vs. ) CASE NO. 78-593
PHILLIP H. BARE d/b/a ) AMERICAN GENERAL CORP., INC., )
Respondent. )
A hearing was held in the above captioned matter, after due notice, at Live Oak, Florida, on March 20, 1979, before the undersigned Hearing Officer.
For Respondent: C. Valentine Bates, Esquire
Whether Respondent's registration as a general contractor should be suspended or revoked, or the respondent otherwise disciplined, for alleged violations of Sections 468.112 (2)(a), (2)(g), and (2)(h), Florida Statutes, as set forth in the Administrative Complaint.
Petitioner Phillip H. Bare, Ocala, Florida, is registered with Respondent as a general contractor under the provisions of Chapter 468, Florida Statutes, and was so registered throughout the year of 1977. He operates under the name of American General Corporation of Florida, but that firm has not been qualified to engage in the contracting business in Florida, pursuant to Section 468.107, Florida Statutes. (Petitioner's Exhibits 1, 2, Stipulation, Testimony of Cherry)
On August 15, 1977, Respondent, as president of American General Corporation of Florida, entered into a Home Improvement Installment Contract and Note with Joe Wheeler and wife, who reside at Route 2, Box 63, Live Oak, Florida. The contract provided that for a price of $4,250 Respondent would make the following property improvements on the Wheeler residence:
Build 12 X 20 Room Addition and finish with paneling, ceiling tile, & all trim.
Build 6 X 14 porch with top.
Replace all Rotten sills.
Replace all Rotten siding.
Paint house with latex paint.
Repair floor joist.
The Wheelers made a down payment of $350 leaving an unpaid balance of $3,900. The promissory note provided for a total financed cost of $6,629.28 payable in monthly payments over a period of seven years.
On August 29, 1977, the parties entered into another such contract for additional work to the residence for the price of $1,600 as follows:
Install ceiling tile in (2) bed rooms and bathroom complete with trim.
Install paneling in (2) bed rooms complete.
Install paneling and tile board in bath.
Remove old shingles and install new 235lb asphalt shingles.
Install 54" kitchen sink complete and hook to water.
The Wheelers paid $100 as a down payment on the work and financed the remainder with a total deferred price of $2,100 payable in 48 consecutive monthly installments. (Petitioner's Exhibits 5, 6, Testimony of E. Wheeler, J. Wheeler)
Respondent subcontracted the work on the Wheeler residence to one John Compton. Respondent did not secure a Suwannee County Building Permit for the work, nor was he licensed in that county to act in the capacity of a contractor. (Testimony of Respondent, Wilson)
On September 12, 1977, Mr. Wheeler signed a Customer's Completion Certificate" wherein he acknowledged that the contract work had been satisfactorily completed. Although Respondent testified that he explained the contents of the document to Wheeler at the time it was executed, Wheeler denied the same and testified that he had not read its contents prior to signing it. (Testimony of Respondent, J. Wheeler, Respondent's Exhibit 1)
Prior to completion of the work, the Wheelers noted that certain deficiencies in the work existed, including a floor that "shaked" in the new addition, looseness of wall paneling, failure to replace rotten siding and lower sills, and failure to install ceiling tile in one bedroom. They spoke to workmen on the job who said that they would return and finish the work.
However, nothing further was done in spite of the fact that Respondent told Mrs. Wheeler in a telephone conversation that he would be back to complete the job.
As a result, Mrs. Wheeler made a complaint to Derl W. Wilson, the building official for Suwannee County. (Testimony of E. Wheeler, J. Wheeler, Wilson)
Pursuant to Mrs. Wheeler's complaint, Wilson inspected the premises at some time during the month of September, 1977, and observed that the accomplished work was of a substandard nature involving various violations of the Southern Standard Building Code which had been adopted by Suwannee County in 1975. These violations, which Respondent acknowledged at the hearing to have been committed, included the following: concrete foundation blocks improperly aligned and unsupported by required concrete pad; improper spacing of floor
joists at 24 inch rather required 16 inch intervals; use of one-ply instead of two-ply flooring material; failure to extend vent stack for plumbing system in kitchen to a height of 6 inches above the roof line; failure to provide a shutoff valve for cold water line under kitchen sink; failure to cover and protect splices in wiring of ceiling light fixture; failure to install ridge board for support of roof rafters; improperly installing two inch by four inch wood braces in attic; failure to connect sewer line to septic tank.
