STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-2202

FRED H. WHITE, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Order of the undersigned dated January 6, 1986, setting the case for hearing, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Tallahassee, Florida, on April 7, 1986. The issue for consideration at the hearing was whether Respondent's license as a registered general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint.

APPEARANCES

For Petitioner: Errol H. Powell, Esquire

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

For Respondent: Fred H. White, pro se

Route 8, Box 85B Tallahassee, Florida 32301

BACKGROUND INFORMATION

On November 21, 1984, Fred Roche, Secretary of the Department of Professional Regulation, filed an Administrative Complaint in this case against the Respondent alleging various violations of Chapter 489, Florida Statutes, dealing with his performance as a general

contractor. On December 24, 1984, Respondent submitted an Election of Rights form on which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. Thereafter, on June 25, 1985, the Petitioner forwarded the case to the Division of Administrative Hearings for the appointment of a Hearing Officer and on July 25, 1985, the undersigned set the hearing in this case for September 20, 1985. However, on September 24, 1985, based on a written copy of a previous oral Joint Motion for Continuance submitted by the parties, the undersigned entered an Order granting an indefinite continuance for the purpose of settlement negotiations with the proviso that the parties advise the undersigned no later than December 20, 1985, of the need for further hearing herein. These negotiations were apparently unsuccessful as on December 23, 1985, counsel for Petitioner submitted a request that the case be set for hearing. On January 6, 1986, the undersigned set the case for April 7, 1986, at which time the matter was heard.

At the hearing, Petitioner presented the testimony of Elmer

M. Powell, a homeowner from St. George Island, Florida, and complainant herein; Phillip E. Hill, a general contractor and entrepreneur from Eastpoint, Florida; and that of the Respondent. Petitioner also introduced Petitioner's Exhibits 1 through 4 and 6 through 9. Respondent testified in his own behalf but presented no documentary evidence.

Subsequent to the hearing, counsel for Petitioner submitted a post hearing Proposed Recommended Order which contains proposed findings of fact. These have been thoroughly considered and evaluated in the preparation of this Recommended Order and are addressed individually in the Appendix attached hereto.

FINDINGS OF FACT

1. Respondent, Fred H. White, was licensed as a registered general contractor in Florida under License Number RG 0005082 in February, 1968. Thereafter, in April, 1970, Respondent was issued his license to qualify BUILDINGS BY WINCHESTER, INC. His license went delinquent on July 1, 1973, however, it was reinstated and placed on active status in July, 1977 when Respondent qualified CAPITAL STONE COMPANY under that license. The license was to expire on June 30, 1981. In July 1982, it was again issued

   to Respondent qualifying as an individual and was, at all times pertinent to the issues alleged herein, active.

   
   

2. On December 2, 1982, Respondent entered into a contract with Mr. and Mrs. E.M. Powell, of Lot 10, Shell Harbour, St. George Island, Florida, to build a 1736 square foot home for them for the contract price of $74,120.00. The plans and specifications for this construction were listed by number on the hand written contract signed by Respondent and the Powells and witnessed by Ronald Jones. This contract was signed after Mr. Powell procured the issuance of a building permit to build a 1668 square foot residence, estimated to cost $52,500.00 on his Shell Harbour property. Mr. Powell-indicates that the application for the building permit was made by his architect, Mr. Clayton Anderson, however, the application and permit itself reveals no place thereon where Mr. Anderson's signature appears. In fact, the signature of the applicant, undated, is that of Mr. Powell, but the permit, number 4512, was issued on November 11, 1982. Both Mr. Powell and the Respondent attribute the difference in size of the building and the price to changes made and agreed upon by the parties subsequent to the issuance of the permit and prior to the signing of the contract.

