STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0743

)

WILLIE WHITTINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 25, 1989, at West Palm Beach, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: Willie Whittington, pro se

342 Walker Street

Greenacres City, Florida 34974 STATEMENT OF THE ISSUES

Whether Respondent committed the offenses as alleged in the administrative complaint, and, if he did, what disciplinary action should be taken.

PRELIMINARY STATEMENT

At the final hearing, the Petitioner appeared through counsel and offered as evidence in support of the allegations of the Administrative Complaint the testimony of four witnesses, one of whom was accepted as an expert witness in general contracting practices, and nine documentary exhibits. Respondent testified on his own behalf and introduced two documentary exhibits. All exhibits were accepted into evidence. The two documentary exhibits submitted by Respondent, blueprints of the project in question, were accepted despite the fact that the exhibits do not comply with the size requirements of Rule 22I- 6.027, Florida Administrative Code. These oversized exhibits were accepted because a reduced version of the exhibits would have been very difficult to read.

A transcript of the proceedings was filed on June 8, 1989. Petitioner timely filed a proposed recommended order which contains proposed findings of

fact and proposed conclusions of law. The Respondent has not filed any post- hearing documents. All findings of fact proposed by the Petitioner are addressed in the appendix attached to this recommended order.

FINDINGS OF FACT

Based on the evidence received at the final hearing, the following findings of fact are made.

1. At all times material to this case the Respondent, Willie Whittington, was licensed as a certified general contractor in the State of Florida, holding license number CG C006966.

   
   

2. At all times material to this case the Respondent was the sole qualifying agent for Whittington & Sons Builders, Inc.

   
   

3. On May 15, 1987, Edwin W. Brown and Sandra J. Brown, husband and wife, contacted Respondent, in response to Respondent's advertising, to discuss the construction of a log house and an outbuilding on a lot owned by the Browns in Palm Beach County, Florida. The outbuilding was to be used as a combination garage and barn.

   
   

4. During this initial meeting, the Browns described the project to Respondent. At the conclusion of the meeting on May 15, 1987, the Browns gave Respondent a $2,000.00 deposit to get started on the project. Respondent was to use that deposit to have plans drawn for the two buildings and to secure the necessary building permits.

   
   

5. On June 23, 1987, Whittington & Sons Builders, Inc. entered into two contracts with the Browns, one for the house and the other for the outbuilding. Respondent signed both contracts on behalf of Whittington & Sons Builders, Inc. Both contracts were clear and unambiguous as to the work that was to be performed, as to the price that was to be paid for the work, and as to the schedules by which the construction draws would be made. The price for the house was set at $73,506.00. The price of the outbuilding was set at

   $11,665.00. Both contracts provided that construction would be completed within

   130 days.

   
   

6. On June 23, 1987, the Browns paid to Respondent the sum of $6,871.60 as required by the two contracts.

   
   

7. Sandra Brown began keeping a log of her contacts with Respondent as of August 4, 1987, because she had experienced difficulty reaching Respondent by telephone and because no progress was being made on the project.

   
   

8. Around August 4, 1987, Respondent told the Browns that he needed an additional $175.00 to pay to the architect to complete the plans. Because this was not provided for by their contracts, the Browns refused Respondent's request for this additional sum of money.

   
   

9. On August 7, 1987, the Browns paid to Respondent the sum of $3,822.90 that Respondent was to use to order the logs.

   
   

10. The building permits were not obtained until October 9, 1987. The permits were not obtained earlier than that date because Respondent did not diligently pursue his obligation to get the permits.

11. As of early November 1987, the only work that had been done was the preparation of the lot for the foundation.

    
    

12. On November 7, 1987, Respondent requested that the Browns advance him

    $5,000.00 so he could proceed with the construction. Respondent was financially unable to proceed because the Internal Revenue Service had garnished the account in which Respondent had placed the Browns' deposits. The Browns refused to advance Respondent this additional sum of money, but they remained willing to pay Respondent according to the draw schedules of the contracts.

    
    

13. In December 1987 the Browns received a notice to owner form from Rinker Materials. In response to this notice, the Browns paid to Rinker Materials the sum of $2,664.77 and asked that no further materials be delivered on a credit basis to the job site. The Browns received a release of lien from Rinker Materials on December 28, 1987, for the materials Respondent had previously ordered on credit.

    
    

14. In the middle of December 1987, the Browns learned that Respondent had neither ordered the logs for the construction nor determined the quantity of logs that would be required.

    
    

15. On or about December 18, 1987, the foundation for the house was poured. Little work was done on the project between that date and January 4, 1988, the date Respondent told the Browns that his back was hurt and he could not work.

    
    

16. The Browns filed a written complaint with the Palm Beach County Contractors Certification Board on January 8, 1988. As of January 13, 1988, Respondent was unable to account for the funds the Browns had deposited with him.

