STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1017

)

JACK R. GARRISON, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida, on July 6, 1999, before Arnold H. Pollock, an Administrative Law Judge 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 33773-5116

For Respondent: Was not present and was not

represented by counsel STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent's certification as an electrical sign specialty contractor in Pinellas County, Florida, should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated February 3, 1999, the Pinellas County Construction Licensing Board seeks to discipline Respondent's certification as an electrical sign specialty contractor in Pinellas County, because it alleges, on October 15, 1998, he contracted with a business owner to construct and install two sign faces on the client's existing pylon sign located at the client's place of business; demanded and received a down payment for the work equaling 50 percent of the contract price; and thereafter neither completed the work called for under the contract, nor repaid the deposit to the client. At the time in issue, Respondent's certification was inoperative due to his failure to timely renew. The above-cited misconduct, if proven, constitutes violations of Sections 24(1)(g) and 24(2)(k), Chapter 89-504, Laws of Florida.

Petitioner presented the testimony of Richard A. Swoager, the client with whom Respondent contracted, and Constance Parise, Mr. Swoager's landlady. Petitioner also introduced Petitioner's Exhibits numbered 1-5. Respondent did not appear to present any evidence. Respondent had been advised of the time, date, and location of the hearing by U.S. Mail. The notice, sent to Respondent at the address he gave in his election of rights, was not returned undelivered. Commencement of the hearing was delayed for twenty minutes past the notice's starting time, but Respondent did not appear at any time during the hearing.

No transcript was provided and neither party submitted matters in writing after the hearing.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for the regulation of the construction industry within the county and the certification of practitioners of the construction trades within the county. Respondent,

   Jack R. Garrison, Jr., was licensed as an electrical sign specialty contractor on May 11, 1995. His certification was received on October 1, 1997, but was suspended on July 30, 1998. It was on suspended status at all times pertinent to this case.

2. On October 15, 1998, based on the recommendation of his landlady, Constance Parise, who had had prior dealings with the Respondent, Richard A. Swoager, owner of Planet Rubber, located at 2620 State Road 590 in Clearwater, Florida, contracted with Respondent, doing business at Garrison & Associates Sign Company, Inc., to have Respondent construct and install two new sign faces on the client's existing Coachman square pylon sign. Contract price for the removal and destruction of the old faces, the fabrication and installation of the new faces, and the installation of up to two florescent lamps, was $1,775.00 in addition to $124.25 in sales tax. Respondent requested and received an advance, at the time of signing the contract, a deposit of 50 percent of the total price, $949.62. The contract

   noted that the fabrication and installation was to be completed by November 1, 1998.

3. Respondent assured the client at the time of signing the contract that the art work for the project would be ready for the client approval within one week. The art work was not presented to the client, not withstanding the client called Respondent to inquire about it several times.

4. After making several calls to Respondent's place of business in unsuccessful efforts to obtain the work contracted and partially paid for, and just before the November 1, 1998, deadline, Mr. Swoager left word with Respondent's office that he wanted to cancel the contract and have his deposit returned.

5. On October 26, 1998, after that notice, Mr. Swoager found a note from an individual by the name of Tracy Garrison, whom he believed to be Respondent's wife, representing that Respondent would deliver the deposit return by noon of that day. The money was not returned.

6. Mr. Swoager enlisted the aid of his landlady,

   
   

   Ms. Parise, who had referred Respondent, in obtaining the return of his deposit. Ms. Parise made several phone calls to the Respondent but was unable to reach him. She also sent the Respondent a fax request for the return of the deposit and finally reached him. During this contact on October 25, 1998, eight days after the signing of the contract, Respondent advised Ms. Parise he did not want Mr. Swoager's business and would

   return the deposit. He reiterated the promise to return the deposit in a fax to Mr. Swoager dated October 28, 1998, specifically indicating the money would be delivered that day. It was not delivered.

7. At not time did Respondent accomplish the work called for in the contract, nor did he return any of the funds paid as deposit.

8. At no time during the period of the negotiation for or the signing of the contract, or at any time thereafter, did Respondent possess an active certification under which he could contract for or perform the work in question here.

   CONCLUSIONS OF LAW

   
   

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

10. In a three-count Administrative complaint, the Pinellas County Construction Licensing Board seeks to discipline Respondent's certification as an electrical sign specialty contractor alleging that he contracted to do work for a client, accepted 50 percent of the fee in advance, and neither completed the work nor repaid the deposit to the client. The Board also alleges that at the time in issue, Respondent's license had expired and he had not renewed it. This misconduct, if proven, constitutes violations of Sections 24(1)(g) and 24(2)(k), Chapter 89-504, Laws of Florida.

11. These provisions have been incorporated in

    
    

    Sections 489.129(c), (h), (k), (m) and (n), Florida Statutes, which permit the discipline of the license of a contractor who violates any provision of Chapter 455, Florida Statutes; commits mismanagement or misconduct in the practice of contracting which causes financial harm to a customer; abandons a project in which the contractor is under contract without just cause or proper notice to the customer; commits fraud or deceit in the practice of contracting; or commits misconduct or is incompetent in the practice of contracting.

12. Petitioner bears the burden of establishing Respondent's guilt of the misconduct alleged by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The evidence presented by the Pinellas County Construction Licensing Board, uncontroverted by the Respondent, is both clear and convincing that Respondent contracted with Mr. Swoager to construct a sign for him, accepted a 50 percent deposit in advance, and then failed to complete any of the work called for under the terms of the contract, notwithstanding that Mr. Swoager called him numerous times in an effort to prompt him to accomplish the work called for. This resulted in a financial loss to the client who had to pay additional sums to another contractor to do the required work.

13. The evidence is also uncontroverted that at the time he contracted with the client and all times thereafter throughout

    the term of the contract, Respondent did not hold a current, valid certification to engage in the work called for under the contract. This, and Respondent's failure to do the work for which he had contracted and for which he had received a substantial portion of the contract price, constitute several incidents of misconduct in the practice of contracting, which are violations of the cited statute.

14. Petitioner did not indicate what disciplinary action it proposes to take in this case. The facts as proven herein, however, lead to the inescapable conclusion that Respondent's misconduct, and his callous disregard of the interests of his client, render him unfit to engage in the contracting profession.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order revoking Respondent's certification as an electrical sign specialty contractor in Pinellas County, Florida.

DONE AND ENTERED this 10th day of August, 1999, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1999.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

Jack R. Garrison, Jr.

2249 Cypress Point Drive, West Clearwater, Florida 33763

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-001017

Orders for Case No: 99-001017