   
   

3. The contract in question is what could be best described as a "bare bones" contract. The basic legal requirements of a contract are present in that the parties are identified, consideration is reflected, there is a specific legal purpose, and obviously an offer and acceptance with, at the time of signing, an apparent meeting of the minds. This document is, however, an invitation to dispute, as there is no estimated time of completion or any other detail which might serve to more clearly identify the rights and obligations of the parties. Mr. Powell indicates that the Respondent estimated three months would be necessary to complete the project and that Mr. White indicated he would be on the site just about every day. Mr. White tells a substantially different story, however, in that he contends he had other projects under construction at the time, projects with which Mr. Powell was totally familiar, and that he, Respondent, was present when necessary, to supervise as necessary.

   
   

4. Mr. White denies that he was the general contractor for Mr. Powell on this job. He contends that he was the framing contractor and that Mr. Powell served as his own

   general contractor. He contends, and Mr. Powell admits, that much of the building material purchased was picked out by Mr. Powell. On the other hand, much was also ordered by Respondent. Neither side could give a detailed accounting of who bought what and no evidence was presented to show who did what in any detail. Certain of the subcontractors were arranged for by Respondent. Others were arranged for by Mr. Powell. All bills were paid by Mr. Powell.

   According to Respondent, he signed the contract as general contractor only so that Powell could get a Veterans' Administration loan and issued the completion certificate as general contractor because "that's the way it was done."

   
   

5. Be that as it may, the house was subsequently completed, and at the closing on or about October 31, 1983, Mr. White, as general contractor, presented Mr. Powell with a contractor's affidavit in which he indicated that all subcontractors, laborers and material suppliers had been paid in full; that all building codes had been complied with; that all installed equipment including roofing, ventilators, windows, skylights, fireplaces, insulation, etc., were installed according to building code and manufacturers' instructions and that all manufacturers' guarantees and warranties were thereby validated by the proper installation of the product. Respondent orally warranted he would stand behind his work for one year.

   
   

6. Mr. White, as was indicated above, denies he was the general contractor but insists that he was properly supervising those portions of the project which it was his responsibility to supervise. Mr. Powell, on the other hand, insists that Respondent was frequently absent and there were several periods when he did not appear on the site to supervise construction of the property for extended periods of days. There was no detailed evidence, however, as to which days were involved, but it is clear from all the evidence, including the contract and the certificate as well as Mr. White's testimony, that he was the general contractor and had a responsibility to adequately supervise the construction regardless of whether the subs in question were directly hired by him or were hired by Mr. Powell. It is inconceivable that Respondent would have continued to perform under the contract if he did not feel that he had a responsibility to do so and that, for the most part, matters were going as they were envisioned to go under the terms of the agreements between the parties.

7. After installation and from the very beginning, Mr. Powell noticed a problem with the upper outside fixed windows on the land side of the house which had been picked out by Respondent. It appears that water was leaking in the vicinity of these triangular windows and ran down the interior walls under the two outermost windows into the light fixture over the sink and down onto the counter tops. Water also ran down the wall over the entrance door and damaged a closet ceiling near that area. As a result, part of the ceiling fell in the closet the counter top in the kitchen began to swell and pull away from the wall and the drawers in the closets began to bind.

   
   

8. When these leaks first occurred, even before the house was completed, Mr. Powell notified the Respondent both orally and in writing. Respondent promised to repair the windows and did, on several occasions, come out and attempt repairs by caulking around the windows. However, these repairs were ineffective and each time it would rain, water would again come in. Respondent never inspected right after a rain, however. Consequently, on December 19, 1983, Mr. Powell wrote a letter of complaint to Respondent which he sent by Registered Mail to that address utilized by Respondent--Route 8, Box 85B, Tallahassee, Florida, 32301. Respondent was left several notices by postal authorities but failed to claim the letter from the post office and it was returned to the sender undelivered. Mr. Powell, on February 15, 1984, hand-delivered a similar letter outlining the discrepancies in the house to Respondent on the steps of the county courthouse in Apalachicola, Florida, but Respondent denies ever having received the letter.

