Judges: DON W. DAVIS
Agency: Department of Business and Professional Regulation
Latest Update: May 27, 1988
Summary: General contractor found to be guilty of failing to timely complete project and to apply funds received to completion of project. $500.00 fine assessed.
87-5310STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5310
)
JOHN W. HAMMEL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 23, 1988 in Fort Lauderdale, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Michael J. Cohen, Esquire
517 South West First Avenue Ft. Lauderdale, Florida 33301
For Respondent: Mary E. Hammel, Esquire
501 South East 12 Street
Ft. Lauderdale, Florida 33316 BACKGROUND
Respondent is a certified general contractor licensed by Petitioner.
Charged by Petitioner in an administrative complaint with failure to complete a construction job in a timely and reasonable manner, the Respondent requested a formal administrative hearing. This proceeding followed.
At hearing, the Petitioner presented testimony of three witnesses and seven evidentiary exhibits. The Respondent presented testimony of one witness. The Respondent was granted leave to submit a post hearing exhibit which was received and considered. Proposed findings of fact submitted by the Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from the Respondent by the required deadline or at the time of the preparation of this recommended order.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
The Petitioner is the Department of Professional Regulation.
The Respondent is John W. Hammel, holder at all times pertinent to these proceedings of certified general contractor license number CG-CA16780 issued by the Petitioner. His address of record is Dania, Florida.
On or about June 17, 1986, the Respondent entered into a contract with a property owner named Vance Lee. The Respondent agreed to remodel Lee's duplex housing unit for the total sum of $15,200 and, in effect, turn the duplex into a four unit complex. The parties agreed the total sum would be paid in four installments.
The owner was originally assured by the Respondent that all construction could be completed within six weeks of contract execution. Shortly after August 4, 1986, and after receipt from the owners of all amounts to be paid under the contract, except the final payment due upon project completion of
$1,500, the Respondent left the construction site. At that time, approximately thirty percent of the required construction remained uncompleted. As a result of pressure by the owner and the filing of the administrative complaint in this cause, he has worked there since that time on a "spasmodic" basis. One day of work every two months reflects the average record of the Respondent's efforts to complete construction activities. At the hearing held in this cause, the Respondent admitted he had not completed the construction job in a timely and reasonable manner and that twenty to twenty-five percent of the construction job was still uncompleted.
Among the tasks, at time of hearing, yet to be completed were some plumbing installations (including a missing hot water heater), a fire wall between two units, an uncompleted ceiling in one of the units, and certain landscaping requirements related to the front drive of the building.
The Respondent's explanation, offered in mitigation of his failure to complete the construction job in a timely and reasonable manner, is that his business partner quit and left Respondent with the sole responsibility for completion of eight other jobs. Due to financial problems, he has been working his way through those jobs in chronological order. The job which is the subject of this proceeding was the last job taken before the partner departed and hence is the last to be completed.
As a result of the Respondent's failure to timely complete the project, the building permit expired, resulting in the issuance of a violation citation by the local city government.
At hearing, Respondent represented that he would complete the contract at issue, and requested leave to submit a post hearing mitigation exhibit to demonstrate completion of the project. With Petitioner's agreement, Respondent was granted leave until May 2, 1988 to file his exhibit.
The exhibit was untimely, mailed approximately three days after the required date for filing, but the Petitioner waived objection to the late filing. The exhibit established that Respondent completed construction on the project to the satisfaction of the property owner after the hearing had in this cause. Further, the exhibit established that a certificate of occupancy for the premises, denoting completion in accordance with local governmental building requirements, had been issued by the City of Fort Lauderdale.
As an additional mitigation gesture, the Respondent waived his right to receipt of the remaining payment of $1,500 from the property owners.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.
The Petitioner is required to show by clear and convincing evidence that the Respondent violated section 489.129(1)(k), Florida Statutes, by abandonment of the construction project. No evidence of abandonment, within the statutory definition, of the project has been shown. Hence, the Respondent is not guilty of this offense.
The Respondent is also charged alternatively with the failure to complete the construction project in a timely and reasonable manner contrary to requirements of section 489.129(1)(m), Florida Statutes. The evidence is clear and convincing that the Respondent demonstrated misconduct in the practice of contracting by his failure to apply funds received from the property owner to a speedy completion of the project which, in turn, resulted in unreasonable delay.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an
administrative penalty of $500 in accordance with disciplinary guidelines set
forth in section 21E-17.001(19), Florida Administrative Code.
DONE AND RECOMMENDED this 27th day of May, 1988, in Tallahassee, Leon County, Florida.
DON W. DAVIS
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 27th day of May, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 5310
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
PETITIONER'S PROPOSED FINDINGS
Included in finding number 2.
Included in finding number 3.
Included in finding number 4.
Included in finding number 4.
Included in finding number 7.
Included in findings 4, 5, 6, 8, 9 and 10.
Rejected as a conclusion of law.
Rejected as a conclusion of law.
COPIES FURNISHED:
Michael J. Cohen, Esquire
517 South West First Avenue Ft. Lauderdale, Florida 33301
Mary E. Hammel, Esquire
501 South East 12 Street
Ft. Lauderdale, Florida 33316
William O'Neil, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Seely Executive Director
Department of Professional Regulation
Post Office Box 2 Jacksonville, Florida 32201
Docket for Case No: 87-005310
Orders for Case No: 87-005310
| Issue Date |
Document |
Summary |
|
Dec. 12, 1988 |
Agency Final Order
|
|
|
May 27, 1988 |
Recommended Order
|
General contractor found to be guilty of failing to timely complete project and to apply funds received to completion of project. $500.00 fine assessed.
|
