STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, | ) ) ) | ||
) | |||
Petitioner, | ) | ||
) | |||
vs. | ) Case | No. | 85-0714 |
) | 85-3393 | ||
ROGER L. IRVEN, | ) | 85-4216 | |
) | 85-4246 | ||
) | |||
Respondent. | ) | ||
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, W. Matthew Stevenson, held a formal hearing in this case on January 27 and 28, 1986, in Orlando, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Errol H. Powell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Stewart G. Green, Esquire
712 East Washington Street Orlando, Florida 32801
The issues for determination at the final hearing were whether Respondent violated the construction industry licensing law, by:
obtaining a certificate by fraud or misrepresentation;
diverting funds from a specified project in which in which he was a contractor;
making fraudulent or misleading representations relating to his practice as a contractor;
being guilty of fraud, deceit, gross negligence, incompetence or misconduct in his practice as a contractor or in contracting;
abandoning a construction project in which he was engaged or under contract as a contractor;
willfully or deliberately disregarding and violating applicable building codes or laws of the state or municipalities or counties thereof; and
failing to subcontract electrical work on a project. PROCEDURAL BACKGROUND
The Petitioner filed four-(4) separate Administrative Complaints on January 16, 1984, July 23, 1985, August 20, 1985 and September 24, 1985. The Respondent disputed the factual allegations in each Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. By joint agreement between the parties, and with the consent of the undersigned, the Administrative Complaints were consolidated for final hearing.
At the final hearing, Petitioner presented the testimony of nine (9) witnesses. In addition, Petitioner's Exhibits 1-6, and 8-29 were duly offered and admitted into evidence. Ruling was reserved on Petitioner's Exhibit 30. After due consideration, Petitioner's Exhibit 30 is admitted and received into evidence. The Respondent presented the testimony of one (1) witness. In addition, Respondent's Exhibits 1, 2, 4-15, 17 and 18 were duly offered and admitted into evidence.
On February 21, 1986, the Petitioner submitted copies of certain sections of the Seminole County Building Code which were referred to in sworn testimony by one of the witnesses at the hearing. By letter dated February 24, 1986, the Respondent objected to any consideration of the documents because they were not offered into evidence at the formal hearing. The objection of the Respondent is sustained and the certified copy of the Seminole County Building Code will not be made a part of the record nor considered as evidence. The Petitioner submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the
entire record compiled herein, I hereby make the following findings of fact:
The Respondent, Roger L. Irven, is a certified general contractor holding license number CG C027873. At all time material hereto, Respondent was licensed as a certified general contractor, doing business as Irven Construction Company.
DOAH CASE NUMBER 85-0714
On about June 25, 1978, Respondent pled guilty and was adjudged guilty of the felony offense of wanton endangerment in the Circuit Court of Oldham County, Kentucky.
On July 25, 1978, the Respondent was sentenced to three
(3) years probation by the Oldham County Circuit Court. The Respondent was represented by counsel.
Respondent was placed on probation with certain conditions. One of the conditions was that the Respondent receive treatment in the infirmary for his epileptic condition.
The Court ordered that the Respondent be hospitalized for four (4) months in the prison infirmary.
The Department of Professional Regulation, Construction Industry Licensing Board received applications from the Respondent to take the certified contractor's examination on December 16, 1982, April 1, 1983, August 17, 1983 and December 7, 1983. On each application, Respondent answered in the negative indicating that he had never been convicted of any offenses in this state, or elsewhere, other than a traffic violation.
Respondent took the Certified Contractor's Examination four (4) times. Respondent passed the examination on the fourth attempt. On March 14, 1984, Respondent was licensed as a certified general contractor.
DOAH CASE NUMBER 85-3393
On November 1, 1984, the Respondent contracted with Kathy and Larry Evans, 5746 Wingate Drive, Orlando, Florida, to remodel their home at a cost of $6,700.00. On November 5, 1984, the Evans' paid Irven Construction $3,350.00 towards the contract price.
The specifications for the remodeling work were prepared by Irven Construction. Mr. Evans was told by the salesman for Irven Construction that the remodeling would commence within fifteen (15) days of signing the contract and be completed within
forty-five (45) days of the commencement, which amounted to sixty
(60) days for total completion after signing the contract.
No work was performed on the Evans project until December 19 or 20, 1984, when the windows were put in. The air conditioning duct work and heating elements were put in and the old oil furnace was removed. Respondent informed the Evanses that no work was done before this because he was ill.
