STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 23, 2008, in Port Charlotte, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Smothers, Esquire

Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828

Orlando, Florida 32801-2828

For Respondent: Winston Brown, pro se

4230 Northwest Twenty-First Street Apartment 248

Lauderhill, Florida 33313 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), and 489.129(1)(m),

Florida Statutes (2004),1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 21, 2007, Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), filed a three-count Administrative Complaint against Respondent, Winston Brown (Mr. Brown), alleging that

Mr. Brown violated Subsections 489.129(1)(g)2., 489.129(1)(j), and 489.129(1)(m), Florida Statutes. Mr. Brown requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on July 18, 2007, for assignment to an Administrative Law Judge to conduct the final hearing.

The final hearing was originally scheduled for

September 26, 2007. Petitioner requested a continuance, and the final hearing was rescheduled for November 1, 2007. On

October 18, 2007, counsel for Respondent filed a Motion to Withdraw and Motion for Continuance. The motions were granted, and the final hearing was rescheduled for January 23, 2008.

At the final hearing, the Department called John Fitzpatrick and Debbye Fitzpatrick as its witnesses. Petitioner’s Exhibits A through I were admitted in evidence.

Mr. Brown testified in his own behalf. Respondent’s Exhibits 1, 2, and 3 were admitted in evidence.

The Transcript of the final hearing was filed on February 15, 2008. The parties agreed to file their proposed recommended orders within ten days of the filing of the

Transcript. The Department filed its proposed recommended order on February 25, 2008, and Mr. Brown filed his trial summary on February 27, 2008. Both submittals have been given consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Brown holds a current, active Florida State Certified General Contractor License number CG C062829. He is the owner and qualifying agent for Churchill’s Construction Co., Inc. (Churchill’s).

2. Sometime in 2003, Churchill’s entered into two contracts with Walcott Allen to construct two homes in Charlotte County, Florida. Mr. Allen was a friend of Mr. Brown.

   Mr. Allen had had a contractor’s license, but the license had been revoked by the Department.

3. Mr. Brown decided to make Mr. Allen vice president of operations for Churchill’s. The purpose was two-fold. First, Mr. Brown did not think that he would be able to be present at the construction sites of Mr. Allen's homes very often, but Mr. Allen would be at the construction most of the time. By

   making Mr. Allen a vice president of the company, Mr. Brown felt

   that the building inspectors would be satisfied that Churchill’s had a presence at the construction sites. Additionally,

   Mr. Brown was hopeful that Mr. Allen would be able to generate business through some of his business associates.

4. Sometime in 2003 or 2004, Mr. Brown and Mr. Allen went to the real estate office of Debbye Fitzpatrick concerning the purchase of some lots.

5. In 2004, Hurricane Charlie struck the Port Charlotte area and did considerable damage, including damage to the residence of John and Debbye Fitzpatrick. Debbye Fitzpatrick knew that Mr. Allen had done some construction work in the past and approached him about repairing the damage to her home.

   Mr. Allen advised Mr. Brown that the Fitzpatricks were interested in Churchill’s repairing the damage to their house.

6. Sometime before December 15, 2004, Mr. Brown and Mr.

   
   

   Allen went to the Fitzpatricks' home to look at the damage. Neither Mr. Brown nor Mr. Allen advised the Fitzpatricks that Mr. Allen could not enter into a contract on behalf of Churchill’s. Mr. Allen gave the Fitzpatricks a business card indicating that he was the vice president of operations for Churchill’s.

7. On December 15, 2004, the Fitzpatricks entered into a contract with Churchill’s to make the repairs to the Fitzpatricks' home. The contract was not written on the form

   usually used by Churchill’s. Mr. Allen signed the contract on behalf of Churchill’s. The contractor license number listed on the contract was Mr. Brown’s. The total contract amount was

   $65,728.

   
   

8. Based on the contract, Churchill’s was to remove existing drywall ceilings and insulation and replace with new insulation and sheetrock, remove existing drywall and insulation for the walls and replace with new sheetrock and insulation, lay floor tiles, paint the ceiling and walls, replace all the electrical fixtures, and power wash and paint the exterior of the house.

9. Churchill’s applied for a building permit for the repairs to the Fitzpatricks’ home. The permit application was signed “Winston Brown” and was notarized. Mr. Brown contends that he did not sign the application and that the signature is a forgery by Mr. Allen. To a layperson, the signature on the permit application for the Fitzpatrick house does differ significantly from the signature on other documents submitted by Mr. Brown, which documents he testified bore his signature.

10. Mr. Allen commenced work on the Fitzpatrick house. On February 17, 2005, Debbye Fitzpatrick wrote a check for $7,500 made payable to Wally Allen as the initial payment for the construction work. Mr. Allen had asked Debbye Fitzpatrick to make the check payable to him rather than to Churchill’s.

    Debbye Fitzpatrick did not think it was out of the ordinary for the check to be made out to Mr. Allen, and she complied with his request.

11. On March 29, 2005, Debbye Fitzpatrick wrote another check to Mr. Allen for $10,000 as a draw on the contract amount. On June 23, 2005, she wrote another check to Mr. Allen for

    $11,601.77.

