Nicks v. Dept. of Business and Prof. Reg.

• Citation: 957 So.2d 65
• Decision Date: 04 May 2007
• Docket Number: No. 5D06-1927.,5D06-1927.
• Parties: Carl Thomas NICKS, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, ETC., Appellee.
• Court: Florida District Court of Appeals

957 So.2d 65

Carl Thomas NICKS, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, ETC., Appellee.

No. 5D06-1927.

District Court of Appeal of Florida, Fifth District.

May 4, 2007.

Diane S. Perera and James C. Kellner, of Diane S. Perera, P.A., Miami, for Appellant.

Jennifer A. Tschetter, Tallahassee, for Appellee.

LAWSON, J.

Carl Thomas Nicks appeals from a final administrative order of the Construction Industry Licensing Board. The order granted the Department of Business and Professional Regulation's motion to find that Nicks had waived his right to dispute the material facts alleged in the Department's complaint against him by failing to request a formal hearing within twenty-one days after receiving the complaint. Relying on its finding of waiver, the Board also found that Nicks had violated various provisions of section 489.129, Florida Statutes, and revoked Nicks' license as a certified general contractor. We agree with Nicks that the doctrine of equitable tolling may apply in this case to preclude a finding of waiver. Therefore, we reverse the final order and remand this case to the Board for further proceedings consistent with this opinion.

The facts underlying the Department's complaint relate to a roofing job that Nicks contracted to perform on a commercial building in West Melbourne, Florida, on October 6, 2004. The Department alleges that Nicks completed about fifty percent of the roof in an incompetent and negligent manner, laying roofing material over wet substrate and rotting boards. When city inspectors ordered that the roof be stripped, and all roofing materials re-installed on dry substrate, it is alleged that Nicks refused to refund the $15,000 he had already been paid, refused to continue work unless he was paid for the additional work required to correct his own substandard performance, and then abandoned the job when the owner would not agree to pay him more money to fix his own mistakes. Thereafter, according to the complaint, Nicks ignored the owner's numerous efforts to reach him. If true, these facts would support the disciplinary action ordered by the Board,¹ particularly in light of Nicks' disciplinary history.² Nicks, however, disputes the facts alleged by the Department.

On February 11, 2005, the Department notified Nicks that it had received a complaint regarding the roofing job, and that he had a right to provide information in response. The notice also explained that the investigation would remain confidential unless probable cause was found to pursue an administrative action against Nicks' license. In response, on February 18, 2005, Nicks sent the Department documents indicating his view that the matter was nothing more than a dispute over the scope of work required by his contract. According to Nicks, his contract only required that he replace a limited number of insulation boards. When the inspector ordered that all insulation boards be replaced, he told the owner that this would increase the scope of work, which would require additional consideration. According to Nicks, he remained ready and willing at all times to strip and replace the roofing, and finish the job, if the owner would agree to compensate him for the additional insulation replacement that was not part of his original contract price.

On August 25, 2005, the Department served Nicks with its administrative complaint, along with a form cover letter and election of rights form. The cover letter explained that Nicks had three options: (1) chose not to dispute the facts alleged in the complaint, and request a hearing to present evidence only related to "conclusions of law and the penalty for violation;" (2) dispute the alleged facts "and request a hearing before an administrative law judge;" or (3) waive the right to either type of hearing "and put yourself completely at the Board's discretion." The letter then explained that:

You must respond by selecting one of the options on the enclosed Election of Rights form, and forwarding the executed Election of Rights form to this office within 21 days of your receipt of this letter. Failure to respond within the 21 day period may be deemed a waiver of the rights outlined above, and the Department may proceed against you by default. (emphasis in original)

It is undisputed that Nicks did not return the election of rights form. However, Nicks claims to have called the Department on September 7, 2005, within the twenty-one day period, to inquire as to whether his prior written submission to the investigator would serve as a sufficient response to contest the facts of the complaint. According to Nicks, a Department employee told him that the documents submitted during the investigation would suffice, and that he therefore did not need to return the election of rights form in order to contest the facts alleged in the complaint. Claiming reliance on this advice from...