   
   

9. Respondent attempted to explain why he did not receive notice of the letter sent to him by Registered Mail. His explanation was so convoluted and involved as to be incomprehensible and not capable of belief. By the same token, Mr. Powell has a faulty memory of many of the things recited by Respondent. This is obviously a situation where both parties see the matter in the light most favorable to them and, unfortunately for the resolution of this dispute, there is little independent evidence of what happened. However, in resolution of the matter, it is found that though the first letter was not received, the second letter was, and Mr. White was given ample notice, aliande the letters, of the defects in the installation of these windows as well as the chimney cap through which,

   reportedly, water was entering the chimney and rusting the firebox of the fireplace.

   
   

10. With regard to this chimney, Respondent agreed to install a new chimney cap, just to keep the peace, even though he did not feel there was anything wrong with the installation of the original one. Mr. Powell was to get it, but did not do so, however, claiming that he was never instructed by Respondent as to what kind to get or when to get it.

    
    

11. As to the allegedly deficient cap, Respondent describes it as a tubular piece of metal perforated all around so that the smoke can get out but hot ash is retained. Since there are holes in the device to let the smoke out, water can get in through those holes when it rains. Respondent claims that what is needed, if a total absence of water is desired, is to place a cover over the cap. Respondent contends that all fireplaces built that way with an uncovered cap, admit water to some degree. There was no evidence presented by the Petitioner to contradict Respondent's assertion or to show that Respondent improperly installed the chimney cap.

    
    

12. With regard to the windows, however, after Mr. Powell had made the repeated efforts to have Respondent repair the windows so that the leakage would stop, he subsequently contracted with another builder to replace them. When this second builder examined the windows, it was determined that they were too small for the opening in which they were placed and that they were improperly installed. This left a large area around the window which Respondent had attempted to fill with caulking, but the space was so large that caulking itself was insufficient to correct the problem. The second contractor determined it would be necessary to remove the windows and install appropriate sized windows in a proper fashion and this was done at a cost of in excess of $500.00. The windows have not leaked since.

    
    

13. Respondent contends that the windows were properly installed and caulked and that the leak did not come from the space around the windows. Instead, he contends, the leak was caused by improper caulking of the batting above the window below the soffit which was the responsibility of the painter who was, in fact, Mr. Powell's son-in-law and hired by him. Even the builder who replaced the windows

    agrees that caulking of the batting would be the responsibility of the painter, but he contends that this leak was not caused by this deficient caulking but by the improperly sized and installed windows. This was Respondent's responsibility and it is so found.

    
    

14. There is no evidence, aliunde that described above which in any way shows that Respondent made any misleading, deceptive, or fraudulent misrepresentations in the practice of contracting. Though no detailed information was presented regarding the actual number of days Respondent was absent from the job site, there was some substantial evidence on the part of Mr. Powell, who had no reason to lie, that Respondent was absent from the job site quite frequently.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

16. In Count One of the Administrative Complaint, Petitioner alleges that the Respondent is guilty of making misleading, deceptive, and fraudulent representations in the practice of his profession by failing to honor a warranty in violation of Section 455.227(1)(a), Florida Statutes, and thereby, Section 489.129(1)(c), Florida Statutes, and that he is further guilty of gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129(1)(m).

    
    

17. Section 455.227 states that the Construction Industry Licensing Board shall have the power to discipline a licensee if it finds that (a) the licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Section 489.129(1)(c) states that the Board may take disciplinary action for any violation of Chapter 455. Here, Petitioner contends that Respondent's failure to honor a warranty constitutes a misleading, deceptive, and fraudulent representation in the practice of his profession. This has not been proven. Respondent made several efforts to repair the windows to the owner's satisfaction. That he was not able to do so may constitute a breach of warranty, but the remedy for that lies in a court of law rather than in an administrative hearing for fraudulent representation.

    
    

18. Subsection 489.129(1)(m), however, allows the Board to discipline a licensee:

    
    

    ". . . upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency or misconduct in the practice of contracting."

