STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-811

)

DAVID KNIGHT D/B/A ) KNIGHT'S CONSTRUCTION COMPANY )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Tallahassee, Florida, on June 30, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Augustus D. Aikens, Jr., Esquire

449 West Carolina Street Tallahassee, Florida 32301

ISSUE PRESENTED

Whether disciplinary action should be taken against respondent as a result of disciplinary action against him by Madison County, Florida.

FINDINGS OF FACT

1. Respondent is now and was at the times alleged in the administrative complaint a registered general contractor, License No. RG 0007907. His registration includes Madison, Leon, and Taylor Counties. (Petitioner's Exhibit 7, Stipulation)

   
   

2. On October 28, 1975, respondent entered into an agreement with the Mt. Zion AME Church, Madison, Florida, to finish the construction of a church for the sum of $57,975.00. The job was to be completed within seventy (70) working days and included various items such as carpeting, stained glass windows, light fixtures, and vinyl floor covering to be furnished by the contractor. (Petitioner's Exhibit 6)

   
   

3. At the time respondent commenced work, the church building had been partially completed to include walls and roof. There was an old church building immediately adjacent to the new church which the church officials orally promised to have removed. This was not accomplished for approximately two

   months and this caused delayed completion of the contract work. (Testimony of Knight)

   
   

4. During the course of contract performance, the pastor of the church informed respondent that certain changes in the work were desired. These included addition of two more outside doors at a cost of $1,200.00, changing the direction in which four outside doors swung at a cost of some $800.00, movement of a wall at a cost of $1,500.00, addition of flower pots for $300.00, and insulation work and materials at $800.00 to $1,200.00 dollars. Additionally, the church officials ordered more expensive carpet than had been called for under the contract and imposed an additional requirement of placing windows in the wing of the church. As a result, the total cost of performance escalated to over $69,000.00, of which sum the church paid respondent only some $43,000.00. (Petitioner's Exhibit 4, Testimony of Knight)

   
   

5. In view of the insufficient funds furnished to the respondent by the church, a number of subcontractors' bills could not be paid. Several of these firms complained to Paul B. Williamson, Madison County Building Inspector. He was the first such official appointed in Madison County and, as a result, was just setting up inspection programs and procedures at the time. Williamson did not contact respondent personally concerning the alleged unpaid debts but, by letter of June 15, 1976, ordered him to "show cause" before July 7, 1976, as to why his county contractor's license should not be revoked for unwarranted cost overruns, failure to make financial settlement with subcontractors and permitting accumulation of liabilities of labor and material costs on the church project. In response to this letter, respondent provided Williamson with a copy of his letter, dated June 29, 1976, to the Mount Zion AME Church, which included a financial report and justification for cost overruns in excess of the contract price. Subsequently, at a church board meeting that Williamson and respondent both attended, the latter explained the reasons for the higher costs than originally contemplated, but was of the opinion that the matter could be straightened out within thirty days. About sixty days thereafter, the church was completed and Williamson approved it, except for an air conditioning problem. (Petitioner's Exhibits 2, 4, Testimony of Knight, Williamson)

   
   

6. Williamson was under the impression that there was no written contract on the project. The only documentation he had concerning agreed and actual costs was the copy of the financial report respondent had provided him, and several bills of subcontractors, plus oral statements he had heard from various church members. Without further pursuing the matter to verify respondent's claims as to extra work and the agreed and actual costs involved, Williamson, by letter of August 16, 1976, revoked respondent's county license on four specified grounds, two of which had not been noted in his June 15 letter to show cause. The additional grounds were unsatisfactory workmanship and failure to provide adequate supervision for construction. The other two grounds dealt with irregularities in administering funds provided by the church and lack of agreements with the church on extra work performed. All of the grounds were set forth in general terms only and did not specify details of respondent's alleged derelictions. Williamson conceded at the hearing that the building was satisfactory except for minor details, and respondent's assistants on the job testified that respondent properly supervised the work. Although Williamson purported to take his revocation action "according to powers vested in me as chief building official of Madison County," no evidence was presented as to the extent of his authority to take such actions or the existence of any specified grounds therefor in any county ordinance or building code. (Testimony of Williamson, Austin, Waiters, Petitioner's Exhibit I)

7. In view of the preceding findings, it is further found that the evidence fails to show that the revocation of respondent's county license by Madison County was either authorized or warranted under the circumstances.

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner seeks to revoke respondent's general contractor's license based on the authority of subsection 468.12(2)(f), Florida Statutes, which reads as follows:

   
   

   468.12 Revocation or suspension of certificate or registration.

   (2) The following acts constitute cause for disciplinary action:

   (f) Disciplinary action by any municipality, city, or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

   
   

9. The contemplated state disciplinary action is based on respondent's license revocation in Madison County for alleged irregularities in performance of his contract to construct the Mount Zion AME Church. The statutory ground for such action cannot be utilized merely because a local public authority has taken disciplinary action itself. The statute requires that the local action be "reviewed" prior to any state action. A "review" necessarily encompasses both the procedural and substantive aspects of the proceedings by which a contractor was disciplined by local governmental authority.

   
   

10. In the instant case, the evidence fails to establish any authority of the local building official to take disciplinary action or to reveal any authorized grounds for the same. Consequently, it is impossible to determine whether or not such action was taken in accordance with local law. Further, there was no showing that any procedures had been established with respect to such disciplinary actions nor was respondent provided with any sort of a hearing before his county license was revoked.

    
    

11. Aside from the lack of stated legal authority for local disciplinary action and failure to provided procedural due process, the evidence presented at the hearing herein failed to show a substantive basis for the action. As heretofore found, respondent's uncontradicted testimony concerning extra work performed for which he was not compensated by the Mount Zion AME Church refutes the petitioner's allegations that he failed unjustifiably to compensate subcontractors for their work. Insufficient evidence was presented to justify disciplinary action of any nature.

In view of the foregoing, it is recommended that the complaint be dismissed and that no disciplinary action be taken by petitioner.

RECOMMENDATIONS

That the complaint against respondent David Knight, d/b/a Knight Construction Company, be dismissed.

DONE and ENTERED this 26th day of July, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

Augustus D. Aikens, Jr., Esquire

449 West Carolina Street Tallahassee, Florida 32301

Docket for Case No: 77-000811

Orders for Case No: 77-000811