STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4397

)

RONALD E. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 12, 1988, at Apalachicola, Florida, before Michael M. Parrish, a duly designed Hearing Officer of the Division of Administrative Hearings. At the hearing, the parties were represented by the following counsel:

For Petitioner: David L. Swanson, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Van Russell, Esquire

Watkins & Russell

41 Commerce Street Apalachicola, Florida 32320

ISSUES AND INTRODUCTION

This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in an Administrative Complaint signed May 1, 1987. The Administrative Complaint alleges that the Respondent has violated Section 489.129(1)(m), Florida Statutes, which authorizes disciplinary action when a contractor is "...guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." (There is also a factual allegation that the Respondent abandoned a project, but the Respondent is not charged with a violation of Section 489.129(1)(k), Florida Statutes, which authorizes disciplinary action for abandonment of a construction project.)

Subsequent to the hearing, the Respondent filed a proposed recommended order containing proposed findings of fact. Specific rulings on those proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order. As of the date of this recommended order, the Petitioner has not filed a proposed recommended order.

FINDINGS OF FACT

Based on the parties' stipulations and on the evidence presented at the hearing, I make the following findings of fact.

Findings based on stipulations

1. Petitioner is the State agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes.

   
   

2. At all times relevant hereto, Respondent was licensed by said Board [Construction Industry Licensing Board] as a registered residential contractor.

   
   

3. At all times relevant hereto, Respondent had been issued by said Board, and held, license number(s) RR 0042259.

   
   

4. Respondent's address of record is in Apalachicola, Florida.

   
   

5. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Ms. Springer and Ms. Ibbotson, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer.

   
   

6. The details of the contracted work were generally as follows: Contract entered into on or about: 9-86. Job located in: Eastpoint, Florida. Job generally consisted of: add to Customer's house.

   
   

7. Respondent's said contracting business thereafter began said job.

   
   

   Findings based on evidence at hearing

   
   

8. Work on the subject project began on or about September 16, 1986. On or about October 24, 1986, Gerald Siprell, the Franklin County Building Inspector, visited the work site and issued an oral stop work order because the building permit issued for the project did not contemplate a new deck. Mr. Siprell advised Respondent that it would be necessary to obtain a plan for the new deck certified by an engineer, since the project site was located in a velocity zone.

   
   

9. Only one stop work order was issued on the project. Mr. Siprell first issued the order orally, and it was later reduced to writing. The reason given was "improper permit." The stop work order applied only to the new deck. It did not apply to any of the other work under the contract. Mr. Siprell explained to Ms. Springer that the stop work order applied only to the new deck, and that the other work could proceed.

   
   

10. Sometime in early November of 1986, Ms. Springer refused to allow Respondent's workers to proceed with the interior work. Ms. Springer cited Mr. Siprell's stop work order as the basis for her refusal to allow the work to proceed. Respondent's workers returned to the project the following day and Ms. Springer was again told that the stop work order applied only to the new deck. Nevertheless, Ms. Springer again refused to allow the workers to continue the job, so they collected their tools and departed. Less than a week later, Ms. Springer hired Denis Varnes, one of the Respondent's workers, to complete the job.

11. Respondent did not abandon the job. Rather, Ms. Springer, by her actions, prevented Respondent from completing the job.

    
    

12. As of the time Ms. Springer stopped Respondent's work on the project, she had advanced the sum of $6,500.00 to the Respondent. The reasonable value of the work performed by Respondent and of the materials left at the job site by Respondent is greater than the $6,500.00 advance.

    
    

13. Respondent's conduct under the subject contract did not constitute fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

15. In a case of his nature, the Petitioner has the burden of proving its case by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. The factual allegations of the Administrative Complaint contain an assertion that Respondent abandoned the project. However, Respondent cannot be found guilty of abandonment for two reasons. First, notwithstanding the factual allegation, the Administrative Complaint does not charge Respondent with a violation of Section 489.129(1)(k), Florida Statutes. A licensee cannot properly be found guilty of a violation that has not been charged. Second, there is no clear and convincing evidence that Respondent abandoned the project. To the contrary, the greater weight of the evidence is to the effect that Ms. Springer prevented Respondent from continuing to work on the project.

    
    

17. The Administrative Complaint does charge Respondent with a violation of Section 489.129(1)(m), Florida Statutes. That statutory provision authorizes disciplinary action "[u]pon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." While the evidence in this case might support a conclusion that Respondent was not doing a very good job on the subject project, there is no evidence at all of any fraud or deceit and no persuasive evidence of any gross negligence, incompetency, or misconduct. The Petitioner having failed to prove by clear and convincing evidence that Respondent is guilty of fraud, deceit, gross negligence, incompetency, or misconduct, the charge that Respondent violated Section 489.129(1)(m), Florida Statutes, should be dismissed.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board issue a final order in this case dismissing all charges against Respondent.

DONE AND ORDERED this 7th day of March, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4397

The following are my specific rulings on the findings of fact proposed by the parties.

Findings proposed by Petitioner:

The Petitioner did not file any proposed findings of fact.

Findings proposed by Respondent:

Paragraph 1: Accepted (including all subparts.) Paragraph 2: Accepted.

Paragraph 3: All but last sentence accepted. Last sentence rejected as subordinate and unnecessary details.

Paragraph 4: Accepted.

Paragraph 5: Accepted.

Paragraph 6: Accepted in substance.

Paragraph 7: Rejected as constituting subordinate and unnecessary details.

Paragraph 8: Accepted in substance, with some subordinate and unnecessary details omitted.

Paragraph 9: Accepted.

Paragraphs 10, 11, and 12: Accepted in substance, but most details omitted as subordinate and unnecessary.

Paragraph 13: Accepted.

COPIES FURNISHED:

David L. Swanson, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Russell, Esquire Watkins & Russell

41 Commerce Street Apalachicola, Florida 32320

Mr. Fred Seely Executive Director

Construction Industry Licensing Board

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004397

Orders for Case No: 87-004397