    
    

    Here, as was stated above, there is no evidence of fraud, deceit or misconduct. There is also no evidence of gross negligence though Respondent's installation, as described by the builder hired to replace the windows, may possibly constitute negligence and certainly constitutes incompetence.

    
    

19. In Count Two, Respondent is alleged to be guilty of failing to meet his required duties as a qualified contractor by properly supervising the project in violation of Section 489.105(4) which is itself a violation of Section 489.129(1)(j). Subsection 489.105(4) defines a qualifying agency as a:

    
    

    ". . . person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected."

    
    

    Subsection 489.129(1)(j) permits the Board to discipline a licensee for a failure in any material respect to comply with the provisions of this act.

    
    

20. In license revocation proceedings such as this, the critical matter in dispute must be shown by evidence which is, "indubitably as substantial as the consequences." Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981).

    
    

21. There can be little doubt here that as a registered contractor who has contracted with an individual for construction or contracting activities, Respondent has the responsibility to supervise those activities to insure that they are accomplished in a proper and professional manner. Here, Mr. Powell left little doubt that Respondent was absent from the site quite frequently. However, there is no evidence at all to show that this absence was directly related to the deficiencies in the project. There is no doubt that the project was completed and though there may

    have been other difficulties or deficiencies these were not alleged and there was no admissible evidence presented to establish them. Consequently, there is little evidence to prove that Respondent failed to properly supervise the construction.

    
    

22. It having been established that Respondent violated the statute in at least one particular area, the remaining question is as to what action should be taken because of this violation. Disciplinary action may include revocation, suspension, administrative fine, probation, reprimand, and/or censure in appropriate cases. Here it is clear that Mr. White's misconduct does not justify revocation or even suspension. However, some action of an appropriate nature is necessary to impress upon him the need to conduct his affairs in such a manner as to comport with the high standards of the construction industry in this State.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore

RECOMMENDED that Respondent be found guilty of imcompetence in the installation of the windows in question in Mr.

Powell's house, as alleged in the Administrative Complaint that the remaining allegations be dismissed that Respondent be reprimanded that his license be placed on probation for a period of two years under such terms and conditions as the Construction Industry Licensing Board shall determine appropriate, and that he make restitution to Mr. Powell in the amount of $577.23.

RECOMMENDED this 11th day of June, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 11th day of June, 1986.

Copies furnished:

Fred Seely Executive Director

Construction Industry Licensing Board

P. O. Box 2

Jacksonville, Florida 32201

Errol H. Powell, Esquire Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Fred H. White, pro se Route 8, Box 85-B

Tallahassee, Florida 32301

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

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 Petitioner herein.

1. Adopted in Finding of Fact 1.

2-4. Adopted in Finding of Fact 2. 5-6. Adopted in Finding of Fact 6.

1. Adopted in Finding of Fact 3.

   
   

2. Adopted in Finding of Fact 5.

3. Adopted in Finding of Fact 14.

   
   

4. Adopted in Finding of Fact 5.

   
   

5. Adopted in Finding of Fact 7. lla. Irrelevant.

6. Subordinate to the finding that Respondent was the general contractor.

   
   

7. Adopted in Finding of Fact 8.

   
   

8. Irrelevant.

15-16. Adopted in Finding of Fact 8.

17. Adopted in Finding of Fact 12.

18-19. Adopted in Findings of Fact 9 and 10. 20-21. Adopted in Finding of Fact 12.

22-25. Adopted in Finding of Fact 9. 26-27. Adopted in Finding of Fact 13.

28. Irrelevant.

29-31. Adopted in Finding of Fact 13.

1. Adopted in Finding of Fact 14.

   
   

2. Subordinate to Finding of Fact 13.

   
   

3. Adopted in Finding of Fact 13.

   
   

4. Adopted in Finding of Fact 14.

   
   

5. Adopted in Finding of Fact 12.

Docket for Case No: 85-002202

Orders for Case No: 85-002202