STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1997

)

SYLVIA V. ALLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 2, 1988, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Belinda H. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: The Respondent did not appear.

INTRODUCTION

The Petitioner, the Department of Professional Regulation, Construction Industry Licensing Board, filed an Administrative Complaint against the Respondent, Sylvia V. Allen. Ms. Allen signed an Election of Rights form on May 13, 1988, disputing the allegations of fact contained in the Administrative Complaint and requesting a formal hearing pursuant to Section 120.57(1), Florida Statutes. The request for hearing and Administrative Complaint were filed with the Division of Administrative Hearings on May 22, 1988.

On June 3, 1988, a Notice of Hearing was issued setting the formal hearing for September 2, 1988. In the Notice the parties were informed that "[c]ontinuances will be granted only by order of the Hearing Officer for good cause shown."

On August 22, 1988, the Petitioner served a Motion for Continuance by mail on the Respondent. Pursuant to Rule 22I- 6.016, Florida Administrative Code, the Motion could not be ruled on by the undersigned until Ms. Allen was given seven day from the date of service to respond to the Motion plus five days for mailing. The Motion could not, therefore, be ruled on prior to the formal hearing because there was insufficient time between the date of the service of the Motion and the date of the formal hearing to wait for a response from Ms.

Allen. The undersigned informed the Petitioner by telephone that the Motion could not be ruled upon prior to the hearing. After making unsuccessful attempts to contact Ms. Allen by telephone to determine whether she opposed the continuance, the Petitioner withdrew its Motion.

Due to a concern that Ms. Allen would incorrectly assume that the filing of the Motion for Continuance was sufficient to continue the formal hearing, an Order Concerning Motion for Continuance was issued indicating that the formal hearing would proceed as scheduled. This Order was issued in an effort to inform Ms. Allen that any assumption that the hearing was not going forward merely because one of the parties had requested a continuance was incorrect.

This Order did not, however, reach Ms. Allen prior to the formal hearing.

Ms. Allen did not appear at the formal hearing as scheduled an September 2, 1988. After allowing additional time for Ms. Allen to appear, the formal hearing proceeded to allow the Petitioner to present evidence in order to meet its burden of proof in this case. The Petitioner was informed, however, that Ms. Allen would be given an opportunity to explain why she did not appear at the formal hearing and to request an opportunity to present evidence before a Recommended Order was issued in this case because of the possible confusion the Motion for Continuance may have caused.

Accordingly, following the conclusion of the formal hearing an Order to Show Cause was issued. Ms. Allen filed a response to the Order to Show Cause on September 12, 1988. Although not clear, it appeared in the response that Ms.

Allen wanted an opportunity to present evidence before a recommended order was issued. Therefore, an Order Allowing Respondent to Present Evidence was issued on October 4, 1988, indicating that the formal hearing would be resumed. A Second Notice of Hearing was also issued setting the resumption of the formal hearing for October 28, 1988.

On October 28, 1988, Ms. Allen again failed to appear or to notify the undersigned that she would not attend the resumption of the formal hearing. After waiting approximately fifteen minutes, the formal hearing was closed.

At the formal hearing on September 2, 1988, the Petitioner presented the testimony of Thomas Berley and Jerry L. Hicks. Mr. Hicks was accepted as an expert in the construction of large commercial roofing projects and the duties and responsibilities of a roofing contractor. The Petitioner also presented ten exhibits which were accepted into evidence.

The Petitioner has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact 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.

ISSUE

Whether one or more of the following penalties should be imposed on Sylvia

1. Allen: revocation or suspension of Ms., Allen's practice, imposition of an administrative fine and/or any other relief that the Petitioner deems appropriate?

   FINDINGS OF FACT

   
   

   1. The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against registered roofing contractors in the State of Florida.

      
      

   2. Sylvia V. Allen is, and has been at all times material hereto, licensed as a registered roofing contractor in the State of Florida. Ms. Allen holds State of Florida license number RC 0046666.

      
      

   3. Ms. Allen was at all times material hereto the qualifying agent and the President of Lakemont Construction, Inc. of Park 20 West, 1250 Blountstown Highway, 1236-C, Tallahassee, Florida.

      
      

   4. In early 1987, Ms. Allen submitted a bid to the Department of General Services (hereinafter referred to as the "Department") for the reroofing and waterproofing of the National Guard Armory building (hereinafter referred to as the "Armory") located in Winter Haven, Florida.

      
      

   5. The bid submitted by Ms. Allen was for $96,536.00.

      
      

   6. The Department accepted the bid submitted by Ms. Allen and entered into a contract with her on March 31, 1987. Because the contract price was less than

      $100,000.00, no bond was required to be posted.

      
      

   7. On April 20, 1987, a notice to proceed/mobilize was issued by the Department to Ms. Allen.

      
      

   8. On or about April 29, 1987, Ms. Allen mobilized.

      
      

   9. Work on the project began on May 11, 1987.

      
      

   10. The first work performed on the project pursuant to the schedule of work to be performed was the removal of the existing roof and the placement of a temporary roof on the Armory.