On January 3, 1985 Irven Construction entered into a contract with Central Air, Heating and Cooling, Inc. to perform air conditioning and heating work on the Evans' home at a cost of
$3,195.
A few days after entering into the contract, Central Air & Heating completed only the rough-in of the contracted work. The rough-in consisted of the installation of the heating and air conditioning ducts and the furnace installation, but not the installation of the condensing unit.
Central Air & Heating was given cheeks for $1,278 by Irven Construction for the rough-in work it had completed. The checks were deposited by Central Air & Heating in its bank account, but were returned because insufficient funds were on deposit to cover them. Central Air & Heating notified Irven Construction about the returned checks; the Respondent stated that he would submit another check, but failed to do so.
Because it was not paid by Irven Construction, Central Air & Heating sent a Notice to Owner to the Evanses. The Evanses also received a Notice to Owner from Window Works, Inc. for custom windows which had been ordered by Irven Construction, but never paid for.
Window Works filed a lien for $600 against the Evans t property due to it not being paid for the custom windows. Subsequently, the Evanses were sued in civil court by Window Works for the amount owed under the lien. The Evanses were required to pay Window Works the amount owed plus other costs, totaling $1,800.
Window Works was not paid because Respondent gave the money to one of his salesmen to buy the windows. The salesman, Nr. Renfuller, kept the money and put the windows on credit.
At the time that Respondent wrote the check to Central Air & Heating, Respondent thought that there was enough money in his account to cover it.
Nothing was done on the Evans project in accordance with the contract after the rough-in by Central Air & Heating. At the time of the cessation of the work, the Evans job was 60% complete and the value of the work completed was approximately
$3,400.
On December 12, 1984, Respondent contracted with Irving Bernstein, 1018 Matchlock Drive, Orlando, Florida, to build an enclosed porch for a price of $2,000. The Bernsteins discussed the completion date of the contract with the Respondent and his brother, Richard Irven. Bernstein was told that the remodeling would commence three (3) days after Irven Construction obtained the permit for the work and that the work would be completed within seven (7) days after that.
Bernstein paid Irven $100 at the time of signing the contract. Before signing the contract, Respondent informed Bernstein that several sub-contractors were available to start the remodeling, and, that construction could start as soon as the contract was signed.
After signing the contract, no one immediately appeared from Irven Construction to perform the remodeling. Bernstein made several calls to Respondent and left several messages, seeking to obtain information as to when someone was coming to begin the remodeling work. When Bernstein spoke with the Respondent, the Respondent informed him that he had to obtain three (3) bids.
On January 2, 1985, Bernstein paid Irven Construction
$975.00, making his total payment $1,075.
Respondent obtained the building permit for the Bernstein project on January 9, 1985.
At the end of January, 1985, Respondent and his son arrived at the Bernstein residence to start the remodeling job. Respondent and his son worked approximately three (3) hours that day, putting in 2 x 4's around the sides. The following day, Respondent's brother and son worked on the project for approximately three (3) hours, removing some tiles off of the roof and the side molding from the house. When they left they stated that they would return the following Monday: however, no one came that Monday.
That Monday morning, Bernstein called Irven Construction and spoke with Respondent's brother, Richard Irven. Respondent's brother informed Bernstein that Respondent had a bad back and that completion of the job would be delayed. Bernstein
requested the return of his money, but no money was ever returned by Irven Construction.
On February 21, 1984, Respondent wrote a letter to Bernstein indicating that he wanted off of the job since it appeared to him that Bernstein did not want him to finish. At the time of the cessation of work by Irven Construction, appoximately 50% of the work had en completed. Both Respondent and Bernstein believed that there was a breach of contract by the other.
Bernstein contracted with another contractor, Mark Spires Construction Company, to perform the remodeling work. Bernstein's contract with Mark Spires involved more work than the contract with Respondent. Bernstein's contract with Respondent was for a simple porch close-in with no substantial roofing work. Spires Construction Company re-leveled the beams and reconstructed the 2 x 4's of the framework.
To effectuate the two (2) walls envisioned by the contract of Respondent, the existing beams were to be utilized. The only thing that Respondent had to do was to tie into the existing house. The Respondent took off the top row of tiles on the roof so he could tie it in. The only improvements Respondent made to the existing roof was "ducking and drying-in".
