STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

DAVID M. OLSEN, )

)

Respondent. )

Case No. 01-3378PL

)

RECOMMENDED ORDER

Administrative Law Judge Daniel Manry conducted the administrative hearing of this proceeding on December 3, 2001, in New Port Richey, Florida, on behalf of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: David M. Olsen, pro se

7917 Knight Drive

New Port Richey, Florida 34653 STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section 489.129(1)(j) and (m), Florida Statutes (Supp. 1998), for the

reasons stated in the Administrative Complaint and, if so, what, if any, penalty should be imposed. (All chapter and section references are to Florida Statutes (Supp. 1998) unless otherwise stated.)

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on June 18, 2001. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of two witnesses and submitted 26 exhibits for admission in evidence. Petitioner's exhibits include four deposition transcripts.

Respondent appeared for a portion of the hearing but did not testify or offer any exhibits into evidence. Respondent then objected to certain rulings, refused to participate further, and left the hearing. The identity of the witnesses and exhibits and any attendant rulings are set forth in the Transcript of the hearing filed on January 16, 2002.

Petitioner timely filed its Proposed Recommended Order ("PRO") on January 30, 2002. Respondent did not file a PRO. The Transcript was filed with DOAH on January 16, 2002.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of contracting in the State of Florida.

2. At all times material hereto, Respondent was licensed as a certified general contractor and a certified plumbing contractor in the state, pursuant to respective license numbers CG C037614 and CF C037179. Respondent's licenses are currently inactive.

3. Respondent was licensed as the qualifying agent for Landmark Construction Group, Inc. ("Landmark"). As the qualifying agent, Respondent was responsible for all of Landmark's contracting activities, in accordance with Section 489.1195, including all field work at work sites and for financial matters.

4. On April 13, 1999, Respondent, doing business as Landmark, entered into a contract with Dorothy and Michael Stippert (the "Stipperts") to construct a custom home and swimming pool at 7740 Bass Lane, New Port Richey, Florida. The total price for the contract, including change orders, was

   $129,509.00.

   
   

5. The Stipperts paid a total of $3,000.00 to Respondent as a deposit. The Stipperts made additional payments to Respondent from a loan obtained by the Stipperts from Bank of America, their construction lender. The lender paid draws to Respondent in the amount of approximately $36,000.

6. Respondent obtained building permit number 340264 from the Pasco County Building Department for the project. Respondent commenced work in March 2000.

7. Work proceeded sporadically. Respondent cleared the lot and poured the foundation, but the project proceeded more slowly than is normal for the industry in the area.

8. On June 6, 2000, the Pasco County Building Department passed an inspection of the project at the lintel stage. The lintel stage was the last construction performed by Respondent on the Stipperts’ property.

9. Respondent performed no work on the project after

   
   

   June 6, 2000. As of June 6, 2000, Respondent ceased work on the project and abandoned the project. Respondent did not respond to attempts by the Stipperts to contact him regarding the project.

10. On June 19, 2000, William Gregory Sizemore recorded a valid claim of lien against the Stipperts’ property in the amount of $2,201.20. However, Mr. Sizemore has taken no action to foreclose upon the lien.

11. On September 5, 2000, the lender and the Stipperts entered into a contract with Paul Bakkalapulo, doing business as Costa Homes, Inc. ("Costa"), to complete the construction of the home. At the time the Stipperts entered into the contract with

    Costa, Costa had no business relationship with Landmark or Respondent, nor did Costa enter into one at any time thereafter.

12. In addition to the remaining proceeds from the loan from Bank of America, the Stipperts paid an additional $17,328 of their own money to Costa to complete the same project that Respondent had contracted to complete. The additional cost of

    $17,328 is attributable to the fact that Respondent left the property exposed to the elements. The exposure required additional work and cost to complete the project.

13. Due to the delays caused by Respondent’s abandonment of the project, and to avoid foreclosure by the lender, the Stipperts paid interest penalties to the Bank of America in the amount of $1,500.00. Petitioner incurred investigative costs in the amount of $470.56.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1). The parties were duly noticed for the administrative hearing.

15. Petitioner dismissed two Counts in the Administrative Complaint pertaining to Section 489(1)(g)1. and (i). In regard to the remaining counts in the Administrative Complaint, Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the remaining acts alleged in the

    Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla.

    1987).

    
    

16. Petitioner satisfied its burden of proof. Petitioner proved by clear and convincing evidence that Respondent violated Section 489.129(1)(j)and (m).

17. Respondent violated Section 489.129(1)(j) by abandoning the Stippert project. Respondent abandoned the project on June 6, 2000. After that date, Respondent performed no work and did not supervise the project. On September 5, 2000, a different contractor took over the project and completed it at an additional cost of $17,328.00.

18. Respondent violated Section 489.129(1)(m) by committing incompetency or misconduct in the practice of contracting. Respondent completed only a portion of the project and did so at an incompetent pace. As time went on, Respondent refused to respond to the homeowners' concerns. Respondent did not pay all of the subcontractors. A valid lien was recorded against the Stipperts’ property. The partially-built structure was left exposed to the elements and as a result, required additional cost to complete. The delays, in addition to the abandonment, caused the Stipperts to incur an additional

    $1,500.00 in interest payments pending completion of the project.

19. Section 489.129(1) authorizes Petitioner to suspend or to otherwise discipline the license of a contractor who is found guilty of any of the grounds enumerated in that section. See also Rule 61G4-17.001, Florida Administrative Code. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Further, Rule 61G4-17.002 authorizes the consideration of aggravating and mitigating circumstances. Aggravating circumstances include: monetary or other damage to the customer; and the number of complaints filed against the licensee. Rules 61G4-17.002(1) and 61G4-17.002(6).

20. The aggravating circumstances in this proceeding include significant harm to the customer such as monetary damages and liens against the customer's property. The only mitigating factor is that the Respondent has not been the subject of prior discipline by Petitioner.

21. The authorized penalties for the violations applicable to this case include: (1) abandonment, first violation, $500-

    $2,000 in fines; and (2) any other form of misconduct, $250-

    
    

    $1,000 in fines and/or probation. Rule 61G4-17.001(11) and (14)(d)3.

22. Pursuant to Section 489.129(1) and Rule 61G4- 17.001(21), Petitioner may require Respondent to pay restitution of financial loss suffered by the consumers. In this case, the

additional cost of completion in the amount of $17,328.00, plus the interest penalties of $1,500.00, total $18,828.00.

Pursuant to Section 489.129(1) and Rule 61G4-17.001(20), Petitioner may also assess the investigative costs incurred by Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 489.129(1)(j) and (m), suspending Respondent's licenses for two years from the date that Respondent re-activates his licenses, imposing an administrative fine in the amount of $2,000.00, requiring Respondent to pay restitution to Michael Stippert in the amount of $18,828.00, and requiring Respondent to pay costs of Petitioner’s investigation in the amount of $470.56.

DONE AND ENTERED this 20th day of February, 2002, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2002.

COPIES FURNISHED:

David M. Olsen 7917 Knight Drive

New Port Richey, Florida 34653

Patrick L. Butler, Esquire Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1039

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 01-003378PL

Orders for Case No: 01-003378PL