Additionally, Wilson observed various instances of poor workmanship in installation of an electric wall receptacle and connection of the roof of the new addition to the existing building. Further, he noted that due to the improper spacing of floor joists, the substandard plywood flooring was not firm and constituted a safety hazard. (Testimony of Wilson, Petitioner's Composite Exhibit 3)
After his inspection, Wilson wrote a letter to Respondent, dated October 18, 1977, pointing out the deficiencies in construction and advising that a complaint would be filed against him unless a building permit was obtained within ten days and the necessary corrections of deficiencies were made. Although Wilson testified that he did not hear from Respondent as a result of the letter, Respondent made several telephone calls to Wilson's office and was informed that he was on vacation. (Testimony of Wilson, Respondent, Respondent's Exhibit 7)
On June 14, 1978, Respondent entered a plea of guilty in the County Court of Suwannee County, Florida to a charge of improper construction arising out of the Wheeler contract, and the Court withheld adjudication of guilt in the matter. (Petitioner's Exhibit 9)
Respondent was previously convicted in the County Court of Putnam County, Florida, on August 13, 1974 of engaging in the business or acting in capacity of a contractor without being duly registered in the county pursuant to Section 468.105(2), Florida Statutes. On June 16, 1975, Respondent pleaded nolo contendere in the County Court of Alachua County, Florida to a charge arising out of his activities as a home improvement contractor. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of six months and required that he "make necessary repairs to home of victim to satisfaction of Consumer Protection Section of State Attorney's Office, Eighth Judicial Circuit." (Petitioner's Exhibits 7-9)
Petitioner has been a building contractor for twelve years. He testified that his subcontractor for the Wheeler job had been competent in the past and he relied on this fact in not closely inspecting the work under the Wheeler contracts. For this reason, he was unaware that the building code violations had occurred until after he had sold the Wheeler contracts and mortgages to a third party who was contacted by the Wheelers regarding the deficiencies. Respondent denied that he abandoned the work because he thought it had been completed until subsequent notification of the Wheeler complaint. He has since made attempts through Counsel to resolve the complaint by having the work performed by a contractor licensed in Suwannee County or by means of a monetary settlement. He further testified that he had inquired of Petitioner's office as to the necessity for obtaining a Suwannee County license prior to commencing the Wheeler contracts and was informed that his registration was valid for work in that county. He acknowledged that he made a "mistake" in not obtaining a building permit and in failing to supervise his subcontractor properly, but stated that the licensing rules in the various counties were "confusing." As to his prior difficulties in Putnam and Alachua Counties,
Respondent testified that the Alachua matter involved a complaint raised four or
five years after construction regarding quality of workmanship and that he had taken care of the matter. As to the Putnam County case, he testified that he was unaware that a building permit was necessary at the time he did the work for which he was subsequently prosecuted. It is found that Respondent's exculpatory testimony regarding his failure to obtain a building permit or county licensing, and lack of knowledge of code violations with respect to the work performed at the Wheeler residence is not credible. (Testimony of Respondent, Respondent's Exhibits 2-6)
CONCLUSIONS OF LAW
Petitioner has jurisdiction over the Respondent and the subject matter herein. In this respect, Section 468.112(1), Florida Statutes, provides that Respondent must forward complaints against a registered contractor arising in any area of the state which has a local board to the political subdivision where the alleged violation occurred for its action. The First District Court of Appeal recently held in the case of Swebilius v Fla. Const. Indus. Lic. Bd., 365 So.2d 1069 (Fla. 1st DCA 1979) that the failure of the Florida Construction Industry Licensing Board to forward a complaint against a contractor to a local county board which had authority to revoke or suspend a contractor's certificate of competency for violations of its code, deprived the State Board of jurisdiction to take prior disciplinary action against the contractor. Although such a board existed in Suwannee County at the time here in question pursuant to County Ordinance No. 72-1, as amended by Ordinance No. 74-1, its jurisdiction is confined to disciplinary action against a contractor certified by it. Although not specifically considered in the Swebilius opinion, it goes without saying that the local board would have no jurisdiction to revoke or suspend a Certificate of Competency if none existed. In the instant case, Respondent was not so certified or licensed in Suwannee County and therefore it would have been a futile effort on the part of the Respondent to forward the instant complaint to that board for action. Accordingly, it is determined that Respondent properly has jurisdiction to proceed in this matter in spite of the fact that "a local board" existed in Suwannee County.
