STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1339

)

EDWARD RYAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in four separate hearings extending over a year This delay resulted from continuances and the failure of a witness to honor subpoenas Because this witness failed to have the subpoenas quashed, it was necessary for the party calling the witness to seek enforcement of the subpoena in the circuit court. (This witness had had open heart surgery and, had he requested to be excused from attendance, some relief would likely have been granted.) This case was presented on an Amended Administrative Complaint alleging that the Respondent violated Chapter 489, Florida Statutes, as follows:

1. Failing to obtain a building permit, contrary to local codes, and thereby violating Section 489.129(1)(d), Florida Statutes; and

   
   

2. Refusing to make necessary repairs to a building project, thereby constituting an abandonment of the job, contrary to Section 489.129(1)(k), Florida Statutes.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Kristin Building, Suite 101

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 32206

For Respondent: Edward Ryan, pro se

19762 Bel Aire Drive Miami, Florida 33138

ISSUES

The primary factual issue was whether the company which the Respondent had qualified was in fact the contractor on the job from which the allegations in the Amended Administrative Complaint arose.

The Petitioner submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in this order, they are specifically rejected as being

irrelevant, not being based upon the most credible evidence, or not being findings of fact.

FINDINGS OF FACT

1. The Respondent, Edward Ryan, is a certified building contractor holding license number C3 C006481 and was the qualifying agent for Behr Contracting, Inc. (thereafter "Behr Contracting"), at all times relevant to the allegations of the Amended Administrative Complaint.

   
   

2. Behr Contracting was, and is a business engaging in, contracting, selling building materials, and mortgage brokerage. Its operations as a mortgage broker are now carried on under a separate corporation; however, at the time involved in these proceedings, its mortgage brokerage operation was carried out in the name of Behr Contracting, Inc.

   
   

3. Willie Mae Williams resides at 1451 Northwest 92nd Street, Miami, Florida. In 1980, Ms. Williams had extensive modifications made to her house at the foregoing address.

   
   

4. With regard to the work on her house, Ms Williams' initial contact was with S. J. (Jerome) Farmer. Farmer was an independent contractor who was doing home repairs in early 1980 to several homes close to the Williams home. He was not doing these jobs as an employee of Behr Contracting, and no evidence was introduced that at said time he was an employee of Behr Contracting.

   
   

5. After he had already begun working on the Williams home, Farmer approached the Respondent and requested Respondent's assistance in helping him estimate additional repairs and modifications to Ms. Williams' home and assistance in obtaining the financing for this job. Farmer was not affiliated in any manner with Behr Contracting. The Respondent arranged for an estimator to assist Farmer in estimating the cost of the project and in obtaining financing for the project. (Testimony of Ryan, Tr. 58 et seq.)

   
   

6. This estimator had two contract forms signed by Ms. Williams, one for financing and one for construction. These documents were identified by Ms. Williams and were received into the record. (See Petitioner's Exhibits 2 and 3.)

   
   

7. Petitioner's Exhibit 2 is the contract between Behr Contracting and Ms. Williams for the financing of the modifications to the Williams house.

   Financing for the project was obtained through the mortgage brokerage operation of Behr Contracting and the money funneled through Behr Contracting to pay for materials purchased through Behr's building materials operation. Ms. Williams has made payments and is making payments as required under said contract to the finance company, Uni Credit of Jacksonville, Florida.

   
   

8. Behr Contracting provided cabinets, windows and certain appliances, to include a dishwasher. The Respondent was at Ms. Williams' house approximately three times prior to the delivery of building materials from Behr Contracting. (Testimony of Ryan, Tr. 23.) On none of these occasions was the Respondent there as a building contractor qualifying Behr Contracting. At all times, Farmer was in charge of the project. (See testimony of Williams, Tr. 184.) Farmer was the contractor in fact.

   
   

9. Subsequent to installation of the dishwasher, the Respondent was present at the Williams house often because of Ms Williams' complaints about the

   dishwasher. The Respondent replaced this dishwasher and had Ms. Williams' septic tank pumped in order to solve the drainage problem which was causing the dishwasher to malfunction. This was done to honor the warranty on the dishwasher. (Supra, Tr. 45-51.)

   
   

10. A salesman for Behr Contracting gave Ms. Williams an estimate on both the contracting and on the financing for the modifications and remodeling of the Williams house. Under its business practices, Behr Contracting disapproved or rejected the contract for construction, yet approved the financing contract. Approval of a construction contract in the amount of the instant contract, over

    $11,000, would have required an officer's approval. (See testimony of Stanley Weiss, Tr. 21-28.)

