STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5192

)

MICHAEL W. BALLANS )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on March 14, 1990, in St. Cloud, Florida.

APPEARANCES

For Petitioner: Jack L. McRay, Esquire

Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.

PRELIMINARY STATEMENT

Respondent, Michael Ballans, requested a formal hearing in response to the Administrative Complaint dated July 24, 1989.

After the case was referred to the Division of Administrative Hearings, Michael Ballans responded to a routine notice regarding scheduling the hearing with a suggestion that the hearing be conducted by mail, with sworn statements and "investigation by DOAH", because he was in Michigan.

Counsel for Petitioner objected in writing, with copy to Respondent, and the hearing was scheduled for St. Cloud, where the alleged violations occurred and witnesses, other than Respondent, reside.

No further communication from Respondent was received by the Division of Administrative Hearings.

Several days prior to the scheduled hearing it became necessary for the Hearing Officer to adjust the starting time for the hearing, due to a conflict with another case. The hearing had to commence at 2:00 p.m., rather than 10:00

1. Attempts were made to contact Respondent, but his phone in Michigan had been disconnected, and no listing could be found in the Orlando/St. Cloud area nor at the prior Michigan address.

   
   

   Appropriate persons at the St. Cloud City Hall were alerted, and a sign was placed on the hearing room door regarding the change. Petitioner's counsel and witnesses were informed of the change.

   
   

   When the Hearing Officer arrived at the City Hall at approximately 1:45 p.m., she was informed that Michael Ballans had called and had left a telephone number from Michigan. The Hearing Officer attempted to reach Mr. Ballans and spoke to his son who said he would return any minute. The Hearing Officer left the message that she and counsel for Petitioner would attempt to call him again in fifteen minutes, and if he had not returned the hearing would proceed.

   
   

   In fifteen minutes, Michael Ballans had not returned, and the hearing commenced. Petitioner's counsel was present with witnesses and with the court reporter.

   
   

   Around 2:30 p.m., a message was brought to the hearing room that Michael Ballans was on the phone. The hearing was recessed and the Hearing Officer, with Counsel for Petitioner on the other line, took the call in the office of the City Manager.

   
   

   Michael Ballans explained that he received notice of the hearing, that he moved and changed his telephone, but that he had "spoken to someone" about doing the hearing by mail or phone as he could not afford to come for the hearing. It was not clear with whom he had spoken, but it was neither the Hearing Officer nor Counsel for Petitioner.

   
   

   The Hearing Officer stated that the facility was not set up for a telephone conference hearing and that Respondent's request was untimely. Respondent was given the opportunity to make a statement, proffering his defense.

   
   

   He stated that his defense was that the money he received from the customer was used to purchase materials, that the materials were delivered to the job site. His business assets were depleted by a divorce and he did not complete the job. He would "make things right" but just could not return to Florida right now.

   
   

   After terminating the call from Respondent, the Hearing Officer reconvened the hearing.

   
   

   Petitioner presented the testimony of two witnesses, Herbert Earl Fisher and Stanton Alexander. Four exhibits were received in evidence: the certified license file, the contract, photo copy of the payment check, and Respondent's licensee questionnaire response.

   
   

   After hearing, no transcript was filed and neither party submitted proposed recommended orders.

   FINDINGS OF FACT

   
   

   1. At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769.

      
      

   2. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor.

      
      

   3. Fisher made an initial payment of $1,018.00 on June 6, 1988.

      
      

   4. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance.

      
      

      Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property.

      
      

   5. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices.

      
      

   6. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job.

      
      

      Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work.

      
      

      Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S. and to Section 455.225(4), F.S.

      
      

   8. Section 489.129, F.S. provides in pertinent part:

      
      

      489. 129 Disciplinary proceedings

      (1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000, place a contractor on probation, require

      continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under section 489.1195, is found guilty of any of the following acts:

      (c) Violating chapter 455.

      * * *

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

      * * *

   9. 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 funds within 30 days after the date the job is abandoned.

      * * *

      (k) Abandoning 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) Being found guilty of fraud

      or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

      * * *

      
      

   10. In addition to the above-cited sections, the administrative complaint alleges that Respondent violated Section 455.227(1)(a), F.S., by having made "misleading, deceptive, untrue, or fraudulent representation in the practice of his profession."

       
       

   11. The Department of Professional Regulation has the burden of proving by clear and convincing evidence that the alleged violations occurred. Ferris v. Turlington, 510 So2d 292 (Fla 1987).

   12. The evidence presented by the Department in this proceeding proves the alleged violations, with the exception of the violations of Section 455.227, F.S., and 489.129(1)(c), F.S. There is no evidence that Respondent lied or misrepresented his capacity to perform at the time that he entered a contract with the Fishers. His financial misfortune and incapacity to complete the job could have been manifested sometime after the contract was negotiated.

       
       

   13. Although several violations of Chapter 489, F.S. occurred, each arises from a single transgression. The penalty recommended below is within the ranges found in the Board's disciplinary guidelines in Chapter 21E-17, F.A.C., for a first, single violation.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED

That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00.

DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida.

MARY CLARK

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 16th day of April, 1990.

COPIES FURNISHED:

Jack L. McRay, Esquire

Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Michael W. Ballans

2314 Knob Hill Drive, Apt. #12

Okemos, Michigan 48864

Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Fred Seely, Executive Director DPR-Construction Industry Licensing Board

P.O. Box 2 Jacksonville, FL 32202

Docket for Case No: 89-005192

Orders for Case No: 89-005192