STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-1166

)

CARL F. DOYLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division-of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on May 3, 1989, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Elizabeth Alsobrook, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Carl F. Doyle, pro se

5 Stiles Lane

Palm Harbor, Florida 34683 STATEMENT OF THE ISSUES

Whether Respondent is guilty of doing business under a name not on his license and for which he did not qualify, in violation of Sections 489.129(1)(g), (j), Florida Statutes.

Whether Respondent is guilty of gross negligence, incompetence, misconduct, and/or deceit in the practice of contracting, in violation of Sections 489.129(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

Respondent is a certified building contractor licensed by Petitioner.

Charged by Petitioner in an administrative complaint with numerous violations of Chapter 489, Florida Statutes, the Respondent requested a formal administrative hearing. This proceeding followed.

At hearing, the Petitioner presented testimony of three witnesses and twelve evidentiary exhibits. The Respondent testified himself and presented

eight exhibits in evidence. The Respondent was granted leave to submit a post hearing exhibit which has been marked and admitted as Respondent's Exhibit 9, in evidence. The transcript of the proceedings was filed on July 3, 1989 with the Division. Proposed findings of fact submitted by the Petitioner and Respondent are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Carl F. Doyle, hereinafter referred to as Respondent, is licensed as a certified building contractor holding license number CB C015518 in the State of Florida. At all times material to this action the Respondent was licensed, and his address of record is Palm Harbor, Florida.

   
   

2. The Department of Professional Regulation, Construction Industry Licensing Board, was and is the state agency charged with the regulation of contractors in the State of Florida.

   
   

3. Respondent has never been the qualifying agent for Plantara Building Corporation, hereinafter referred to as Plantara.

   
   

4. Janet Lee Valente was the qualifying agent for Plantara from December 1986 until October 1987.

   
   

5. Respondent is and was the registered agent and director for Plantara at all times material to this action.

   
   

6. Respondent negotiated the construction contract between Plantara and Jackie Evans and her daughter, Michelle Renee Evans.

   
   

7. Respondent's license number was used to obtain the building permit for the Evans' home.

   
   

8. The Evans and Plantara entered a contract to construct a new home in Pinellas County on March 29, 1986.

   
   

9. In August 1986, construction of the Evans home began.

   
   

10. Mrs. Jackie Evans noted a discrepancy in the plumbing which was corrected prior to pouring the slab. The plumbing discrepancy related to changes in the kitchen and bathroom requested by Mrs. Evans. Mrs. Evans had presented her request for changes to Respondent in March 1986.

    
    

11. As construction proceeded, Mrs. Evans noted that her kitchen had a wall where an "island" should be. This was not corrected.

    
    

12. A tub was put in the master bathroom and had to be removed because Mrs. Evans had requested a shower.

    
    

13. In May of 1987, Mrs. Evans "closed" on the house but submitted to Respondent a list of several items to be repaired or completed.

    
    

14. Plantara had access to Mrs. Evans home to complete the job but would often not keep appointments as scheduled.

15. Prior to closing on her home in May 1987, Mrs. Evans had advised Plantara of items she desired to be corrected.

    
    

16. After the May 1987 closing on the home, Mrs. Evans wrote Plantara again regarding items to be corrected or finished on her home. The gas dryer vent terminated in the attic, and not through the roof; a leak in the fireplace and the reversal of hot and cold water in the guest bathroom were three of the items to be corrected. Plantara corrected the problem with the water in the guest bath, a code violation, immediately. However, they failed to correct the gas dryer venting violation.

    
    

17. As of the date of the hearing, there were numerous items still not corrected or repaired by Plantara. However, Mrs. Evans and Plantara reached a monetary settlement in April 1989 in which Plantara waived its claim of $5,000 under the contract in exchange for the Evans' release from liability.

    
    

18. A letter of commitment for FHA financing was not received until December 23, 1986.

    
    

19. The home received a certificate of occupancy on February 24, 1987. (T. pg. 20). There were numerous items to be corrected as of the closing date in May 1987 and as of the hearing date there remained items from the "list" which had not been corrected and/or repaired.

    
    

20. Larry Wilson, Pinellas County Department of Consumer Affairs, observed leaks in the fireplace, uneven tile in the bathroom shower, closet doors not fitting properly, sloppy painting, bedroom windows not closing properly, siding loose, and patio concrete cracked when he inspected the home in November, 1987. Mr. Wilson stated that Mrs. Evans complaints were legitimate.

    
    

21. Mr. Jerry Hicks, an expert in construction practices in Florida, testified that a "punchlist" such as Mrs. Evans list is usually completed within

    30 days or sooner after the "closing" The contractor is responsible to complete the punchlist as the contractor is "charged with supervising the work.'

    
    

22. Mr. Hicks opined that Respondent should have immediately responded to the problem with the dryer vent. In fact, when Mrs. Evans contacted the subcontractor, the problem was immediately corrected by the subcontractor. This indicates that Respondent had exercised little supervision over the subcontractors. (T. pg. 104, 116).

    
    

23. Respondent had from February 1987 (the date of the certificate of occupancy) until May 1987 (the date of the "closing") to correct the punchlist. Respondent was unresponsive to the customer, and was not reasonably timely in completion of the punchlist.

    
    

24. Respondent did not supervise the job as industry standards require.

    
    

25. Respondent has been previously disciplined twice by the Construction Industry Licensing Board.

    
    

26. Respondent offered in mitigation that the job was undertaken as a "favor" to the Evans and therefore they should have expected low priority treatment. However, as a mitigation gesture, the Respondent waived his right to receipt of the remaining $5,000 payment from the property owners.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Sections 120.57(1), Florida Statutes.

