STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1683

) 96-1684

WALTER P. TUGLUS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in these consolidated cases in Largo, Florida, on August 22, 1996.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

For Respondent: Thomas C. Little, Esquire

Post Office Box 5379 Clearwater, Florida 34625

STATEMENT OF THE ISSUE

The issue is whether Respondent, in the practice of marine contracting, committed fraud and other misconduct, in violation of Chapter 75-489, Laws of Florida, as amended.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 23, 1996, Petitioner commenced DOAH Case No. 96-1683. Petitioner alleged that Respondent is a certified marine specialty contractor, holding license C-4002, and a certified building contractor, holding license C-1806. The Administrative Complaint alleges that Respondent was at all times the qualifying contractor for Tug Marine Corporation.

The Administrative Complaint in Case No. 96-1683 alleges that, on September 12, 1995, Respondent contracted with Joseph Zaia to install a new dock at the latter's home in Treasure Island. After taking a deposit of $1114.00, Respondent allegedly failed to do the work. The Administrative Complaint alleges that Respondent's failure to do work or refund the deposit constitutes fraud, deceit, or gross negligence, incompetency, or misconduct in the practice

of contracting, in violation of Section 24(2)(d), (h), (j), (m), and (n), Chapter 75-489, Laws of Florida, as amended.

By Administrative Complaint dated March 12, 1996, Petitioner commenced DOAH Case No. 96-1684. The Administrative Complaint in Case No. 96-1684 alleges that Respondent is a certified marine specialty contractor, but makes no allegation that he is also a certified building contractor. The Administrative Complaint alleges that, on November 7, 1995, Respondent contracted with Kelly and Karlyn Bradshaw to replace a dock at their home. After taking a deposit of $1500.00, Respondent allegedly failed to do the work. The Administrative Complaint alleges that Respondent failed to provide a written completion date in the contract, in violation of Rule 2-15.02(2), Florida Administrative Code, which implements Section 501.204, Florida Statutes; committed mismanagement or misconduct in the practice of contracting by abandoning the customer's job with the percentage of completion less than the percentage of contract price paid by the customer, in violation of Section 24(2)(h)(2), Chapter 75-489, Laws of Florida, as amended; and committed an unfair construction practice by failing to start or complete the construction on time, in violation of Rule 2-15.03(4) and (5), Florida Administrative Code, which implements Section 501.204, Florida Statutes. The Administrative Complaint concludes that Respondent thereby violated Section 24(2)(d), (h), (j), and (m), Chapter 75-489, Laws of Florida, as amended.

Respondent demanded a formal hearing.

At the commencement of the hearing, the hearing officer determined that Mr.

Owens could serve as a qualified representative of Petitioner.

At the hearing, Petitioner called two witnesses and offered into evidence five exhibits, which were all admitted. Respondent called one witness and offered into evidence no exhibits.

The parties did not order a transcript. Neither party filed proposed findings.

FINDINGS OF FACT

1. Respondent is certified by Pinellas County as a building contractor and marine specialty contractor. He holds license C-4002, as a certified marine specialty contractor, and license C-1806, as a certified building contractor.

   
   

2. Respondent serves as the qualifying agent for Tug Marine Corporation, d/b/a Tug Building and Marine Construction Company (Tug Marine).

   
   

3. Through Tug Marine, Respondent undertook to perform the work described below under his marine specialty license. A person holding only a building contractor license could not lawfully have performed this work.

   
   

4. Kelly and Karlyn Bradshaw wanted to replace a dilapidated dock at their home. A friend suggested that they contact Tug Marine.

   
   

5. Mrs. Bradshaw's telephone call to Tug Marine resulted in a visit to her home on November 7, 1995, by Jay Bowers, an employee of Tug Marine. Mr. Bowers spoke with Mr. and Mrs. Bradshaw and prepared a contract for the work.

6. The contract calls for the removal of the existing dock and installation of a new dock pursuant to a drawing and specifications that are on the contract form. The total cost is $4500, with one-third down and the balance due on completion.

   
   

7. The contract is silent as to when work is to start or finish. During negotiations, Mr. Bowers assured the Bradshaws that Tug Marine would finish the new dock by Christmas. He said that the work would take only three days and they would start the work within 30 days.

   
   

8. The parties agreed that the Bradshaws would obtain the necessary permits from the City of St. Petersburg. After they did so, Mrs. Bradshaw and Mr. Bowers, on behalf of Tug Marine, signed the contract on November 13, 1995.

   
   

9. When she signed the contract, Mrs. Bradshaw gave Mr. Bowers a check in the amount of $1500 payable to Respondent personally. Respondent endorsed the check personally, and the Bradshaws' bank paid the check, debiting the Bradshaws' account by $1500.

   
   

10. No one ever performed the work specified in the November 7 contract. Mrs. Bradshaw became concerned when the work did not commence when Mr. Bowers had promised. She first called Tug Marine on December 5. After calling a number of times, Mrs. Bradshaw received a call back on December 10 from Respondent. She expressed her concern to Respondent, who blamed the delays on bad weather.