       
       

   11. On May 20, 1987, Ms. Allen submitted a pay request to the architect for the project, Mr. Shafer. This request was forwarded to Thomas Berley, a project director for the Department. Mr. Berley received the request on May 26, 1987. Upon receipt of the request, Mr. Berley notified Mr. Shafer that Ms. Allen needed to provide the Department with a bar chart showing work progress on the project before the pay request could be processed. Efforts were then begun to try to locate Ms. Allen to inform her of this requirement.

       
       

   12. Mr. Berley was informed by Mr. Shafer that Ms. Allen could not be located. Therefore, Mr. Berley telephoned Ms. Allen's place of business in Tallahassee. Her telephone had been disconnected.

       
       

   13. Mr. Berley instructed another project director of the Department located in Tallahassee to go the Respondent's office. Mr. Berley was advised that no one was at the office.

       
       

   14. Ms. Allen's subcontractors were contacted in an effort to reach Ms. Allen. Mr. Berley was informed that the subcontractors could not locate Ms. Allen either and that no contact had been made by them with Ms. Allen since May 26, 1987.

   15. Mr. Berley received a copy of a June 2, 1987, letter from Mr. Shafer to Ms. Allen requesting that she contact him.

       
       

   16. On June 4, 1987, Mr. Berley sent a letter to Ms. Allen advising her of obligations and giving her seven days to indicate why she was not on the job. This letter was sent certified mail and was signed for on June 11, 1987.

       
       

   17. Work on the project stopped during early June, 1987.

       
       

   18. A third and final letter seeking to contact Ms. Allen was sent to Ms. Allen but was returned unopened.

       
       

   19. Because of the failure of Ms. Allen to contact the Department or the project's architect and because of concerns about the ability of the temporary roof to prevent water damage, the contract for reroofing the Armory was terminated at midnight, June 14, 1987.

       
       

   20. The concerns about the ability of the temporary roof to prevent water damage to the Armory were legitimate concerns. A temporary roof is only intended to keep water out for a short period of time. Work on the project should not have been stopped while the temporary roof was on the Armory. Failure to pay the pay request would not justify Ms. Allen's actions.

       
       

   21. On June 16, 1987, Ms. Allen contacted Mr. Berley by telephone. Mr. Berley notified Ms. Allen that the Armory contract had been terminated.

       
       

   22. On June 19, 1987, the Department received a proposal to finish the project using Ms. Allen's subcontractors. The cost of completing the project was $8,000.00-$9,000.00 more than Ms. Allen's bid price.

       
       

   23. Leaving a temporary roof on the Armory for three weeks was excessive. Once work began on this project, the work should have proceeded continuously until the new roof had been completed. While the temporary roof was on the Armory excessive damage could have occurred resulting in structural damage as well as cosmetic damage. Ms. Allen's actions constituted abandonment of the job.

       
       

   24. Ms. Allen's actions also constituted incompetence in the practice of contracting.

       
       

   25. Ms. Allen has previously been issued a letter of guidance from the Construction Industry Licensing Board.

       
       

       CONCLUSIONS OF LAW

       
       

   26. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

       
       

   27. This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Because Ms. Allen's license is at stake, the evidence to support the charges against her must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

       
       

   28. Section 489.129(1), Florida Statutes, 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.

       
       

   29. In the Administrative Complaint filed against Ms. Allen in this case, Ms. Allen has been charged with violating the following prohibited acts of Section 489.129(1), Florida Statutes:

       
       

       (k) 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.

       (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

   30. The evidence in this case proved that Ms. Allen abandoned the Armory project. Because there was a temporary roof on the Armory, work on the project should have proceeded continuously until the new roof was completed. Leaving a temporary roof on the Armory for three weeks was excessive and the Department properly treated Ms. Allen's absence as an abandonment of the project. The evidence also probed that Ms. Allen was guilty of incompetency in the practice of contracting.

       
       

   31. Ms. Allen has, therefore, violated Sections 489.129(1)(k) and (m) , Florida Statutes, as alleged in the Administrative Complaint.

       
       

   32. Rule 21E-17.001, Florida Administrative Code, provides absent aggravating or mitigating circumstances, a fine of from $500.00 to $2,000.00 may be imposed on a licensee for a first violation of Sections 489.129(1)(k) and (m)

, Florida Statutes. Rule 21E-17.002, Florida Administrative Code, list aggravating and mitigating circumstances which are to be considered. No mitigating circumstances have been proved in this proceeding. Among the aggravating circumstances pertinent in this case are the fact that Ms. Allen's actions caused monetary damage and she did not correct incompetency.

Accordingly, the fine of $2,500.00 requested by the Petitioner is proper.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Sylvia V. Allen be found guilty of having violated

Sections 489.129(1)(k) and (m) , Florida Statutes. It is further

RECOMMENDED that Ms. Allen be required to pay an administrative fine of

$2,500.00 to the Petitioner.

DONE and ENTERED this 1st day of December, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 1st day of December, 1988.

APPENDIX Case Number 88-1997

The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Belinda H. Miller, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Sylvia V. Allen

110 Dixie Drive, D2 Tallahassee, Florida 32304

Fred Seely Executive Director

Department of Professional Regulation

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001997

Orders for Case No: 88-001997