STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2053

)

PHILLIP GIBSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on August 30, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

For Respondent: Phillip Gibson, pro se

4200 32nd Avenue North

St. Petersburg, Florida 33713 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's certification as a tile and marble specialty contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint.

PRELIMINARY MATTERS

By Administrative Complaint dated March 29, 1995, William J. Owens, Executive Director of the Pinellas County Construction Licensing Board, (Board), seeks to discipline the Respondent's certification as a tile and marble specialty contractor in Pinellas County alleging that Respondent abandoned a job for which he had contracted before the job was completed and before giving full value for the price paid, in violation of Section 24(2)(h)2, Chapter 75-489, Laws of Florida, as amended. Respondent requested formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Myron J. Mensh and introduced Petitioner's Composite Exhibit 1. Respondent testified in his own behalf but presented no documents. No transcript was furnished and neither

party submitted Proposed Findings of Fact. Subsequent to the hearing, Petitioner's representative suggested delay in the preparation of this Recommended Order to allow the parties an opportunity to resolve their dispute without the necessity for formal determination. Sufficient time for such resolution has now elapsed and attempts to determine what, if any, progress has been made regarding those efforts have been unsuccessful.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Pinellas County Construction Licensing Board was the county agency responsible for the certification of contractors in Pinellas County and the regulation of the contracting industry therein. Respondent, Phillip Gibson, was certified by Pinellas County as a tile and marble specialty contractor under license C-6053.

   
   

2. On or about November 8, 1994, Respondent contracted with Myron J. Mensh, a home owner in St. Petersburg, to construct a block wall and apply stone veneer thereto at his residence located at 3018 82nd Way N.

   
   

3. Also included in the agreement was the removal of an existing railroad tie wall and the removal of some dirt retained by the ties. Respondent was the contractor chosen by Mr. Mensh from several who were solicited for the job. Though there was no written contract, the parties agreed on a price of $3,900 for the work to be done and in early November, 1994, Mr. Mensh paid Respondent a deposit of $2,000.

   
   

4. Respondent proceeded to accomplish most of the work called for, and on November 14, 1994, he advised Mrs. Mensh that the work was just about finished. The block wall had been constructed and the stone veneer applied to the top and outside face of the wall. The Menches had made separate arrangements to have the ties removed from the property by someone else, and this saved Respondent an

   $800 fee for their disposal, had he been required to take them to the dump. As it was, the Menshes agreed with some other individual to remove the ties and use them someplace else, and the only expense involved was $50 for the rental of a truck used to haul the ties away. This $50 was, by agreement of the parties, to be deducted from the $3,900 fee for Respondent's services.

   
   

5. Respondent indicates that when he contracted with the Menshes for the work in issue here, they walked the property in advance and at that time there was no talk of putting any stone down the wall inside the planter. Respondent claims that when he walked through the project with Mrs. Mensh when, he claims, it was completed, she agreed that the stone facing on the side of the wall facing the house, which was the retaining wall for flower beds, should not be faced with stone, and the cinder block surface should be left uncovered. He claims she indicated the beds would filled to the top with dirt and there would be no reason to put either stone or stucco over the block. Had Respondent known the Menshes wanted stone down the inside of the planter, he would have extended the stone on the top of the wall out somewhat over the edge to cover the down course of stone. As it was, when the issue was raised, he attempted to place stone down the inside wall with the top exposed and it did not look at all good.

   
   

6. He also claims that when he asked Ms. Mensh where the dirt from behind the ties was to be placed, earlier in the process, she advised him to pile it around the magnolia tree and she would have her gardener remove it to another location for use elsewhere.

7. It would appear that Mrs. Mensh was satisfied with the work done as she advised Respondent to contact Mr. Mensh at his office to pick up the balance due. When he did so, he was paid. However, when Mr. Mensh returned to the home after making payment in full, he was not satisfied that the stone facing was not placed on the block wall inside the flower beds, and that the dirt still remained around the magnolia.

   
   

8. As a result, Mr. Mensh repeatedly called the phone numbers he had for the Respondent in order to get the relief he desired but was unable to reach Respondent. Neither did Respondent return any of Mr. Mensh's calls, even though a female, identifying herself as Mrs. Gibson, said she was taking messages for him. In a December 6, 1994 phone call, this same lady admitted Respondent was in the house but would not take Mensh's call, promising to call back the next day. He did not do so. On December 12, 1994, Mr. Mensh sent Respondent a certified letter which was received, but he received no response. Because of this, he filed the complaint in issue.