On January 14, 1985, Sam Ross entered into a contract with Irven Construction, to remodel his home's porch, at a cost of $1,550. Ross chose Irven Construction because Irven Construction had contracted to remodel the porch of his neighbor, Nr. Bernstein, and the cost of the Bernstein job sounded reasonable. Ross was informed by Irven Construction that they would be working on both his job and Bernstein's job at the same time. At the time of signing the contract, Ross paid Respondent
$775.
Ross discussed the commencement and completion of the project with Respondent's brother, Richard Irven. Ross was told that the work would commence within ten (10) days of the signing of the contract and would take about five (5) days thereafter for total completion. Irven Construction delivered some supplies to his home at the same time supplies were delivered to the Bernstein project site.
Because commencement of work on the project was slow, Ross called Irven Construction numerous times concerning the work on his home. Respondent eventually assigned an individual named Nark Withlow to perform work on the Ross project. However, Ross did not want Withlow to work on the job because Ross felt that a
certified carpenter was needed; Mark Withlow was qualified as a remodeler.
Thereafter, Ross refused to allow anyone from Irven Construction to work on his home because of his dissatisfaction with Mark Withlow's assignment to his job and because he discovered the problems that Bernstein and Respondent were having. Ross requested the return of his money from Respondent. Respondent offered, by letter dated February 21, 1985, to refund
$513. Ross did not respond to Respondent's letter because he wanted a full refund and felt that Respondent's offer was "ridiculous."
Ross later contracted with Mark Spires Construction to perform the remodeling work, which was eventually completed. The materials left at the-project site were used by Mark Spires Construction. The value of the goods and materials which were delivered to and remained at the Ross project was between $50 and
$80.00. Ross sued Irven Construction in civil court and obtained a judgment for the full amount he paid Respondent, plus court costs.
Respondent was involved in an automobile accident on July 3, 1984. As a result of the accident, Respondent suffered severe head, shoulder and back injuries.
In November of 1984, Respondent was hospitalized with a "trimmed disc"; in January, 1985, Respondent briefly returned to active participation in the business but reinjured his back while working on the Bernstein project. After the July 1984 accident Respondent provided little or no control or supervision to his business and was bed-ridden frequently from July 1984 to March, 1985. In addition, the automobile accident caused Respondent's seizures to return. Respondent has suffered from a seizure disorder, i.e. epilepsy, since 1975. Respondent was seizure free from 1979 to 1983. The type of seizure that the Respondent suffers from affects his memory and decision making and may last for several days following a seizure activity.
Since the accident in July, 1984, Respondent has been taking medication for his back pain, i.e. Darvocet, and medication for his seizures, i.e. Tegretol, 200 mg.
From August 29, 1984 to March, 1985, Respondent was having heavy seizure activity and frequented the Epileptic Foundation of Orlando for treatment at least once a month or every six weeks. He was advised by the Foundation to always take his medication and to be with someone. During the same period, he was treated by a Dr. Litchfield, a chiropractor, at least two to three times a week. The Respondent's ability to give
effective directions or make decisions was impaired due to his physical problems from August 1984 to March 1985.
In August or September, 1984, Davis Chaffee began working with Respondent as a salesman. After about ten (10) days to two (2) weeks as a salesman, Respondent allowed Chaffee to run the business due to the Respondent being bedridden most of the time and not being able to function as a result of the accident of July, 1984.
Davis Chaffee had no construction background; his experience was in sales and business administration. To assist Chaffee in running the business, Respondent prepared an outline which included a basic scale for bids.
James NcCall served as the superintendent for Irven Construction. Respondent felt that NcCall was competent to be superintendent as long as he was supervised by Respondent. After Respondent's accident of July, 1984, McCall handled all the construction aspects of the business including overall supervision of the project. McCall continued as the superintendent on the jobs, handled bids and proposals and dealt with the prints, materials and subcontractors for all the jobs. Despite Respondent's reservations about McCall's abilities, McCall was allowed to literally "run the business" because of Respondent's physical problems.
Davis Chaffee had the authority to approve contracts and prepare bids without consulting McCall. Chaffee was fired by Respondent in December, 1984.
DOAH CASE NUMBER 85-4216
On September 27, 1984 Respondent contracted with Richard Loman to build an addition to Loman's residence at 783 Formosa Drive, Winter Park, Florida at a cost of approximately
$20,000. Loman and Respondent discussed the commencement and completion date of the remodeling and Loman was told that the project would be completed within 45 days from approval of the plans and the signing of the contract. Loman paid Irven Construction $10,000 as a deposit, $500.00 on September 24, 1984 and $9,500 on October 2, 1984. In addition, Irven Construction received a contractor's draw of $3,333 on October 23, 1984 and
$3,333 on November 5, 1984.