    
    

11. Although Ms. Williams identified her signature on the purported construction contract (Petitioner's Exhibit 3), she could not identify the signature appearing on the lefthand side of the page at the bottom of the contract in the area of "Agent" and "Officer." This signature also could not be identified by Stanley Weiss or Margaret Behr, officers of Behr Contracting. It was not the signature of Weiss, Ms Behr or the Respondent, who were the only officers of the corporation authorized to approve a contract of this amount at the time that this contract was prepared. This contract (Petitioner's Exhibit

    3) was never accepted by Behr Contracting (See testimony of Weiss, Tr. 35.)

    
    

12. Although a copy of Petitioner's Exhibit 3 was discovered by Weiss in the files of Behr Contracting, this was a photo copy given to Weiss by the Respondents who had received it from the Board's investigators when the Respondent first spoke to them about this case. (See page 8, deposition of Ryan taken September 17, 1982; see pages 3, 4 and 8, deposition of Weiss; testimony of Ryan, Tr. 70-75; testimony of Weiss, Tr. 10-12.)

    
    

13. The Respondent's involvement in this matter was "limited to providing gratuitous advice to Farmer at Farmer's request on one occasion, concerning a broken major waste drain, and representing Behr Contracting who was a major supplier of materials and appliances for the job. It is specifically found that the Petitioner failed to establish the existence of a construction contract between Ms. Williams and Behr Contracting.

    
    

14. Regarding the allegations that the Respondent abandoned the job, the Respondent caused the dishwasher supplied by Behr Contracting to be replaced under warranty service. The septic tank at the Williams house was pumped and cleaned at the request of Uni Credit in an attempt to solve the problem. Finally, over a year after the job had begun, the Respondent had the septic tank and drainfeild rebuilt and solved Ms. Williams' drainage problems. This last action was taken under threat of prosecution by the Board's investigators and was done in spite of the fact, which is uncontroverted, that the construction did not address modifications to the plumbing in the house. After the Respondent had taken these actions, Ms. Williams than wanted the cabinets and other work, which had been done by Farmer, replaced because of water damage caused by the drainage problem.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Construction Industry Licensing Board is authorized by Chapter 489, Florida Statutes, to discipline persons licensed and certified as contractors pursuant to said chapter. This Recommended Order is entered pursuant to the provisions of Section 120.57(1), Florida Statutes.

16. The Amended Administrative Complaint charges Respondent with violating Sections 489.129(1)(d) and (k) Florida Statutes, by failing to obtain a building permit and abandoning a job. Although the testimony of the witnesses was conflicting, a general picture of what occurred developed which is consistent as it relates to these allegations. It is clear that S. J. Farmer, who did not work for Behr Contracting, had begun work on Ms. Williams' home prior to any involvement by the Respondent or Behr Contracting. The Petitioner failed to prove the existence of a remodeling contract between Ms. Williams and Behr Contracting. After Farmer had begun work on the Williams house, he approached the Respondent and requested the Respondent's assistance for an estimate of the cost of completing the project and requested financing through Behr Contracting. The Respondent arranged for this to occur. The estimate of the work to be done (Petitioner's Exhibit 3) and the financing contract (Petitioner's Exhibit 2) are consistent with the Respondent's testimony. The fact that financing was provided on the project through Behr Contracting, when it was not the contractor, is not inconsistent with Behr Contracting's business practices and mortgage brokerage business. Ms. Williams, the complaining witness, stated that Farmer was the first person she spoke with and the first person on the job. She saw the Respondent only when Farmer ordered supplies from Behr Contracting. Her testimony is consistent with the Respondent's assertions concerning the events which are the subject of the Amended Administrative Complaint.

    
    

17. Having failed to prove that Behr Contracting was the contractor in fact, Petitioner has failed to show that the Respondent, as qualifying agent for Behr Contracting, had any legal obligation to pull a building permit or to make repairs beyond the adjustments which Behr Contracting made. Petitioner has not proven violations of Sections 489.129(1)(d) and (k) , Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Amended Administrative Complaint against the Respondent, Edward Ryan, be dismissed.

DONE and RECOMMENDED this 20th day of September, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983

COPIES FURNISHED:

Michael J. Cohen, Esquire Kristin Building, Suite 101

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 32206

Mr. Edward Ryan 19762 Bel Aire Drive

Miami, Florida 33138

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-001339

Orders for Case No: 82-001339