Section 468.112, Florida Statutes, authorizes Respondent to take appropriate disciplinary action against a contractor for various grounds stated therein. The instant complaint alleges that Respondent violated subsections 468.112(2)(a), (2)(g), and (2)(h) , which read pertinently as follow:
468.112 Revocation or suspension of certificate or registration.--
* * *
The following acts constitute cause for disciplinary action:
Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipality, city, or county thereof.
* * *
Failure in any material respect to comply with the provisions of this part.
Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project to be considered abandoned after 90 days if the contractor terminates said project without
notification to the prospective owner and without just cause.
Petitioner's allegation that Respondent violated subsection 468.112(2)(g) fails to specify the particular provisions of Chapter 468 that Respondent failed to comply with other than the other cited grounds under Section 468.112, and therefore is considered insufficient in itself as a separate ground for action.
As to the alleged violation of subsection 468.112(2)(a), based on the foregoing Findings of Fact, it is concluded that Respondent's failure to obtain a building permit, secure proper certification in Suwannee County, and lack of adequate supervision of the Wheeler project, showed willful and deliberate disregard in violation of applicable laws of Suwannee County. It is uncontroverted that the work involved a number of violations of the Southern Standard Building Code which had been adopted by the county. Respondent does not disclaim responsibility for these violations but attributes them to his faith in the ability of the subcontractor to perform the work properly. However, Respondent's failure to ensure that basic support elements of the structure were properly constructed can only be be characterized as utter disregard of his responsibility to ensure the safety and soundness of the structure. As heretofore found, his claims of ignorance as to the requirement of local certification is not accepted. Any state registered contractor is chargeable with knowledge of the law under which he is so registered which, in this instance, clearly permits him to engage in contracting only in those political subdivisions where he has complied with all local licensing requirements. His many years of experience as a contractor also militates against acceptance of his explanation in this regard.
It is considered that the allegation of a violation of subsection 468.112(2)(h) cannot be sustained. Concededly, certain portions of the construction project were not fully completed at the time Respondent terminated the project. However, the contractual work was substantially completed and Respondent was able to secure the completion certificate from the owner of the property. Even if such certificate could be discounted in view the owner's testimony that the had not read or been explained the nature of the document, the fact remains that Respondent's failure to perform the construction in a workmanlike and acceptable manner cannot be construed as "abandonment of a construction project" as contemplated by the statutory provision.
In determining an appropriate penalty to be imposed for Respondent's derelictions, his prior conduct as a contractor in Alachua and Putnam Counties must be taken into consideration. This is not a situation involving a first offender and, accordingly, suspension of the registrant is deemed warranted, together with the imposition of an administrative penalty as provided by Section 468.112(3), F.S.
That Respondent's registration as a general contractor be suspended for a period of one year and that an administrative penalty in the amount of $500 be imposed, for violation of Section 468.112(2)(a), Florida Statutes.
DONE and ENTERED this 23rd day of March, 1979, in Tallahassee, Florida.
THOMAS C. OLDHAM
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1979.
C. Valentine Bates, Esquire 726 NW 8th Avenue - Suite B Gainesville, Florida
J. K. Linnan, Executive Director Florida Construction Industry