    
    

11. Mrs. Bradshaw asked him when work would start. Respondent said he did not know. She asked him if they had pulled the necessary additional permits. Respondent said that he did not know.

    
    

12. When the work still did not commence by Christmas, Mrs. Bradshaw called Respondent and demanded her money back. She made at least five such demands prior to filing a complaint with Petitioner in early 1996.

    
    

13. Respondent refused to return the money to Mrs. Bradshaw. He explained that the company was financially distressed and did not have the money to return to her.

    
    

14. Respondent committed fraud in the business of contracting when he cashed the Bradshaws' check, failed to do the work, and refused to refund the deposit.

    
    

15. When he wanted to find a contractor to build a new dock, Joseph Zaia checked the yellow pages for the name of a contractor and found Tug Marine. He called the number listed and set up an appointment. At the appointed time, Mr. Bowers, still an employee of Tug Marine, visited Mr. Zaia's house on September 8, 1995.

    
    

16. After discussions, Mr. Bowers prepared a contract dated September 8 calling for the installation of a 44-foot long dock at a total cost of $4000 or possibly $3342. (The bottom of the contract states $4000, and the middle of the contract shows $4000 lined out and $3342 written in.)

    
    

17. The Zaia contract is on the same form as the Bradshaw contract. The contract is silent as to when work is to start or finish. During negotiations, Mr. Bowers assured Mr. Zaia that the work would be completed in two weeks.

18. On September 12, 1995, Mr. Zaia and Mr. Bowers, on behalf of Tug Marine, signed the contract. At that time, Mr. Zaia gave Mr. Bowers a check in the amount of $1114 and payable to Respondent personally.

    
    

19. Respondent personally endorsed the check. Mr. Zaia's bank paid the check and debited Mr. Zaia's account by $1114.

    
    

20. Shortly after the contract was signed, Respondent contacted Mr. Zaia and informed him that local authorities would permit a dock only as long as 35 feet. Mr. Zaia told him to prepare a new drawing and new cost estimate.

    
    

21. Respondent never contacted Mr. Zaia again. No one at Tug Marine ever gave Mr. Zaia the new information that he had requested or returned his deposit.

    
    

22. In late October 1995, Mr. Zaia filed a complaint with Petitioner.

    
    

23. Respondent committed fraud and mismanagement or misconduct in the practice of contracting by taking Mr. Zaia's deposit and refusing either to return it or do the work.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections, without more, are to Chapter 75-489, Laws of Florida, as amended.)

    
    

25. Chapter 75-489, as amended, authorizes the Pinellas County Construction Industry Licensing Board to impose discipline in certain circumstances. Section 24(2) provides, in material part, that the "following acts constitute cause for disciplinary action:"

    
    

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, [of] this board, or of any municipality or county of this state[.]

    * * *

    1. Committing 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... .

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

    * * *

    (j) Failing [in] any material respect to comply with the provisions of this part.

    * * *

    1. Being found guilty of fraud or deceit or of gross negligence, incompetency, or

       misconduct in the practice of contracting.

    2. Proceeding on any job without obtaining applicable local building department permits and inspections.

    
    

26. Section 24(6) provides that the Board may impose the following discipline:

    
    

    1. Suspend the certificate holder or registrant from all operations as a contractor during the period fixed by the board but the board may permit the certificate holder or registrant to compete any contracts then uncompleted.

    2. Revoke a certificate or registration.

    3. Impose an administrative fine or penalty not to exceed $1,000.00... .

    4. Require restitution and impose reasonable investigative and legal costs.

       
       

27. Petitioner argues that Section 24(6) allows it to act against all certificates of a contractor who has been found guilty of violations under one of his certificates. Section 24(6)(a) allows action against "all operations as a contractor." In contrast to that broad language, Subsection (b) allows the Board only to "[r]evoke a certificate or registration." The difference in language suggests that the Legislature did not directly empower the Board to revoke all certificates of a contractor who was guilty of violations of the provisions governing only one of his specialties.

    
    

28. In the future, Petitioner may want to add a count to its administrative complaint to seek revocation of the other certificates. Petitioner could allege that the fraud constituted a violation of Section 455.227(1)(a) and, thus, Section 24(2)(c). These provisions do not appear to be so narrowly focused as the revocation provision of Section 24(6)(b). However, action against the other certificate is possible in this case and clearly warranted because Respondent has made no offer, even at the hearing, to arrange for the repayment of the Bradshaws and Mr. Zaia.

RECOMMENDATION

It is

RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order revoking Respondent's marine specialty contractor certificate, license C-4002 and suspending Respondent's building contractor certificate, license C-1806, for a period of ten years; provided the suspension of the contractor certificate shall be lifted at anytime after one year if Respondent reimburses Mr. and Mrs. Bradshaw and Mr. Zaia for the deposits that they paid him.

ENTERED on September 30, 1996, in Tallahassee, Florida.

ROBERT E. MEALE, 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 September 30, 1996.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

Thomas C. Little, Esquire Post Office Box 5379 Clearwater, Florida 34625

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-001683

Orders for Case No: 96-001683