L. BROWN, )
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hoaring Officer of the Division of Administrative Hearings, on August 18, 1987, in Tallahassee, Florida.
For Petitioner: W. Douglas Beason, Esquire
For Respondent: No appearance.
The Department of Professional Regulation filed an Administrative Complaint dated March 7, 1987, against the Respondent, J. L. Brown, with the Construction Industry Licensing Board. On April 20, 1987, the Respondent executed an Election of Rights contesting the allegations of fact contained in the Administrative Complaint and requesting a formal hearing pursuant to Section 120.57(1), Florida Statutes.
On August 10, 1987, the Petitioner filed Petitioner's Motion to Amend the Administrative Complaint. This Motion was granted by Order dated August 25, 1987.
The formal hearing of this case was scheduled to commence at 9:00 a.m., Tuesday, August 18, 1987. At the time set for the commencement of the hearing the Respondent was not present. The commencement of the hearing was therefore delayed. After waiting twenty minutes the Respondent had still not arrived.
Therefore, the hearing commenced and the Petitioner presented evidence in support of its proposed agency action.
The Petitioner presented the testimony of Iris J. Staten and Robert E. Connell. Petitioner's exhibits 1-8 were accepted into evidence.
The formal hearing concluded at 10:15 a.m. At no time did the Respondent appear or notify the under signed that he would be late in arriving at the hearing. Therefore, the hearing was closed.
At approximately 11:00 a.m. the Respondent appeared at the undersigned's office. The Respondent was informed chat the hearing had taken place and that an Order to Show Cause would be issued giving the Respondent an opportunity to explain why he did not appear at the time set for the commencement of the hearing.
The Order to Show Cause was issued August 18, 1987. The Order gave the Respondent five days to show cause in writing why a Recommended Order should not be issued in this case. On August 24, 1987, the Respondent filed a response to the Order to Show Cause. On August 27, 1987, the Petitioner filed Petitioner's Reply to Respondent's Response to the Order to Show Cause.
By Order dated September 4, 1987, it was concluded that the Respondent had been afforded a right to a hearing which he had failed to avail himself of. It was also concluded that the case should not be rescheduled for further hearing and that a decision would be reached based upon the evidence presented at the formal hearing conducted on August 18, 1987.
On October 9, 1987, the Petitioner filed Petitioner's Motion for Extension of Time to File Proposed Recommended Order. That Motion is hereby granted.
Only the Petitioner has filed a proposed recommended order. A ruling on each proposed finding of fact contained in the Petitioner's proposed recommended order has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Whether the Respondent's registered general contractor license should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Amended Administrative Complaint?
The Respondent is, and has been at all times relevant to the Amended Administrative Complaint, a registered general contractor in the State of Florida. The Respondent holds license RG 0034320.
In the Fall of 1985, Iris J. Staten contacted the Respondent about performing construction work on a house she owned (hereinafter referred to as the "House"). The House is located in Woodville, Wakulla County, Florida.
On or about October 22, 1985, after work had begun on Ms. Staten's House, the Respondent provided Ms. Staten a "Labor/Services Invoice" (hereinafter referred to as the "Invoice"), which set out the work to be performed on the House and the amount to be paid for the work.
The Invoice indicates that the services are to be performed by "Brown Roofing Constr. Co." The Invoice was provided to Ms. Staten, at her request, by the Respondent, d/b/a Brown Roofing Construction Co.
The total amount to be paid by Ms. Staten to the Respondent was
$18,500.00.
As agreed to between the Respondent and Ms. Staten, the following work was to be performed by the Respondent:
Remodeling of the House, including enlarging one side of the House by approximately three feet and the replacement of the side boards on the House;
Installation of a septic tank;
Installation of a central heat and air conditioning system and the mechanical work associated therewith;
Purchase of a used heating and air conditioning system;
Upgrading the electrical system to two hundred amps;
Installation of a toilet, sink and bathtub in the bathroom and a sink in the kitchen; and
Installation of carpet throughout the House and tile flooring in the kitchen and bathroom.
The total price of $18,500.00 was allocated in the Invoice to the work to be performed as follows:
Remodel House | $16,000.00 |
(1) Septic Tank | 850.00 |
(2) Heat/Air Mechanical | Work 1,150.00 |
(3) Used H/A Unit | 200.00 |
(4) 200 AMP Service Cost |
|
Difference From Estimated Cost Due to Central H/A
Installation 300.00
Total 2,500.00
$18,500.00
Ms. Staten made payments in October of 1985 in the following amounts on or about the dates indicated:
Date of Check Amount
October 4, 1985 $4,000.00
October 5, 1985 2,000.00
October 21, 1985 3,000.00
October 30, 1985 4,000.00
$13, 000.00
The Respondent had indicated to Ms. Staten that the work to be performed would be completed by Christmas of 1985.