As of November 5, 1984, the drywall, insulation, fixtures, toilet, vanity, heat and air, and the hot water heater remained to be completed.
On January 16, 1985, the contract price was increased another $1,000 for additional electrical work which was requested by Loman.
The work on the remodeling was progressing slowly and Loman repeatedly called Respondent to get someone out to complete the remodeling. Respondent repeatedly promised to send someone to complete the work. In February, 1985, a drywall person came out and completed the drywall.
Loman received a letter dated February 1, 1985 from the Respondent. The letter indicated, among other things, that the Respondent was physically ill but had all intentions of complying with the contract and completing the remodeling and that he had a contractor who would contact Loman to arrange to complete the remodeling.
Since the drywall person completed his work in February, 1985, no one has gone to the Loman's residence to complete the remodeling. No contractor has contacted Loman to arrange for the completion of the project and no money has been returned to Loman. At the time Irven Construction stopped work- on the Loman project, it was about 90% complete. Loman completed the job himself on June 1, 1985.
Loman received, by certified mail, liens from Tillman's Plumbing and Jackson Drywall Service for the remodeling work done on his home under the contract with Respondent. Tillman's lien was $360 and Jackson Drywall's lien was $1,350.
DOAH CASE NUMBER 85-4246
On August 29, 1985, Irven Construction entered into a contract with Stephen Dubin and his wife to remodel their family/living room at a cost of $7,200. In accordance with the modified specifications, electrical lights and an electrical fan were installed.
James McCall, Respondent's superintendent completed most, if not all, of the electrical work. The project was completed and Irven Construction was paid in full.
The Seminole County Building Department's records show that a building permit for the Dubin project was applied for, approved, and assigned a permit number, but never issued because it was not picked up. The Building Department's records also showed that no electrical permit was applied for. Respondent was required by the Seminole County Building Code to obtain a building permit before commencing the remodeling. After a building permit is issued, periodic inspections of the project site are required. Without a building permit, there are no inspections by the Building Department.
During this period, the Respondent was having personal problems with the employee that was responsible for picking up the permit. The Respondent was unaware that the employee had failed to properly perform his duties by picking up the permit.
Respondent was ill during this period and had very little input into the Dubin project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, these proceedings. Section 120.57(1), Florida Statutes. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, as they relate to the imposition of licensure standards and standards for the conduct of business in the construction industry in its various forms in the State of Florida, together with the sanctions for violations of those standards.
Section 489.129 Florida Statutes authorizes the Construction Industry Licensing Board to revoke or suspend the registration or certificate of a contractor and impose an administrative fine, place a contractor on probation or reprimand or censure a contractor if the contractor is found guilty of committing any of the acts enumerated in that Section.
Here, the burden of proof is on the Petitioner. Balino vs. Department of Health and Rehabilitative Services, 348 So. 2nd 339, (Fla. 1st DCA 1977). License revocation proceedings are, penal in nature. State ex rel Vining vs. Florida Real Estate Commission, 281 So. 2nd 487, (Fla. 1973). The Petitioner must establish the essential elements of the charges contained in the Administrative Complaints by clear and convincing evidence. Hel Heifetz d/b/a Key Wester Inn vs. Department of Business Regulations, Division of Alcoholic Beverages and Tobacco (Fla. 1st DCA 1985). Petitioner here seeks to revoke, suspend, or otherwise discipline the license of the Respondent. Under such circumstances, Bowling vs. Department of Insurance, 349 So. 2d
165 (Fla. 1st DCA 1981) requires the evidence weigh as substantially on a scale suitable for evidence as the penalty does on a scale for penalties. In view of the pronouncements in Bowling, when the evidence is clear and convincing that the particular violations did occur, only then is the threshold of guilt crossed and the travel of the corresponding pointer of the penalty scale cleared so that it might come to rest indicating an appropriate penalty.
DOAH CASE NUMBER 85-0714
This single count Administrative Complaint charges that Respondent "violated Sections 489.129(1)(a) and 489.129(1)(j), Florida Statutes (1983) through violations of 489.127(1)(d), Florida Statutes (1983), by giving false evidence to the Board for the purpose of obtaining a certificate." Section 489.129(1)(j), prohibits "failure in any material respect to comply with the provisions of "Chapter 489]"; Section 489.129(1)(a), prohibits the obtaining of a certificate "by fraud or misrepresentation"; and Section 489.127(1)(d) prohibits the giving of "false or forged evidence to the Board . . . for the purpose of obtaining a certificate or registration," and provides that such violation is a first degree misdemeanor.