    
    

17. At a meeting on January 19, 1988, among Respondent, the Browns, and a representative of Palm Beach County Contractors Certification Board, Respondent agreed to furnish receipts and an accounting of the construction funds by the next meeting on January 27, 1988.

    
    

18. Respondent also agreed, during the meeting of January 19, 1988, to perform certain work on the project before the next meeting.

    
    

19. At the next meeting, Respondent did not provide the Browns with receipts or with an accounting of the construction funds. Instead Respondent submitted a non-itemized bill in the amount of $18,131.20 for labor and materials supposedly expended by Respondent through January 27, 1988. The Browns refused to pay this bill.

    
    

20. Respondent had worked only approximately 16 hours on the project between January 19 and January 27 and had not completed the additional work he had promised to have done January 27, 1988.

    
    

21. The Browns fired Respondent and his company on January 27, 1988. At that time, Respondent had completed approximately 10% of the project `whereas it should have been approximately 60-70% completed. The delays by Respondent throughout his association with this project were not justified.

22. After the Browns fired Respondent, they were forced to pay a materialman, MacMichael Lumber Company, to prevent the foreclosure of a lien against the property. This lien resulted because Respondent did not pay for certain materials he had ordered on credit before the Browns fired him.

    
    

23. On February 4, 1988, Respondent agreed to repay the Browns the sum of

    $4,200.00. As of the date of the final hearing, Respondent owed the Browns

    $1,400.00.

    
    

24. A subsequent contractor completed the project without undue delay in June 1988 for an additional $74,000. This price reflects changes the Browns made after the subsequent contractor began his work.

    
    

25. Petitioner is the state agency charged with the regulation of contractors in the State of Florida.

    
    

26. The Administrative Complaint filed by Petitioner against Respondent alleges, in pertinent part, the following:

    
    

    1. Respondent failed to perform in a reasonably timely manner, and or abandoned said job(s), in violation of 489.129(1)(m),(k).

    2. There was financial mismanagement and/or misconduct in connection with this matter, attributable either to Respondent directly,

       or to Respondent's failure to properly supervise, in violation of Section 489.129(1)(h) & (m), as generally exhibited by, but not limited to, the following:

       Subject double billed Customer on several occasions; failure to pay subcontractors and suppliers; and failure to buy materials.

       
       

27. There was no allegation in the Administrative Complaint or evidence presented at hearing that Respondent has been the subject of prior disciplinary action. Respondent has been licensed as a certified general contractor by the State of Florida since 1973.

    
    

28. Following receipt of the Administrative Complaint, Respondent denied the violations and timely requested a formal administrative hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

30. Section 489.129(1), Florida Statutes, authorizes the Department of Professional Regulation, Construction Industry Licensing Board, to take disciplinary action against a general contractor such as Respondent and provides, in pertinent part, as follows:

    
    

    (1) The board may 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, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

    * * *

    (h) Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

    1. Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond, within 30 days after the date of such liens.

    2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract

       price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess within

       30 days after the date the job is abandoned.

    3. The contractor's job has been completed, and it is shown that the customer has had to pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such

    increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.

    * * *

    (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.

31. The Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

32. Petitioner has proved by clear and convincing evidence that Respondent has violated Section 489.129(1)(m), Florida Statutes. Respondent's unwarranted delay in performing the contract establishes his incompetency or misconduct in the practice of contracting. Respondent's inability to perform the contract because of the manner in which the draw schedule was structured also establishes his incompetency in the practice of contracting. Respondent's financial irresponsibility in regards to this project in failing to promptly pay for materials ordered on credit and in placing his customers' deposits in an account that was subject to garnishment establishes his incompetency in the practice of contracting.

    
    

33. Petitioner has proved by clear and convincing evidence that Respondent has violated Section 489.129(1)(h), Florida Statutes. Respondent permitted a lien to be recorded against the property. The customers had to pay the materialman to prevent the foreclosure of that lien. Also, Respondent accepted funds from his customers for which he was unable to account after he was fired from the project.

    
    

34. Petitioner has not proved by clear and convincing evidence that Respondent abandoned the job in violation of Section 489.129(1)(k), Florida Statutes. Respondent continued to work on the project until he was fired. His inexcusable delay in performing the work he contracted to do constitutes incompetency or misconduct in the practice of contracting as opposed to an abandonment of the work.

    
    

35. Respondent bears the responsibility in this case under Section 489.129(1), Florida Statutes, even though the contracts were executed on behalf of Whittington & Sons Builders, Inc. because Respondent is the qualifying agent for that company.

    
    

36. Rule 21E-17.001, Florida Administrative Code, which contains the guidelines to be followed in disciplinary cases such as this, provides, in pertinent part, as follows:

    
    

    21E-17.001 Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

    * * *

    (10) 489.129(1)(h): Diversion of funds. First violation, $750 to $1500 fine;

    * * *

    1. 489.129(1)(m): Gross negligence, incompetency, and/or misconduct, fraud or deceit.