    
    

12. The work on the project did not go well according to the Fitzpatricks. Some of the tiles that were laid were cracked, and some of the tiles gave out a hollow sound when tapped with a wooden implement. Some of the tiles were not grouted. Some of the grout in the tile work was not sealed. Insulation was not replaced in some of the ceiling areas. Patches to the sheetrock on the walls and ceiling were visible. The texturing of the paint was not consistent, with some areas having too much texture and some areas not having enough. The workers were careless with their painting and got paint on the carpet, furniture, floors near baseboards, windows, window frames, soffits, and front porch. The workers also damaged some of the furniture and kitchen appliances during the performance of their work. The front entry door was not installed properly. The garage door was not primed and the paint peeled. The vanity top in the master bedroom was not installed properly and had to be redone by another contractor.

13. In July, Mr. Allen and his workers stopped coming to the job site. No notice was given to the Fitzpatricks that work was going to be stopped. No one from Churchill’s ever came back to work on the project, and the work on the project was not complete and was unsatisfactory.

14. The Fitzpatricks had to pay an electrician $1,500.00 to do work that was supposed to be included in the contract with Churchill’s. Although there was unrebutted testimony that the Fitzpatricks had to pay other contractors to repair the damage done by Churchill’s, there was no evidence presented to quantify the amounts paid and the damage sustained other than a payment to the electrician. Additionally, some of the work not completed by Churhill’s had not been done because the Fitzpatricks lack the funds to complete the work. Again, no effort was made to quantify the amount of money necessary to complete the work.

15. Mr. Brown claims that he did not know anything about the project and that Mr. Allen acted without authority to bind Churchill’s to a contract for the project. Mr. Brown’s testimony is not credible. Mr. Brown made Mr. Allen a vice president of the company and went with Mr. Allen to the Fitzpatricks’ home to look at the work that was needed. According to Mrs. Fitzpatrick, “Mr. Allen did most of the talking as to what was to be done and what the procedure was to

    be and he [Mr. Brown] didn’t speak very much, but he did nod and go along with what the plan was.”

16. One of the reasons that Mr. Brown made Mr. Allen a vice president of the company was to garner additional business. If Mr. Brown had not wanted Mr. Allen to act on behalf of Churchill’s, Mr. Brown should not have made Mr. Allen a vice president of the company. Mr. Brown knew that any work that

    Mr. Allen was able to secure would have to be done using Mr. Brown’s license because Mr. Allen’s license had been revoked.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

18. The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). The Department has alleged that Mr. Brown violated Subsections 489.129(1)(g)2., 489.129(1)(j), and 489.129(1)(m), Florida Statutes, which provides that the following acts constitute grounds for disciplinary action by the Department:

    (g) 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 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) Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.

    
    

    * * *

    
    

    (m) Committing incompetency or misconduct in the practice of contracting.

    
    

19. Mr. Brown is and was the qualifying agent for Churchill’s during all the times material to this proceeding. Subsection 489.1195(1)(a), Florida Statutes, provides:

    1. A qualifying agent is a primary qualifying agent unless he or she is the secondary qualifying agent under this section.

       
       

       1. All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for

          all field work at all sites; and for financial matters, both for the organization in general and for each specific job.

          
          

          Thus, Mr. Brown was responsible for the work that was performed at the Fitzpatricks' home.

20. The Department established by clear and convincing evidence that Churchill’s abandoned the project in violation of Subsection 489.129(1)(j), Florida Statutes. The project was not completed, Churchill’s left the job and never returned, and Churchill’s gave no reason to the Fitzpatricks for not returning to the job to complete the work. As qualifying agent for Churchill’s, Mr. Brown was responsible for completing the work.

21. The Department established by clear and convincing evidence that Churchill’s violated Subsection 489.129(1)(m), Florida Statutes, by committing incompetency and misconduct in the work performed for the Fitzpatricks. The record is replete with examples of shoddy work performed by Churchill’s. As qualifying agent for Churchill’s, Mr. Brown was responsible for the work.

22. The Department failed to establish by clear and convincing evidence that Churchill’s violated Subsection 489.129(1)(g), Florida Statutes. The Department did not establish that the percentage of completion of the contract was less than the amount that had been paid to the contractor.

23. Florida Administrative Code Rule 61G4-17.001(5) provides that the Construction Industry Licensing Board may order restitution for financial harm suffered by the consumer. No evidence other than the $1,500.00 paid to an electrician was presented to quantify the financial harm to the Fitzpatricks.

24. Florida Administrative Code Rule 61G4-17.001(4) provides that the Construction Industry Licensing Board may assess the costs of investigation and prosecution. No evidence was presented as to amount of these costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsections 489.129(1)(j) and 489.129(1)(m), Florida Statutes, and did not violate Subsection 489.129(1)(g)2., Florida Statutes; placing Respondent on probation for two years; imposing an administrative fine of

$1,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(m), Florida Statutes; and requiring Respondent to make restitution to the Fitzpatricks in the amount of $1,500.00.

DONE AND ENTERED this 14th day of March, 2008, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 14th day of March, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2004 version.

COPIES FURNISHED:

Scott A. Smothers, Esquire

Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828

Orlando, Florida 32801-2828

Winston Brown

4230 Northwest Twenty-First Street Apartment 248

Lauderhill, Florida 33313

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 07-003335PL

Orders for Case No: 07-003335PL