The Petitioner established by clear and convincing evidence that Respondent obtained his license by misrepresentation. In order to be licensed as a certified general contractor, Respondent had to submit an application to take an examination given by the Construction Industry Licensing Board. As a part of the application process, the Respondent had to answer whether he had ever been convicted of an offense, other than a traffic violation, in this state or any other state. The Respondent indicated that he had not been convicted of any such offense, when in fact, he was convicted of the felony offense of wanton endangerment in Kentucky in 1978. The Respondent's claim that he believed the conviction to be for a traffic violation is specifically rejected, especially in view of the fact that the Respondent was represented by counsel at the prior proceeding,
spent four months in a prison infirmary and was later placed on probation which was transferred to Florida when Respondent relocated here. The Respondent is guilty of a violation of Section 489.129(1)(a). The Respondent is not guilty of a violation of Section 489.129(j) through his alleged violation of Section 489.127(1)(d). While a conviction in criminal court of any of the offenses enumerated in Sections 489.127(1)(a)-(f) may not be required before administrative action can be taken against the licensee pursuant to Section 489.129(1)(j), the omission of a criminal record does not establish the offense of "[giving] false or forged evidence to the board."
DOAH CASE NUMBER 85-3393 COUNT ONE:
In Count One (Evans project), the Respondent is charged with diverting funds from a specific project in which he was engaged as a contractor resulting in subcontractors not being paid, committing fraud, deceit, gross negligence and/or misconduct in the practice of contracting by knowingly issuing a check to Central Air Heating and Cooling Company without sufficient funds on deposit to cover-said check and making fraudulent or misleading representations in his practice as a contractor, in violation of Sections 489.129(1)(h), 489.129(1)(m), and Section 455.227(1)(a), Florida Statutes, respectively.
The Petitioner has failed to prove by clear and convincing evidence that the Respondent diverted funds from a specific project in which he was engaged as a contractor or that, more importantly, as a result of the diversion, he was unable to fulfill the terms of the contract. Likewise, the Petitioner has failed to prove by clear and convincing evidence that the Respondent made fraudulent or misleading representations or committed fraud and/or deceit by issuing a check to Central Air Heating and Cooling Company without sufficient funds on deposit. At the time that the check was written, the Respondent believed that sufficient funds were on deposit to cover the check and. anticipated that sufficient funds would remain on deposit to cover the check when it arrived for negotiation. The elements of scienter and intent are not present to support the allegations of fraud and deceit. Further, the Respondent's promise and subsequent failure to submit another check in the amount owed does not of itself prove the charge of misleading or fraudulent representations. Any inference that Respondent did not intend to submit another check at the time that he made the promise is less than clearly and convincingly established in the record.
The Petitioner has shown by competent and substantial evidence that the Respondent was grossly negligent in the practice of contracting in regard to the Evans project. The
Respondent, through the misdeeds of his agents, failed to pay a subcontractor in one instance, and wrote a check which was returned for "insufficient funds" to a subcontractor in another instance. As a result of the Respondent's failure to pay one of the subcontractors, the homeowners were sued in civil court and required to pay the amount claimed plus costs. The Respondent was notified of the returned check--promised to make the check good--but never did. A contractor may not leave the property owner-to defend for himself against unsatisfied liens owing to subcontractors. Neither may the contractor leave subcontractors holding worthless and bad checks. The Respondent is guilty of gross negligence in his practice as a contractor as alleged in Count One of the Administrative Complaint.
COUNT TWO:
In Count Two (the Bernstein project), the Respondent is charged with making fraudulent and misleading representations to the home owner that all subcontractors had been hired, when they were not; and, exhibiting gross negligence in the practice of contracting with regard to the portion of the job that was completed, forcing the homeowner to hire a new contractor to correct serious problems in the construction of the walls and roof, in violation of Section 455.227(1)(a), Florida Statutes and Section 489.129(1)(m), Florida Statutes, respectively.