Although Ms. Staten lived in Miami, Florida, she visited the House periodically. As a result of her visits she became concerned with the lack of progress in completing work on the House.
In January, 1986, the work had not been completed. Therefore, Ms. Staten contacted an attorney who sent two letters to the Respondent in an effort to get the Respondent to complete the renovations.
Whenever Ms. Staten spoke with the Respondent about completing the renovations the Respondent would tell her "I'm going to get on with the job."
In May, 1986, the Respondent called Ms. Staten and told her, "Well, if you send me $1,000.00, then I'll come back and finish the job."
Based upon the Respondent's representation that he would finish the renovations, Ms. Staten sent the Respondent a check from Miami for $1,000.00 dated May 9, 1986.
In June, 1986, the Respondent again asked Ms. Staten for additional money to complete the renovations. Ms. Staten sent the Respondent a check for
$2,000.00 dated June 23, 1986. This payment raised the total amount paid to the Respondent to $16,000.00.
Upon visiting the House in July, 1986, Ms. Staten found that the renovations which the Respondent had agreed to make had not been made.
The Respondent has never completed the agreed upon renovations and other work he agreed to do on the House. Water and electric service have not been hooked back up to the house. No carpet or tile has been put in, the sinks and the toilet have not been installed, the heat and air conditioning mechanical work has not been completed, and the air conditioning unit has not been installed.
Although Ms. Staten has never told the Respondent not to complete the renovations, the Respondent has not performed any work on the House since July, 1986.
Checks paid to the Respondent by Ms. Staten were made out to "Brown's Roofing & Construction," "Brown Construction Co.," and "Brown Roofing Construction." The Respondent has not registered any of these names or Brown Roofing Construction Co. with the Construction Industry Licensing Board.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1960). Because the Respondent's license is at stake, the evidence to support the charges must be clear and convincing. Turlington v. Ferris, So.2d , Supreme Court of Florida, Case No. 69- 561, July 16, 1987.
Section 489.129(1), Florida Statutes (1985), authorizes the Construction Industry Licensing Board to "revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor ... is found guilty of" any of the acts specified in Section 489.129(1)(a)-(m), Florida Statutes (1985).
In the Amended Administrative Complaint in this case the Respondent has been charged with violating 5 of the acts specified in Section 489.129(1), Florida Statutes (1985):
489.129(1)(j), by failure to qualify a firm he was operating through, in violations of Section 489.119;
489.129(1)(g), by operating under a name not appearing on his license;
489.129(1)(h), by diversion of funds received for a construction job, causing inability to fulfill contractural obligations;
489.129(1)(k), by abandonment of a construction job Respondent was engaged on;
489.129(1)(m), by being guilty of gross negligence, incompetence, fraud or deceit or misconduct in the practice of contracting.
Section 489.129(1)(g), Florida Statutes (1985), defines the following prohibited act:
Acting in the capacity of a contractor
under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.
Closely related to the alleged violation of Section 489.129(1)(g), Florida Statutes (1985), it has been contended that the Respondent is guilty of violating Section 489.129(1)(j), Florida Statutes:
Failure in any material respect to comply with the provisions of this act.
It has been contended that the Respondent failed in a material respect to comply with Section 489.119, Florida Statutes (1985), by failing to qualify "Brown Roofing Construction Co." with the Construction Industry Licensing Board. Section 489.119, Florida Statutes (1985), requires generally that contractors licensed by the State of Florida qualify their business entities by approval of an application filed with the Petitioner.
The evidence in this case proved that the Respondent has violated Sections 489.129(1)(g) and (j), Florida Statutes (1985), by acting under the name of "Brown Roofing Construction Co."
Section 489.129(1)(h), Florida Statutes (1985), defines the following prohibited act:
Diversion of funds or property received
for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or
will be unable to fulfill the terms of his obligation or contract.
The evidence in this proceeding failed to prove that the Respondent is guilty of violating Section 489.129(1)(h), Florida Statutes (1985).
Section 489.129(1)(k), Florida Statutes (1985), defines the following prohibited act:
Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.
The evidence in this proceeding proved that the Respondent has not returned to the House or performed any work pursuant to the Invoice since July, 1986, that the work has not been completed and that the Respondent has not given notice that the project is terminated. The Respondent is, therefore, guilty of violating Section 489.129(1)(k), Florida Statutes (1985).
Finally, Section 489.129(1)(m), Florida Statutes (1985), defines the following prohibited act:
