A recent court decision describes how a licensed contractor in Florida can have a punishment imposed without a hearing by the DBPR reversed and re-examined, particularly where the contractor challenges whether he or she received proper notice. The opinion also describes the steps required to establish proper service by the DBPR on a contract.
In Rodriguez v. Department of Business and Professional Regulation, a general contractor appealed the imposition of probation and fines by the DBPR. The initial complaint to the DBPR arose when the contractor stopped work on a project following a dispute with the homeowner. The homeowner then filed a complaint with the DBPR alleging that the contractor abandoned the project.
The DBPR sent notice of the complaint to the contractor by certified mail, regular mail, and email. When the certified mail was unclaimed, the DBPR called the contractor at his last known phone number, posted a notice on its website, and emailed local newspapers and broadcast affiliates. After the contractor failed to respond, the DBPR found that he had waived his right to respond to the allegations of the complaint, and placed him on probation and assessed fines and restitution.
On appeal, the court looked at two issues to determine if the penalties imposed by the DBPR should be reversed. First, the court looked at the methods of service of process used by the DBPR on the contractor and determined that when looked at in total, the DBPR’s efforts were sufficient to give due process to the contractor.
Second, the court looked at whether the contractor’s stated defense of equitable tolling. While the court offered little discussion of the specific facts supporting the contractor’s claims of equitable tolling, the court found that it needed to reverse the DBPR’s decision for the limited purpose of allowing it to conduct a full evidentiary hearing on the contractor’s claims relating to equitable tolling. Alternatively, the court said the DBPR could accept the contractor’s claims of equitable tolling, withdraw the penalties, and conduct a full hearing on the abandonment claims raised by the homeowners.
Before diving into the key takeaways from this case, I want to briefly explain what equitable tolling is. Equitable tolling is the concept that strict time limits (such as response deadlines or statutes of limitation) should not be imposed where it would be unfair to person subject to those limits through no fault of their own and where the party benefiting from the limit would not be prejudiced by extending it. Vagueness or deficiencies in a complaint, or comments by DBPR employees that prior phone calls or responses are circumstances where courts have determined equitable tolling should be applied.
The main takeaway from this case should be that the DBPR does make extensive efforts to contact contractors about licensing complaints, and contractors should pay attention to these and not ignore them. But where extreme circumstances exist, contractors may be able to seek reversal of penalties even if the contractor failed to respond to the complaint. Contractors should consult with an attorney to determine if equitable tolling is applicable to their situation.