       1. causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation $250 to $750 fine;

          * * *

       2. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1500 fine;...

    
    

37. Rule 21E-17.002, Florida Administrative Code, lists certain circumstances which may be considered for the purposes of mitigation or aggravation of the penalty provided under Rule 21E-17.001, Florida Administrative Code. Rule 21E-17.002, Florida Administrative Code, provides as follows:

    
    

    21E-17.002 Aggravating and Mitigating Circumstances. Circumstances which may be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

    1. Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)

    2. Actual job-site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.

    3. The severity of the offense.

    4. The danger to the public.

    5. The number of repetitions of offenses.

    6. The number of complaints filed against the licensee.

    7. The length of time the licensee has practiced.

    8. The actual damage, physical or otherwise, to the licensee's customer.

    9. The deterrent effect of the penalty imposed.

    10. The effect of the penalty on the licensee's livelihood.

    11. Any efforts at rehabilitation.

    12. Any other mitigating or aggravating circumstances.

    
    

38. The penalty ranges contained in Rule 21E-17.001, Florida Administrative Code, should be applied without aggravation or mitigation. This is a serious violation that resulted in monetary damages to the licensee's customers. Those aggravating circumstances are counterbalanced by mitigating circumstances. Respondent has been a licensed general contractor for 26 years without prior violation. Respondent has made good faith efforts to repay his customers. The penalty to be recommended will have a significant deterrent effect on Respondent and may affect his livelihood.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of

having violated Section 489.129(1)(h), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation and which further finds Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation so that the total fine to be imposed against Respondent is

$3,000.

DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida.

CLAUDE ARRINGTON

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 7th day of July, 1989.

APPENDIX CASE NO. 89-0743

The proposed findings of fact submitted by Petitioner are addressed as follows.

1. Addressed in paragraph 1.

2. Addressed in paragraph 27.

3. Addressed in paragraph 3. 4-5. Addressed in paragraph 4.

1. Addressed in paragraph 5.

2. Addressed in paragraph 6.

3. Rejected as being unnecessary to result reached.

4. Addressed in paragraph 7.

5. Addressed in paragraph 8.

6. Addressed in paragraph 9.

7. Rejected as being subordinate to the conclusions reached.

8. Addressed in paragraph 10.

14-15. Rejected as being subordinate to the conclusions reached.

1. Addressed in paragraph 12.

2. Addressed in paragraph 17.

3. Rejected as being unnecessary to result reached.

4. Addressed in paragraph 14.

5. Addressed in paragraph 15.

6. Addressed in paragraph 15.

7. Addressed in paragraph 16.

22-26. Rejected as being subordinate to the conclusions reached.

1. Addressed in paragraph 17.

2. Addressed in paragraph 19.

3. Addressed in paragraph 23.

4. Rejected as being subordinate to the conclusions reached.

5. Addressed in paragraph 24.

6. Rejected as being subordinate to the conclusions reached.

7. Addressed in paragraph 22.

34-35. Rejected as being recitation of testimony and as being subordinate to the conclusions reached.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

Willie Whittington

342 Walker Street

Greenacres City, Florida 34974

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

Jacksonville, Florida 32201

Kenneth Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs CASE NO.: 97052

DOAH CASE NO.: 89-0743

WILLIE WHITTINGTON, LICENSE NO.: CG C006966,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 12, 1989, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Ray Shope. The Respondent appeared pro se at the board meeting.

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

FINDINGS OF FACT

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

   
   

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 in toto.

   
   

3. Respondent is guilty of violating Section 489.129(1)(h), and (m), Florida Statutes.

4. The exceptions filed by the Petitioner to the hearing officer's recommended penalty are rejected as unsupported by the record or the Board's findings and conclusions.

   
   

5. The penalty recommended by the hearing officer is rejected for the reasons stated on the record at the board meeting.

   
   

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

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

That the Respondent shall pay a fine of one thousand dollars ($1,000.00) to the Construction Industry Licensing Board within thirty (30) days of the imposition of this Final Order of the Board.

Respondent shall be on probation from the date of the Final Action herein, for one year. Respondent shall make probation appearances before the Board in the months of June 1990 and December 1990. At said appearances Respondent shall stand for questions from the Board as to his firm's operations and finances, and shall supply the Board with such financial reports and other papers as the Board may require.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail it to the Board offices.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 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 16th day of February, 1990.

MIKE BLANKENSHIP, 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 U.S. Mail to

(no addresses noted)

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 p.m., this 16th day of February 1990.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk Clerk Date: February 16, 1990

Docket for Case No: 89-000743

Orders for Case No: 89-000743