STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1587

)

WILLIE J. WHITINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on August 27, 1982, in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Willie J. Whittington, pro se

7660 North State Road 7 Pompano Beach, Florida 33067

ISSUE

The issue for determination at the final hearing was whether the license of Respondent Willie J. Whittington should be revoked, suspended or otherwise disciplined for the acts alleged in the Administrative Complaint filed May 19, 1982.

At the final hearing, Cathi Cox and Dr. Carol E. McWilliams testified for the Petitioner. Petitioner's Exhibits 1-8 were offered and admitted into evidence. The Respondent testified on his own behalf and Respondent's Exhibit No. 1 was admitted into evidence. Following the final hearing, the Respondent furnished the Hearing Officer with written estimates of the cost of the added work performed at the construction site. These estimates have been marked and are admitted as Respondent's Exhibits 2-7. Additionally, official recognition was taken of Palm Beach County Construction Industry Licensing Board Specialty Contractor Standards.

Proposed Recommended Orders have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by the weight of credible evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

At the final hearing, the parties orally stipulated to the following facts contained in paragraphs 1-6:

1. The Respondent Willie J. Whittington is a certified general contractor having been issued license number CC 006966. The last known address of the Respondent is Whittington & Sons Builders, Inc., 7660 North State Road 7, Pompano Beach, Florida 33067.

   
   

2. The Respondent Whittington is the qualifying agent for Whittington & Sons Builders, Inc.

   
   

3. On July 28, 1980, Whittington & Sons Builders, Inc., entered into a contract with Carol E. McWilliams to remodel a veterinary office located at 2775 South State Road 7, West Palm Beach, Florida, for the sum of $30,000.

   
   

4. Two separate contracts were executed by the parties for the job; the first one in the amount of $30,000 while the second was for $35,000. The

   $35,000 contract was a falsification and was executed in order to aid Dr. McWilliams in obtaining a larger loan from her bank.

   
   

5. To date, the Respondent Whittington has received approximately

   $30,668.70 from Dr. McWilliams.

   
   

6. Although the Respondent did not provide a $2,000 well and septic tank as specified in the contract, he substituted a drain field and pump with a combined value of $1,589.00.

   
   

7. Additionally, the Respondent provided extras on the job totaling approximately $2,500, including stucco, plumbing fixtures, tile, locks, a rear door and extra window.

   
   

8. Dr. McWilliams was required to expend $536.92 for lighting fixtures when the existing fixtures were stolen from the job site. The Respondent was to have reinstalled the existing fixtures in the remodeled building. The fixtures were stored on Dr. McWilliams' property behind a locked chain link fence. Pursuant to the construction contract, however, the Respondent was not responsible for furnishing electrical or plumbing fixtures.

   
   

9. During the course of this project, numerous changes were made in the original agreement. It is uncertain from the testimony how the changes came about; it is undisputed however, that numerous items not contemplated by the agreement were furnished by the Respondent and accepted by Dr. McWilliams.

   
   

10. The Respondent obtained a permit to install an air conditioning unit from the county. The unit was installed by the Respondent and his son-in-law, neither of whom are licensed as air conditioning contractors. The Respondent replaced an existing unit which had been stolen and did not perform any duct work in connection with such installation.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. See Section 120.57(1), Florida Statutes.

12. The Respondent Whittington is charged with violating Sections 489.129(1)(h), (j) and (m), Florida Statutes. These provisions empower the Board to take disciplinary action against a licensee found guilty of:

    
    

    (h) [d]iversion of funds or property received for Prosecution or completion of

    a specified construction project or operation when as a result of the diversion the con- tractor is or will be unable to fulfill the terms of his obligation or contract.

    (j) [f]ailure in any material respect

    to comply with the provisions of this act. continued evidence-that the licensee

    is guilty of fraud or deceit or of gross neg- ligence, incompetency, or misconduct in the practice of contracting.

    
    

13. Counts I and II of the Administrative Complaint allege that the Respondent violated Sections 489.129(1)(h) and (m), Florida Statutes, by his actions in implementing the McWilliams contract. In Count II it is charged that the Respondent diverted funds on the project by failing to provide a well and septic tank and ordering lighting fixtures which he failed to pay for. In Count I it is charged that Respondent engaged in continued misconduct by failing to perform grading and clearing, leaving a window spring on the site broken and failing to furnish the above noted well and septic tank.

