STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0182

)

CHARLES E. BEASLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 9, 1989 in Winter Haven, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Charles E. Beasley, Pro Se

Beasley Aluminum

161 Audubon Court S.E. Winter Haven, Florida 33880

BACKGROUND

This matter began when Petitioner charged Respondent, a registered residential contractor, by administrative complaint with various violations of Chapter 489, Florida Statutes, in connection with a contracting job undertaken by Petitioner. The gravamen of Petitioner's charges were that Respondent had failed to obtain required inspections in violation of local law; failed to honor a guarantee given to a customer; and had committed gross negligence, incompetence or misconduct in connection with that contracting job.

At hearing, Petitioner presented testimony of three witnesses and six evidentiary exhibits, Respondent presented testimony of one witness, himself. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. Respondent did not timely submit proposed findings and none had been received at the time of the preparation of this recommended order.

Based upon all of the evidenced including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent is Charles E. Beasley, a registered residential contractor licensed by Petitioner and holding license RR-0034139 at all times pertinent to these proceedings. His address of record is Winter Haven, Florida.

   
   

2. Respondent and Edwin R. Shrader entered into an oral contract in July of 1986. Under terms of the agreement, Shrader agreed to pay Respondent the sum of $1,825 for installation of an aluminum patio cover at Shrader's home. Measuring 12 feet wide and 56 feet long, the patio cover would connect to the roof of the Shrader residence on one side and extend out to shade the patio consisting of a concrete slab covered with a pool deck finish. Wooden posts affixed to metal plates attached to the slab would provide support on the outward side of the cover. Respondent initially erected the patio cover on Saturday, July 12, 1986. He returned the following Monday and was paid by Shrader.

   
   

3. A period of inclement weather consisting of heavy rain storms occurred approximately two to three weeks after Respondent erected the patio cover. After the rain had stopped, Shrader noticed that water was leaking through the patio cover. Respondent returned and attempted to stop the leaks.

   
   

4. A year later, after numerous attempts to stop the water leakage coming through the cover, Shrader discussed with Respondent the possibility of shortening the wood support posts to increase the slant of the patio cover, permit rain water to flow off the cover at a greater rate, and eliminate the possibility that water would pool and leak through the cover. Respondent agreed to try the concept. His workmen arrived on or about July 20, 1987, and, without informing Shrader of their presence, began to pry the metal plates attached to the posts from the patio deck. The workmen then shortened the posts and reattached them to the metal plates and to the patio slab. In the process of removing the plates, approximately $500 in damage occurred to the patio deck finish. Respondent volunteered to provide a wooden facade at the base of each post to cover the damaged area of the patio finish. Shrader refused this option. Respondent then volunteered to have the damage repaired, but never provided such repairs.

   
   

5. Even after shortening the support posts to the patio cover, the leakage continued. During the period between July, 1986 and September, 1988, Shrader contacted Respondent no less than seven times about solving the problem of the leaking patio cover. Respondent offered no response until Shrader complained to Petitioner. After the administrative complaint in this proceeding had been filed, Respondent returned to the Shrader residence and was successful in installing the patio cover to the point that the leakage stopped.

   
   

6. The permit application submitted by Respondent to the Polk County building authorities reveals that plans accompanying the application were approved on July 11, 1986. The date on the line of the application bearing Respondent's signature is unclear; it could be interpreted as either July 11, 12 or 14, 1986. The application was clearly approved for permit issuance on July 14, 1986. The proof also establishes that no inspection of the patio installation by county building authorities was ever requested by Respondent.

   
   

7. The Board of County Commissioners of Polk County, Florida, has adopted, as a local county ordinance, the standard building code promulgated by Southern Building Code Congress International, Inc., which requires issuance of building

   permits prior to initiation of any construction project and inspection of projects upon conclusion of construction.

   
   

8. With the exception of Petitioner's allegation that Respondent did not timely call for the required local inspection of a permitted construction job, Respondent does not dispute the facts asserted in the administrative complaint. With regard to the required inspection, Respondent's testimony in mitigation was that he normally calls for such inspections; feels sure he did so in this case; but has no independent recollection or evidence that such a request was actually made by him. Respondent maintains that application for the construction permit was mailed or provided to county building authorities on July 11, 1986, prior to initiation of construction. While this assertion by Respondent is not controverted by the evidence presented, the evidence did establish that Respondent or his employees were at the work site at least four times after the patio cover was initially installed and no check of the permit was made to see if an inspection of the job had been performed.

   
   

9. Petitioner offered testimony of an expert which establishes that Respondent is guilty of incompetence in the practice of contracting as a result of his failure to properly supervise his workmen's removal of the support beam metal plates from the patio deck in a manner which would not have resulted in damage to the patio finish. The expert testimony further establishes that while the patio cover was eventually properly installed, Respondent demonstrated incompetence in the unreasonable amount of time which elapsed from the initiation of the installation of the cover in July of 1986 until completion through the stoppage of leakage in September of 1988. When questioned about the unreasonable period of time, Respondent admitted that he just assumed that he would eventually solve the leakage problem.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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.

    
    

11. Petitioner bears the burden to establish to by clear and convincing evidence that Respondent is guilty of the offenses charged in the administrative complaint Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. The administrative complaint alleges that Respondent failed to honor a guarantee; that he performed incompetently or incompetently supervised those persons performing the work task under his supervision; and that he failed to obtain all required inspections.

    
    

13. The evidence clearly and convincingly establishes the Respondent, or those under his supervision, performed in an incompetent fashion in violation of Section 489.129(1)(m), Florida Statutes.

    
    

14. Likewise, the evidence clearly and convincingly establishes that Respondent did not obtain all required local inspections, a violation of Section 489.129(1)(n), Florida Statutes.

    
    

15. While Respondent's conduct may well have been violative of a guarantee, the existence of either an express or implied guarantee is not established by the evidence presented. Respondent is not guilty of this allegation of the administrative complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent in violation

of Subsections 489.129(1)(m) and (n), Florida Statutes, (1988) and requiring that Respondent pay an administrative fine of $1,000 in accordance with provisions of Rule 21E-17.001, Florida Administrative Code.

DONE AND ENTERED this 6th day of April, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by Petitioner.

1.-18. Addressed in substance.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Charles E. Beasley Beasley Aluminum

161 Audubon Court S.E. Winter Haven, Florida 33880

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs CASE NO.: 88299

DOAH CASE NO.: 89-0182

CHARLES E. BEASLEY LICENSE NO.: RR 0034139,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on June 15, 1989, in Sarasota, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Ray Shope. The Respondent appeared pro se at the proceedings.

Upon consideration of the hearing officer's Recommended Order, the exceptions filed, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted except where they are contrary to the Petitioner's Exceptions To Hearing Officer's Recommended Order which are hereby approved and adopted in toto for those reasons cited in said exceptions and for those other reasons stated on the record at the above referenced hearing which is also approved and adopted and incorporated by reference.

3. There is competent substantial evidence to support the Board's findings and conclusions.

   
   

4. The Respondent is guilty of violating Chapter 489.129(1)(m), (n), and (j), Florida Statutes.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine of one thousand dollars ($1,000.00) within thirty (30) days.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty

(30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 14th day of July, 1989.

E. E. SIMMONS, CHAIRMAN Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by United States Mail to

Charles E. Beasley

161 Audubon Court SE Winter Haven, FL 33880

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 pm., this 20th day of July 1989.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk

Clerk Date: July 20, 1989

Docket for Case No: 89-000182

Orders for Case No: 89-000182