Part 1 – The Initial Complaint and Investigation Phase
Many Florida contractors and license holders have a general understanding of the Florida Construction Industry Licensing Board (“CILB”), but like many quasi-judicial bodies, it can remain a mystery to those who appear in front of the CILB. Part 1 of this multipart blog post will cover some specific information regarding the initial phases of contractor discipline in Florida.
In Florida, contractor discipline is managed by the Construction Industry Licensing Board (CILB) under the Department of Business and Professional Regulation (DBPR) pursuant to Florida Statute Chapter 489. Think of it this way – The DBPR is the prosecutor of the offense and the CILB is the quasi-judicial board that will act as the judge. The license holder is and frankly should have counsel present at all CILB proceedings.
Contractor discipline commences when a person files a complaint with the DBPR alleging some form of misconduct by the Florida licensed contractor. To do so, the person must fill out the complaint form that is promulgated by the Office of Inspector General. The complaint can be filled out online or in PDF form and mailed to the DBPR. The person filing the complaint is required to affirm that the allegations are truthful. They are encouraged to attach contracts, invoices, payment documents, and other information that would support the allegations.
Once received and under Chapter 455.225, the DBPR will commence a review of the complaint to determine if the complaint is legally sufficient. A complaint is legally sufficient if it contains ultimate facts that show that a violation of Chapter 489 may have occurred. The department may investigate, and the department or the appropriate board may take appropriate final action on a complaint even though the original complainant withdraws it or otherwise indicates a their desire to not want the complaint investigated or prosecuted to completion.
When an investigation of any contractor is undertaken, the DBPR shall promptly furnish to the contractor or their attorney a copy of the complaint or document that resulted in the initiation of the investigation. Do not ignore this initial letter from the investigator. The contractor may submit a written response to the information contained in the complaint within 20 days after service. In my experience, the investigators are more than happy to agree to extensions of time to allow a response.
As a licensed contractor – you should NEVER respond on your own behalf. You may be thinking that you are doing the right thing but what you say can and will be used against you. I have seen many well drafted responses that only result in additional charges against the contractor.
The contractor’s written response shall be considered by the probable cause panel. When its investigation is complete and legally sufficient, the DBPR will prepare and submit to the probable cause panel of the appropriate regulatory board its investigative report. The report shall contain the investigative findings and the recommendations of the DBPR concerning the existence of probable cause. Sometimes, probable cause can be waived, can be determined by the DBPR inhouse or will be determined by the CILB probable cause panel. The determination as to whether probable cause exists shall be made by majority vote of a probable cause panel of the board, or by the DBPR, as appropriate. If the probable cause panel finds that probable cause exists, it shall direct the DBPR to file a formal administrative complaint against the licensee.
Retention of counsel familiar with construction licensing at this stage is critical. The next segment of this blog post will discuss what happens with the Administrative Complaint if filed after the determination of probable cause.