The Petitioner failed to prove by clear and convincing evidence a violation of Section 455.227(1)(a) or Section 489.129(1)(m), Florida Statutes. The evidence was unclear as to what Respondent meant when he allegedly told Bernstein that he had several subcontractors available to complete the job. Until the agreement with Bernstein was finalized and the full scope of the project determined, there was no need for Respondent to obtain final "bids" for the project. Bernstein admitted that Respondent told him that he had a choice of several potential workers and that Bernstein could pick out the ones that he liked. The Petitioner failed to present clear and convincing evidence that any of the work completed on the project by Respondent was incorrectly performed. Bernstein's contract with the new contractor was broader in scope than the contract with Respondent and called for more work. Because the new contractor may have
re-done some of the work previously performed by Respondent, the
conclusion that the work previously performed was incorrect or inadequate may not be reached, especially where the contracts had different specifications. Respondent is not guilty of a violation of Section 455.227(1)(a), Florida Statutes nor Section 489.129(1)(m), Florida Statutes.
COUNT THREE:
In Count Three (Ross project) the Respondent is charged with exhibiting fraudulent conduct in the practice of contracting by refusing to refund to the home owner the difference between monies paid to him and the amount used for the purchase of supplies, which were used by a subsequent contractor; and making fraudulent or misleading representations relating to his practice as a contractor, in violation of Sections 489.129(1)(m), Florida Statutes and 455.227(1)(a), respectively.
The Petitioner failed to prove by clear and convincing evidence that the Respondent is guilty of fraudulent conduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes and failed to prove that Respondent made fraudulent or misleading representations in violation of Section 455.227(1)(b), Florida Statutes. Respondent made a good faith attempt to negotiate his dispute with the home owner and attempted to refund a significant portion of the $775 to Ross, but Ross insisted that the entire amount be refunded. Ross subsequently sued Irven Construction in civil court and obtained a judgment for the full $775 plus court costs. There was no evidence of fraudulent or misleading representations in regard to the Ross project.
COUNT FOUR:
In Count Four, based on Respondent's actions in the Evans, Bernstein and Ross projects, Petitioner charges that Respondent was grossly negligent in his management of his contracting business, grossly negligent in failing to supervise his contracting business; grossly negligent in not taking steps to stop the activities of his business while he was unable to supervise it due to health problems; and, is physically incompetent to engage in contracting due to health problems in violation of Section 489.129(1)(m), Florida Statutes, (1983).
The Petitioner proved by clear and convincing evidence that the Respondent was guilty of gross negligence in the conduct of his contracting business. The pattern established in the Evans, Bernstein and Ross projects shows that the Respondent's business was mismanaged to the detriment of his subcontractors and his customers, the general public. Projects were started late and never finished, subcontractors not paid, bad and worthless checks written, liens filed against homeowners, and invariably, customers left unsatisfied. At the time Respondent entered into these contracts, he knew that his mental and physical capacity had been affected by his automobile accident of July 19, 1984. As a result of the accident, Respondent had severe head, shoulder and back injuries and his seizure activity returned. In November of 1984, Respondent was hospitalized and had a "trimmed disc"; in January, 1985 Respondent re-injured his
back again. After the July 1984 accident Respondent provided little or no control or supervision to his business. Respondent briefly returned to work in January 1985 but re-injured his back working on the Bernstein project. The Respondent allowed an employee who had no construction background to be in charge of the business section of his company and allowed an employee with limited skills and abilities to be charge of the construction aspect of his contracting business. The Respondent freely admitted that because of his health problems, he was unable to properly supervise the contracting activities of his business, but allowed the business to continue in the hopes that new cash flow would revive his fledgling enterprise until such time as he was healthy enough to return to the business.
The allegation that Petitioner is physically incompetent to engage in contracting due to his health was not proven. The Petitioner did establish that Respondent had severe health problems which interfered with his capacity to conduct his contracting business during the period material to the Administrative Complaint, however, no competent medical evidence was presented indicating his present or future ability to physically engage in the business of-contracting.
The Petitioner is guilty of gross negligence in the management of his contracting business, failure to supervise his contracting business and not taking steps to stop the activities of his business while he was unable to supervise it due to health problems, in violation of Section 489.129(1)(m), Florida Statutes, (1983).
DOAH CASE NUMBER 85-4216
In this Administrative Complaint (the Loman project), the Respondent is charged with abandoning a construction project in which he was engaged or under contract as a contractor; diverting funds received for completion of a specified project: and exhibiting fraud, deceit, incompetence or misconduct on the practice of contracting, in violation of Sections 489.129(1)(k); 489.129(1)(h) and 489.129(1)(m), Florida Statutes, respectively.
