STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-1168

)

KERRY D. WEBSTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly Designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 12, 1989 in Clearwater, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Kerry D. Webster, pro se

7574 Cumberland Court

Largo, Florida 34647 STATEMENT OF THE ISSUE

Whether or not Respondent has been disciplined by the Hernando County Licensing Board and if so, what administrative penalty is appropriate.

PRELIMINARY STATEMENT

By its administrative complaint filed herein dated January 11, 1989, Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, seeks entry of an order imposing disciplinary sanctions against Kerry D. Webster, Respondent herein, for having been the subject of disciplinary action by a local government in violation of Section 489.129(1)(i), Florida Statutes. Respondent timely requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, the matter was referred to the Division of Administrative Hearings for formal proceedings pursuant to Section 120.57(1), Florida Statutes.

On March 21, 1989, the matter was noticed for hearing for May 12, 1989 and was heard as scheduled. Petitioner has filed a proposed recommended order which was considered in preparation of this recommended order and is substantially incorporated in the recommended order.

Petitioner presented the testimony of Rose Mattingly and James Fredricks, employees of the Hernando County Building Department and Respondent testified on his own behalf.

Petitioner offered exhibits 1-6 which were received in evidence at hearing.

FINDINGS OF FACT

1. The Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), is the state agency charged with regulating the construction industry in Florida.

   
   

2. Kerry D. Webster, Respondent herein, is a certified building contractor having been issued license number CB-C028116 and was so licensed during times material hereto.

   
   

3. During times material hereto, Respondent was the sole qualifying agent for Alexander Green Company.

   
   

4. On April 26, 1988, Respondent was disciplined by the Hernando County Building Department at a disciplinary hearing which Respondent attended. The Hernando County disciplinary proceeding case was prepared by Rose Mattingly, an employee of the Hernando County Building Department whose duties include preparation of cases to be heard by the Board and that case was presented by Jim Fredricks, license inspector of the Hernando County Building Department.

   
   

5. Respondent was charged with and found guilty of failing to make proper payment to materialmen, subcontractors, and laborers in connection with construction work; employment of persons who do not possess the required county and/or state licenses in their respective vocation or trade; willful and deliberate disregard and violation of the prevailing regulations and laws of Hernando County; negligence, incompetency or misconduct while engaged in the business of acting in the capacity of a contractor; and violating other provisions of the Hernando County building code, rules and regulations.

   Hernando County received thirteen (13) complaints respecting liens against Respondent in the total amount of approximately $47,000 covering dates from April 19, 1987 through April, 1988. (Petitioner's exhibit 4). In addition, Respondent had also been the subject of earlier claims of lien filed by suppliers and subcontractors in the approximate amount of $82,960.99. (Petitioner's Exhibit 1). Respondent acknowledged that, as the sole qualifying agent for Alexander Green Company, he is responsible for the contracting activities of that company. The above disciplinary action stemmed from Respondent's contracting activities through Alexander Green Company.

   
   

6. Based on the disciplinary action by the Hernando County Building Department, Respondent's permitting privileges were suspended for six months effective 8:00 a.m. on April 28, 1988.

   
   

7. In mitigation, Respondent had a difficult time obtaining draws from work that he completed for Alexander Green. Respondent is making arrangements to repay some subcontractors who have not been paid. However, Respondent failed to demonstrate that he has made any attempt to repay or to otherwise defray the losses sustained by his customers. In this regard, Hernando County attempted to amicably resolve complaints that it received against Respondent prior to initiating formal disciplinary proceedings, to no avail.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 489.129(1), Florida Statutes authorizes the Construction Industry Licensing Board to take disciplinary action against a licensed contractor to include revocation, suspension, denial or failure to renew a certificate or registration and/or imposition of an administrative fine if the contractor is found guilty of any of the following acts:

   
   

   489.129(1)(i) ... disciplinary action by any municipality or county, which actions shall be reviewed by the state board before the state board takes any disciplinary action of its own.

   
   

10. Petitioner demonstrated clear and convincing evidence that Respondent was disciplined by the Hernando County Building Department and for such disciplinary action, Respondent's permitting privileges were suspended for six months. This action was reviewed by Petitioner prior to the initiation of the subject disciplinary proceeding. See Section 489.129(1)(i), Florida Statutes.

    
    

11. In the section listing the guidelines for recommended civil penalties for failure to pay subcontractors in Florida Administrative Code Rule 21E- 17.001(j), Petitioner may impose an administrative fine in the range of $750 -

$1500. Further, Florida Administrative Code Rule 21E-17.001(s), provides that the Petitioner may impose an administrative fine against a contractor in the amount of $500 - $1500 for causing monetary or other harm to a licensee's customer. Finally, Florida Administrative Code Rule 21E-17.001(t), provides that the Petitioner may impose an administrative fine in the range of $250 -

$750 for a contractor who is found to be in violation of state and local laws.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that:

1. Petitioner enter a final order placing Respondent's certified building contractor's license on probation for a period of five (5) years.

   
   

2. Respondent pay an administrative fine of $1,000, which amount shall be payable to Petitioner within 30 days of entry of the final order. 1/

DONE and ORDERED this 31st day of July, 1989 in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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.

ENDNOTE

1/ Considering the mitigating factors, this recommended penalty comports with the guidelines in Chapter 21E-17, Florida Administrative Code.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

(904) 488-0069

Kerry D. Webster

7574 Cumberland Court

Largo, Florida 34647

Fred Seely, Executive Director Construction Industry Licensing Board

111 East Coastline Drive Post Office Box 2 Jacksonville, Florida 32202

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-001168

Orders for Case No: 89-001168