
DecidedOctober 13, 2016
DocketNo. 4D15-2506
StatusPublished
Cited by1 cases

This text of 209 So. 3d 18 (Stasinos v. State, Department of Business & Professional Regulation) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stasinos v. State, Department of Business & Professional Regulation, 209 So. 3d 18, 2016 Fla. App. LEXIS 15177 (Fla. Ct. App. 2016).

Opinion

SHEPHERD, FRANK, Associate Judge.

Christos Stasinos, a Florida licensed general contractor, appeals a final order of the Florida Department of Professional Regulation, Construction Industry Licensing Board, awarding a $50,000 restitution payment to Anthony and Danielle Guzzetta on their claim against the Florida Homeowners’ Construction Recovery Fund for Stasinos’ abandonment of his residential construction contract with the Guzzettas. Stasinos’ interest in the matter arises out of the fact that payment of the claim will result in an automatic suspension of his contracting license. See § 489.143(8), Fla. Stat. (2015).

Stasinos raises two challenges to the order of the Construction Industry Licensing Board: (1) the Board did not have jurisdiction to enter the order under review; (2) if it did have jurisdiction to enter the order, the claimants’ claim is nevertheless time-barred. Finding no merit to either challenge, we affirm the order of the Board.

[20]*20Procedural and Factual Background

The essential facts and procedural history of this case may be summarized as follows:

August 2005: Anthony and Danielle Guz-zetta entered into a contract with Andover Construction, Inc., to construct a new residence in Delray Beach, Florida. The final contract price for the project was $1,040,713.00. Christos Stasinos was the general contractor and qualifying agent1 for Andover Construction.

February 20, 2007: The Guzettas and And-over Construction entered into a letter agreement to resolve disputes concerning the work performed on the project. And-over Construction agreed to perform certain jobs to complete the project and to obtain a Certifícate of Occupancy (“CO”) by March 31, 2007 (or pay a $300 per day late fee for additional time to obtain the CO).

April 20, 2007: Andover Construction obtained the CO, but did not complete the work outlined in the letter agreement.

January 3, 2008: The Guzzettas sued Andover in the Palm Beach County Circuit Court to recover the additional expense incurred to complete the project and the late fee.

August 14, 2008: Andover countered with a bankruptcy filing in the United States Bankruptcy Court for the Southern District of Florida, staying the circuit court case.

June 26, 2009: The Bankruptcy Court granted the Guzzettas relief from the stay. Two and one-half weeks later, on July 14, 2009, the Bankruptcy Court ordered that the Guzzettas’ claim against Andover be allowed as a general unsecured claim in the amount of $32,000.

July 29, 2010: The Palm Beach County Circuit Court entered a final judgment against Andover in the sum of $73,923.69.

December 15, 2011: The Bankruptcy Court discharged Andover’s bankruptcy claim, concluding the case. The Guzzettas received nothing on their claim.

July 31, 2012: The Guzzettas filed a claim against the Florida Homeowners’ Construction Recovery Fund for recompense as a result of Andover’s abandonment of its construction contract.

January 14, 2014: The Construction Industry Licensing Board met to consider the Guzzettas’ claim. Stasinos was present and represented by counsel. The Guz-zettas were not present or represented by counsel. The Board denied the Guzzettas’ claim as untimely filed.

February 10, 2015: The Construction Industry Licensing Board rendered its decision by written final order.

March 12, 2015: The Guzzettas filed a Notice of Administrative Appeal of the written final order on the last day for filing with the Construction Industry Licensing Board. On the same day, the Guzzettas asked the Board to reconsider the written final order on the ground that they did not receive notice of the hearing.

March 18, 2015: The Guzzettas and the Board filed an Agreed Motion to Relinquish Jurisdiction to the Board for the purpose of reconsidering the final order. Stasinos was served with a copy of the motion and did not object.

March 27, 2015: This court granted the motion and relinquished jurisdiction to the Board for a period of sixty days for the [21]*21purpose of reconsidering the written final order.

May 13, 2015: With all parties and counsel present, the Board vacated its prior order, finding the Guzzettas’ claim to be timely filed, and awarded the Guzzettas $50,000 from the Recovery Fund.

May 14, 2015: The Guzzettas filed a Notice of Voluntary Dismissal Without Prejudice of their appeal pending before this court.

June 8, 2015: The Board rendered its written Order Vacating Prior Final Order and Granting Reconsideration.

June 29, 2015: Stasinos filed a Notice of Administrative Appeal of this order.

Standard of Review

Section 120.68, Florida Statutes, governs appellate review of final administrative agency action under the Florida Administrative Procedure Act. The inquiry on appeal is generally whether the final order is supported by competent, substantial evidence in the record. § 120.68(7)(b), Fla. Stat. (2015); Dep’t of Banking & Fin., Div. of Sec. & Inv’r Prot. v. Osborne Stern & Co., 670 So.2d 932, 933 (Fla.1996); Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982, 987 (Fla.1996). If so supported, this court must affirm the final order unless there is a demonstration of a material error in procedure, an incorrect interpretation of law, or an abuse of discretion. §§ 120.68(7)(c)-(e), (8).

Analysis

A. The Construction Industry Licensing Board had jurisdiction to reconsider and vacate its prior final order.

Stasinos first argues that the Construction Industry Licensing Board lacked jurisdiction or authority to vacate or modify its prior final order. We disagree.

It is true that neither the Florida Administrative Procedure Act nor any rule of procedure provides for the filing of a motion for rehearing of final agency action. See § 120.68(1)-(2)(a); Sys. Mgmt. Assocs., Inc. v. Dep’t of Health & Rehab. Servs., 391 So.2d 688, 691 (Fla. 1st DCA 1980) (“Final agency action is reviewable only by appeal.”). However, “where the proceeding is in essence a judicial one,” an agency whose final orders are subject to review under the Florida Administrative Procedure Act “has the inherent or implied power to rehear or reopen a cause to reconsider the action taken therein.” Reich v. Dep’t of Health, 868 So.2d 1275, 1276 (Fla. 1st DCA 2004), (citing Smull v. Town of Jupiter, 854 So.2d 780, 782 (Fla. 4th DCA 2003)). “[T]his power must be exercised before an appeal from the original order has been filed or before such an order has become final by the lapse of time to file a timely notice of appeal.” Id. Here, the Guzzettas filed their request with the Department to vacate the prior final order on the same day they filed their timely notice of appeal from that order. The request indicates they had “previously discussed” the “reasons” for their request with the Department, Thereafter, upon the Guz-zettas’ and the Board’s agreed motion, this court relinquished jurisdiction to the Board for sixty days to reconsider the order. We conclude the request filed by the homeowners in this case satisfies the timeliness requirement.

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Bluebook (online)
209 So. 3d 18, 2016 Fla. App. LEXIS 15177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stasinos-v-state-department-of-business-professional-regulation-fladistctapp-2016.