The Loman contract was entered into on September 20, 1984, with the understanding that the project would be completed within forty-five (45) days. In February 1985, the last time work was performed on the Loman project, 90% of the work had been completed and 84% of the contract price had been paid. In February, the Respondent informed Loman that because of his health, the completion would be delayed and that Respondent would attempt to obtain the services of another contractor so that the project would be completed. Under the circumstances, the Respondent is not guilty of abandonment of the Loman project.
The Respondent provided notification to the prospective owner and had just cause (physical inability) for refusing to continue the project.
The Petitioner proved by clear and convincing evidence that the Respondent was guilty of gross negligence in the practice of contracting. Loman received liens from two subcontractors regarding work performed on the project. The Respondent took no action to protect Loman from liens or to satisfy the subcontractors. The contractor may not leave the property owner alone to defend for himself against lien claims by subcontractors. Neither may a contractor, without just cause, refuse to pay amounts due and owing subcontractors. The Petitioner is guilty of violation of Section 489.129(1)(m), Florida Statutes. The Petitioner failed to prove by clear and convincing evidence that Respondent diverted funds received for the completion of the Loman project, or more importantly, that as a result of the diversion of funds, Respondent was unable to fulfill the terms of the contract.
DOAH CASE NUMBER 85-4246
In this Administrative Complaint (the Dubin project), the Respondent is charged with willful or deliberate disregard and violation of applicable building codes of a county by failing to obtain a building permit or calling for inspections required and failing to subcontract electrical work on the project to a person with a valid electrician's license in violation of Sections 489.129(1)(d) and 489.129(1)(j), respectively. Section 489.129(1)(d), prohibits "willful or deliberate disregard and violation of the applicable building codes or laws of the State or any municipality or counties thereof." Section 106.1 of the Seminole County Building Code requires that a permit for construction be obtained by the contractor. Section 108.2 of the Seminole County Building Code requires certain inspections of the construction work by the Seminole County Building Department after the permit is obtained and construction is under way. The evidence showed that Irven Construction applied for a permit for the Dubin project, and that the permit was approved. However, for some reason, the permit was later voided. The Respondent explained that he was having problems with a particular employee during this period and Respondent established the substantial likelihood that this disgruntled employee had something to do with the permit being voided. In any events, the Respondent reasonably believed that he had complied with the local building code. Section 489.129(1)(d), Florida Statutes requires a willful or deliberate disregard of the local ordinance such was not the ease here. The Respondent is not guilty of a violation of Section 489.129(1)(d), Florida Statutes.
The Petitioner also failed to prove by clear and convincing evidence that the Respondent was guilty of a violation of Section 489.129(1)(j), through a violation of Section 489.113(3), Florida Statutes. The letter section provides in part that:
"A contractor shall subcontract the electrical . . . work for which a local examination for a certificate of competency or a license is required, unless such contractor holds a state certificate of competency or a license of the respective trade category . . . this sub-section does not apply if the local authority does not require a certificate of competency or license for such trade . . ."
The Petitioner failed to present any evidence that the particular electrical portions of the project involved work for which a local examination for a certificate of competency or license was required. Further, there was no evidence that the individual who performed the electrical work did not hold a local. or state license in that trade category. The Respondent is not guilty of a violation of Section 489.129(1)(j), through a violation of Section 489.113(3), as alleged.
Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED THAT:
Respondent's license be suspended for a period of four (4) years, with the condition that he may be eligible to apply to the Board for reinstatement after a period of two (2) years and upon a showing satisfactory to the Board that his financial affairs are in good and sound condition and that he is physically capable of carrying on a contractor's business. Further, for the purposes of such an application for reinstatement, Respondent shall be required to appear before the Board for such questions as the Board feels appropriate and shall supply the Board with such documents as the Board feels necessary.
DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986.
COPIES FURNISHED:
Errol H. Powell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Stuart G. Green, Esquire 712 East Washington Street Orlando, Florida 32801-2994
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street. Tallahassee, Florida 32301
James Linnan, Executive Director Department of Professional
Regulation
P. O. Box 2
Jacksonville, Florida 32202
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings
of Fact Submitted by the Petitioner
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 1.
Adopted in Findings of Fact 2 and 3.
Adopted in Findings of Fact 2 and 3.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 7.
Adopted in Finding of Fact 7.
Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as a recitation of testimony.
Rejected as a recitation of testimony.
Rejected as legal argument.
Rejected as subordinate.
Rejected as unnecessary and subordinate.