   
   

9. The evidence also indicates, and Mr. Mensh admits, that sometime subsequent to completion of the work but before the filing of the complaint, Mr. Mensh solicited the Respondent to cut away some stone around the fireplace inside Mr. Mensh's house to prepare for the installation of a fire screen. Respondent did this, but was unable to pour any concrete for the screen since the screen was not present. When the screen was subsequently delivered by another tradesman, and Mr. Mensh called Respondent to come back to install it, Respondent declined to do so. The preparation of the fireplace for the installation of the screen was not a part of the agreement in issue here, and there is no evidence that Respondent was obligated to do the stone removal or the concrete work around the screen when the screen was put in place.

   
   

10. Mr. Mensh claims now that he paid someone else a nominal fee to have the dirt which was piled around the tree removed, and that is not a problem for him. His dissatisfaction rests with the fact that because the installation of stone over the uncovered bed wall is such a small job, he cannot now get anyone to do it.

    
    

11. Respondent claims that when he cut the stone around the fireplace, after completion of the outside work which forms the basis of the complaint herein, no mention was made by either Mr. or Mrs. Mensh of their now-stated dissatisfaction with the bed wall. He also claims that when he finished the outside work, he carefully cleaned up the work site, removing all excess stone fragments and other materials, excluding the dirt, which, he claims, he was told by Mrs. Mensh to leave around the tree.

CONCLUSIONS OF LAW

12 The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

1. Petitioner alleges that Respondent violated Section 24(2)(h)2, Chapter 75-489, Laws of Florida, as amended, by, having contracted with a property owner to construct a block wall and apply stone veneer and having been paid therefor, thereafter abandoned the job when the percentage of completion was less than the contract price paid.

   
   

2. Under the cited provision, the board may, on its own volition or upon the complaint of any person, investigate the action of a certified or registered

   contractor, hold hearings, and when appropriate, take disciplinary action against the contractor for:

   
   

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

   * * *

   (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 abandon- ment, 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.

   
   

3. The burden of proof in this case is upon the board to establish Respondent's misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

4. The evidence in this case consists of the testimony of Mr. Mensh, the complainant, and Mr. Gibson, the Respondent. In fact there is little in dispute. The evidence is clear that the parties entered into a contract for the construction of the wall which was to be faced by stone and such a wall was constructed. The wall was faced with stone on the outside and on the top but not on the inside of the bed. It is the top of this inside of the wall which, facing the house, constitutes one point of dissatisfaction by Mr. Mensch.

   
   

5. Another point of dissatisfaction is the fact that dirt which was taken from behind the railroad ties was left piled around the magnolia tree and not removed to another location. Respondent does not deny this was done but asserts he was following the instructions of Mrs. Mensh in leaving it there. The Respondent does not deny that he was paid.

   
   

6. The issue for resolution, then, is whether Respondent did all that was required of him or whether he abandoned the job before doing so. Respondent testified under oath that he was told by Mrs. Mensh to not face the inside of the block bed walls because the beds would be filled with dirt and not seen. He also asserts she told him to place and leave the dirt around the magnolia tree and she would later have the gardener move it to where it was to be used. If true, these directions by Mrs. Mensh, carried out fully as they were by Respondent, would serve as justification for his failure to do that which it is now claimed he should have done. Respondent testified to this under oath.

   
   

7. Petitioner did not present any evidence to dispute Respondent's claims of instruction by Mrs. Mensh. Since such clarifying testimony was not presented, a situation of equipoise exists. In addition, the fact that Respondent did some post-construction inside stonework near the fireplace for Mr. Mensh without any complaint about the wall would tend to give credence to the Respondent's allegation that he had done all that was required on the outside. No doubt Respondent would have been well served to have answered Mr. Mensh's calls and letter. However, taken together, the evidence of Respondent's misconduct as alleged is neither clear nor convincing.

RECOMMENDATION

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

RECOMMENDED that the Administrative Complaint in issue against Respondent, Phillip Gibson, be dismissed.

RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 2nd day of November, 1995.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

Suite 102

11701 Belcher Road

Largo, Florida 34643-5116

Phillip Gibson

4200 32nd Avenue North

St. Petersburg, Florida 22713

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-002053

Orders for Case No: 95-002053