    
    

28. Pursuant to Section 489.129(1), Florida Statutes, the Construction Industry Licensing Board is empowered to take disciplinary action against a licensed contractor and provides in pertinent part as follows:

    
    

    The Board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor ... is guilty of any of the following acts:

    
    

    489.129(1)(g): Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

    
    

    489.129(1)(j): Failure in any material respect to comply with the provisions of this act.

    
    

    489.129(1)(m): Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

29. Section 489.105(4), Florida Statutes, defines a "qualifying agent" as the person who ... has the responsibility to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected ...

30. Section 489.119, Florida Statutes, provides in pertinent part: (1) ...

    (2) If the applicant proposes to engage in contracting as a ... corporation, or other legal entity, the applicant shall apply through a qualifying agent; ... the applicant shall state the name of the corporation and of its officers and directors, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if a fictitious name is used. Such application shall also show that the qualifying agent is legally qualified to

    act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization. The registration or certification, when issued upon application of a business organization shall be in the name of the qualifying agent, and the name of the business organization shall be noted thereon ...

    (3)(a) The qualifying agent shall be certified or registered under this act in order for the business organization to be certified or registered in the category of the business conducted for which the

    qualifying agent is certified or registered...

    
    

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

    
    

32. The evidence is clear and convincing that Respondent, acting as Plantara Building Corporation, entered into a contract to construct a new home for Michelle Evans and Jackie Evans on March 1986. Janet Valente did not become the qualifying agent for Plantara until December 1986, several months after Respondent entered into the contract. In fact Respondent was the actual contractor for the Evans' home.

    
    

33. The evidence is clear and convincing that Respondent was grossly negligent in this matter by claiming that Plantara was qualified by a licensed contractor when the contract was entered into, and that he was the qualifying agent during construction, whereas Janet Valente was the qualifying agent during part of the construction period.

    
    

34. The evidence is clear and convincing that Respondent failed to supervise the construction of Mrs. Evans home by failing to convey approved changes in the design of the house to the subcontractors prior to the commencement of construction, failed to correct a fireplace leak, improperly installed a gas dryer by not properly venting the dryer, and failed to complete the punchlist after closing in a reasonably timely manner, contrary to the requirements of Section 489.129(1)(m), Florida Statutes.

    
    

35. The evidence is clear and convincing that Respondent has been previously disciplined in unrelated cases by the Construction Industry Licensing Board.

    
    

36. The Construction Industry Licensing Board rules provide that the following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances in part: Rule 21E-17.001(a), Florida Administrative Code: 489.129(1)(g), 489:119: Failure to qualify a firm, and/or acting under a name not on license. First violation, letter of guidance; repeat violation,

$250 to $750 fine.

Rule 21E-17.001(s), Florida Administrative Code, 489.129 (1)(m): Gross negligence

1. Causing no monetary harm ..., and no physical harm ... First violation,

   $250 to $750 fine; repeat violation, $1000 to $1500 fine and 3 to 9 months suspension.

   
   

2. Causing monetary or other harm to licensee's customer ... first violation $500 to $1500 fine; repeat violation, $1000 to $5000 fine and suspension or revocation.

There is no guideline penalty for a violation of Section 489.129(1)(j), Florida Statutes.

1. Rule 21E-17.003, Florida Administrative Code, defines repeat violation as "any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; ... (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violation in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

   
   

2. Rule 21E-17.002, Florida Administrative Code, lists some of the aggravating circumstances for the purpose of penalty, including the following:

   
   

   1. The severity of the offense.

      
      

   2. The danger to the public

      
      

      (f) The number of complaints filed against the licensee.

      
      

      (i) The deterrent effect of the penalty. The Respondent has been disciplined before but continues the same standard of practice.

      
      

      (1) Any other ... aggravating circumstances.

      
      

3. Respondent is a repeat violator of the construction practice act. Respondent desires to escape his liability for a job he contracted to perform by blaming another contractor who was not involved with Plantara until after the Respondent entered a contract to build the Evans home, and/or by claiming this job was done as a "favor."

In mitigation, Respondent has foregone $5,000 due under the contract, rather than complete $500 worth of work on the Evans' home.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Respondent be found guilty of violating Sections 489.129(1)(g) and 489.119, Florida Statutes by failing to qualify a firm and that an administrative fine be imposed in the amount of $500. Rule 21E-17.001(a), Florida Administrative Code.

2. Respondent be found guilty of violating Section 489.129(1)(m), Florida Statutes, by gross negligence and misconduct in the practice of contracting which caused monetary or other harm to licensee's customer and that an administrative fine be imposed in the amount of $1,500, and that his contractor's license be suspended for three (3) months.

DONE AND RECOMMENDED this 31st day of July, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 31st day of July, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1166

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:

Paragraphs 1,2,3,4,5,6,7,8,9,10,11,4,15,16,17,18,19 (1st sentence), 20,

22,23,24,25,26,27 (in part), 29 are accepted, except as is irrelevant or subordinate.

Paragraph 21, 28 are not supported by the evidence Paragraph 27 (in part is rejected as a conclusion of law.

RESPONDENT'S PROPOSED FINDINGS:

Paragraph 1 and 3 accepted and incorporated in findings Paragraph 2 rejected as against the weight of the evidence. Paragraphs 4 and 5 accepted in part as grounds for mitigation.

COPIES FURNISHED:

Elizabeth Alsobrook, Esquire Department of Professional Regulation The Northwood Centre

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

Carl F. Doyle

5 Stiles Lane

Palm Harbor, Florida 34683

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32301

Kenneth E. Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-001166

Orders for Case No: 89-001166