Rejected as unnecessary and subordinate.
Rejected as unnecessary and subordinate.
Adopted in Finding of Fact 34.
Adopted in Finding of Fact 34.
Adopted in Finding of Fact 34.
Adopted in Findings of Fact 37 and 38.
Adopted in Finding of Fact 35.
Adopted in Finding of Fact 36.
Adopted in Finding of Fact 37.
Adopted in Finding of Fact 37.
Adopted in Finding of Fact 37.
Adopted in Finding of Fact 38.
Adopted in Finding of Fact 39.
Adopted in Finding of Fact 39.
Adopted in Finding of Fact 40.
Adopted in Finding of Fact 40.
Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate.
Adopted in Finding of Fact 41.
Adopted in Finding of Fact 49.
Adopted in Finding of Fact 49.
Partially adopted in Finding of Fact 51. Matters not contained therein are rejected as subordinate and unnecessary.
Rejected as subordinate and unnecessary.
Rejected as subordinate and unnecessary.
Adopted in Finding of Fact 50.
Adopted in Finding of Fact 51.
Adopted in Finding of Fact 51.
Rejected as recitation of testimony.
Adopted in Finding of Fact 51.
Adopted in Finding of Fact 53.
Rejected as a recitation of testimony.
Adopted in Finding of Fact 42.
Adopted in Finding of Fact 42.
Adopted in Finding of Fact 42.
Adopted in Finding of Fact 42.
Adopted in Finding of Fact 42.
Adopted in Finding of Fact 43.
Adopted in Finding of Fact 44.
Rejected as subordinate and unnecessary.
Adopted in Finding of Fact 45.
Adopted in Finding of Fact 46.
Adopted in Finding of Fact 47.
Adopted in Finding of Fact 47.
Adopted in Finding of Fact 48.
Adopted in Finding of Fact 48.
Rejected as a recitation of testimony.
Rejected as subordinate and unnecessary.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 10.
Adopted in Finding of Fact 11.
Adopted in Finding of Fact 12.
Adopted in Finding of Fact 18.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 14.
Adopted in Finding of Fact 14.
Adopted in Finding of Fact 15.
Adopted in Finding of Fact 15.
Rejected as a recitation of testimony.
Rejected as subordinate.
Rejected as subordinate.
Rejected as a recitation of testimony.
Adopted in Finding of Fact 19.
Adopted in Finding of Fact 19.
Adopted in Finding of Fact 20.
Adopted in Finding of Fact 20.
Adopted in Finding of Fact 21.
Adopted in Finding of Fact 21.
Adopted in Finding of Fact 22.
Adopted in Finding of Fact 23.
Adopted in Finding of Fact 24.
Adopted in Finding of Fact 24.
Adopted in Finding of Fact 24.
Partially adopted in Finding of Fact 25. Matters not contained therein are rejected as subordinate.
Adopted in Finding of Fact 25.
Adopted in Finding of Fact 26.
Adopted in Finding of Fact 26.
Adopted in Finding of Fact 27.
Partially adopted in Findings of Fact
27 and 28. Matters not contained therein are rejected as not supported by competent and substantial evidence.
Adopted in Finding of Fact 27.
Rejected as a recitation of testimony and/or subordinate.
Adopted in Finding of Fact-29.
Adopted in Finding of Fact 29.
Adopted in Finding of Fact 29.
Adopted in Finding of Fact 29.
Adopted in Finding of Fact 30.
Adopted in Finding of Fact 30.
Partially adopted in Findings of' Fact 31 and 32. Matters not contained therein are rejected as subordinate.
Partially adopted in Findings of
Fact 31 and 32. Matters not contained therein are rejected as subordinate.
Adopted in Finding of Fact 32.
Adopted in Finding of Fact 33.
Adopted in Finding of Fact 32.
Adopted in Finding of Fact 33.
Adopted in Finding of Fact 33.
Adopted in Finding of Fact 34.I
Rejected as subordinate and unnecessary.
Adopted in Finding of Fact 37.
111. Rejected as subordinate and unnecessary.
114. Rejected as subordinate and unnecessary.
Rulings on Proposed Findings
of fact submitted by the Respondent (None submitted).
| Issue Date | Proceedings |
|---|---|
| Apr. 09, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 1986 | Agency Final Order | |
| Apr. 09, 1986 | Recommended Order | Contractor's habits of incomplete projects, worthless checks, liens against owners, and unsatisfied customers constituted gross negligence in contracting. |