    
    

14. As to the first Count, the acts alleged by the Petitioner do not rise to the level of "continued evidence" of fraud, deceit, gross negligence, incompetency or misconduct in the practice of contracting by the Respondent. The evidence demonstrates that the parties entered into a vague and ambiguous agreement out of which, not unexpectedly, a dispute arose over the responsibility for providing certain items required to be installed in order to

    complete the contract. Whether Dr. McWilliams specifically agreed to all of the charges and extras provided by the Respondent is unclear; it is undisputed, however, that the changes were made, and items outside the scope of the original agreement were installed. There is no evidence that the Respondent acted against the direction of Dr. McWilliams in adding the extras or making changes. Regarding the well and septic tank specified in the contract, the existing well was found to be functioning and the contract was apparently orally modified by the parties so that a drain field and pump was furnished in lieu of the septic tank and well.

    
    

15. The grading and clearing and broken window lock constitute minor expenses which do not rise to the level of continued misconduct by the Respondent. In any event, such incidental expenses have been offset by the extras furnished by the Respondent.

    
    

16. As to Count II, no evidence was presented that the Respondent diverted the funds he received for the septic tank and well and that as a result of such diversion, he was unable to fulfill the terms of his contract with Dr. McWilliams. Similarly, the dispute between Dr. McWilliams and the Respondent over the lighting fixtures ordered when the original fixtures were stolen, does not prove a diversion of funds on the Respondent's part. It is unclear who was legally responsible for the loss of the original lighting fixtures which were to be reinstalled in the new building. In any event, in order to complete the project, the Respondent ordered fixtures to replace those that were stolen.

    These replacement fixtures presumably were installed and utilized with the knowledge of the complainant that they were replacements for those stolen from the job site.

    
    

17. Finally, the Respondent is charged in Count III with installing the air conditioning unit on the McWilliams job without being properly qualified to perform air conditioning contracting, thereby, violating Section 489.113(3), Florida Statutes, which requires air conditioning work to be subcontracted in a county in which a local license is required.

    
    

18. Chapter 75-476, Laws of Florida, which amended Chapters 67-1876 and

    69-1433, Laws of Florida, authorizes a general contractor licensed in Palm Beach County to contract for and take out permits for installing room air conditioners and for the work of any specialty contractor except that of air conditioning contractors, refrigerator contractors and elevator contractors. Since Palm Beach County possesses a special act which requires a licensee to perform the air conditioning work required on the McWilliams job, the Respondent was not authorized to install the air conditioning unit and should have subcontracted that portion of the contract to a duly licensed air conditioning contractor.

    
    

19. In sum, the Petitioner failed to demonstrate by a preponderance of the evidence that the Respondent violated Sections 489.129(1)(h) and (m), Florida Statutes, as alleged in Counts I and II of the Administrative Complaint. As to Count III, the Petitioner met its burden of proving by a preponderance of the evidence that the Respondent violated Section 489.129(1)(j), Florida Statutes, by operation of Section 489.113(3), Florida Statutes, in failing to subcontract the installation of a replacement air conditioning unit on the job site.

    
    

20. In determining an appropriate penalty for the violation of Count III, it is assumed that the Respondent has not been the subject of any previous disciplinary proceedings involving his general contractor's license, since no such evidence was presented at the administrative hearing. Additionally, no evidence was presented that the replacement air conditioning unit was incorrectly installed, failed a building inspection or resulted in any damage to any person or property. In administrative proceedings, the penalty should appropriately correspond to the gravity of the violation and resultant injury therefrom. See Flaig v. Pest Control Commission, 213 So.2d 471 (Fla. 1st DCA 1968). In the instant case the county erroneously issued a permit to the Respondent to install the unit. While it was installed in violation of the special act in effect in Palm Beach County, the violation is not serious and does not warrant the suspension of Respondent's license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent Willie J. Whittington be found guilty of violating Section 489.129(1)(j), Florida Statutes, and be issued a reprimand.

DONE and ENTERED this 17th day of January, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, 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 17th day of January, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

Willie J Whittington 7660 North State Road 7

Pompano Beach, Florida 33067

Fred Roche, Secretary Department of Professional Regulation

Old Courthouse Square

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: 82-001587

Orders for Case No: 82-001587