STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2261

)

HOWARD G. RIENECKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on August 18, 1983, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

2715 E. Oakland Park Boulevard, Suite 101 Ft. Lauderdale, Florida 33306

For Respondent: Howard G. Rienecker, pro se

1210 Old Boynton Road, Apartment 113 Boynton Beach, Florida 33435

ISSUE

Whether respondent's license as a certified general contractor should he disciplined on charges of abandonment, diversion, violation of applicable building codes, improper qualification of companies under whose name he was conducting business, and continued misconduct in the practice of contracting, in violation of Chapter 489, Part I, Florida Statutes.

BACKGROUND

By a five-count administrative complaint dated May 7, 1982, petitioner, Department of Professional Regulation, Construction Industry Licensing Board ("Department") , charged respondent Howard G. Rienecker ("respondent") with various violations of Chapter 489, Part I, Florida Statutes, the Construction Industry Licensing Law.

Respondent disputed the charges and requested a Section 120.57(1) hearing.

On August 12, 1982, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for December 28, 1982, then continued on the parties' joint motion, and reset for June 8, 1983. On respondent's subsequent unopposed motion, hearing was continued, and reset for August 18, 1983.

At hearing the Department presented the testimony of Alfred Ervin, Martin Yedvarb, Edgar E. Howell, William Grummer, Robert Popiel, and the respondent, who also testified in his own behalf. Petitioner's Exhibit Nos. 1-9 were received into evidence. 1/

The Department filed proposed findings of fact by September 29, 1983. The respondent did not file proposed findings.

Based on the evidence presented at hearing, the following findings are determined:

FINDINGS OF FACT

1. At all times relevant to the charges, respondent was a certified general contractor holding license no. CG C015937. He now resides at 1210 Old Boynton Road, Apartment 113, Boynton Beach, Florida. (Testimony of respondent; P-1)

   
   

   I.

   
   

   Count I: Abandonment of a Construction Project

   
   

2. On or about October 30, 1980, respondent, d/b/a P & R Construction, a subsidiary of New Visions, Inc., entered into a contract with Mr. and Mrs. A. J. Ervin to construct a bathroom addition to their residence located at 1119 Lake Terrace, No. 101, Boynton Beach, Florida, for the sum of $4,500. (Testimony of respondent)

   
   

3. Respondent was the contractor of record for this project. He pulled the required building permit, hired the subcontractors, and supervised the project. Robert Popiel, owner of New Vision, Inc., kept the company's books, paid bills, and handled sales. (Testimony of respondent; P-9)

   
   

4. In June of 1981, respondent abandoned the construction project, leaving it uncompleted. Neither the bathroom door nor the shower door had been installed; exterior stucco beneath the bathroom window (which had been removed to repair a leak) had not been replaced; and the bathroom floor was unfinished. Final inspections had not been made and a certificate of occupancy had not been obtained. During the next four or five months, Mr. Ervin tried, unsuccessfully, to locate respondent and persuade him to return and complete the project. Eventually, Mr. Ervin hired another contractor and paid him $500 to complete the unfinished work. (Testimony of Ervin, respondent)

   
   

5. When respondent abandoned the project, the plumbing (Archie's Plumbing), roofing (Modern Roofing), and electrical (Jerry's Electric) subcontractors, who had performed work and furnished materials for the project, were left unpaid. The improvements were thus subject to the placement of contractors' liens. The subcontractors were owed a total of $2,107.21, although they eventually settled with the owner for a total payment of $1,100. (Testimony of Ervin, Yedvarb, Grummer)

   
   

6. Moreover, when respondent abandoned the project, there were leaks in the roof, where the bathroom joined the existing structure, and leaks below the bathroom window. (Testimony of Ervin)

7. During this time, respondent was undergoing a divorce and moving from one motel to another. Mr. Ervin tried repeatedly to contact him, but respondent neither returned his phone calls nor answered his messages. Despite the best efforts of Mr. Ervin, respondent was nowhere to be found.

   
   

   II.

   
   

   Count II: Diversion of Monies

   
   

8. Respondent did not receive a fixed salary from New Visions, Inc. Periodically, he would be paid by simply withdrawing funds from the company. During the time in question, New Vision, Inc., had four construction projects underway and respondent withdrew approximately $500. (Testimony of respondent, Popiel)

   
   

9. The various New Vision, Inc., projects, including the Ervin project, were apparently underbid. Subcontractors were paid by Mr. Popiel out of incoming funds. But both he and respondent realized that the incoming money under the various contracts would be insufficient to pay all subcontractors for work performed. (Testimony of respondent, Popiel)

   
   

10. Respondent was aware that the Ervin project was "running close" and that it "was probably running over" the contract price. (TR-53)

    
    

11. It has not been shown that respondent diverted funds received for the completion of the Ervin project and that, as a result of such diversion, he was unable to complete the work. The subcontractors were not paid because the Ervin project incurred costs which exceeded the contract price. And, since New Vision, Inc., was experiencing similar difficulties elsewhere, it had insufficient funds to cover the excess costs of the Ervin project. (Testimony of respondent, Popiel; P-9, p. 32)

    
    

    III.

    
    

    Count III: Deliberate Violation of Building Code

    
    

12. The Department alleges that respondent violated the applicable building code (Section 105.1, City of Boynton Beach Code of Ordinances) by covering the roof before the proper city inspection had been made. Pursuant to this code, it was respondent's duty to order the flat roof sheathing inspection; but it was the roofing contractor's responsibility to obtain the "tin tag" inspection before covering the roof. This is an inspection which is required to ensure that the base sheet or black felt is properly installed. Even though it was the roofing contractor's duty to call for such an inspection, the general contractor remained responsible for the entire project. (Testimony of Howell, respondent)

    
    

13. In this case, respondent called for the sheathing inspection but the roofing contractor laid the felt and covered the roof without first calling for the requisite tin tag inspection. The building code violation was thus primarily the fault of the roofing contractor and only secondarily, or derivatively, the fault of the respondent. No evidence was presented to show that respondent approved, or knew, in advance, of the roofing contractor's failure to call for the tin tag inspection. Respondent's failure to ensure that the roofing contractor called for the required inspection cannot, without more, support a conclusion that respondent knowingly and deliberately violated an applicable building code. (Testimony of Howell, respondent)

    IV.

    
    

    Count IV: Acting in a Capacity of a Contractor Under a Name Other Than as Certified

    
    

14. Respondent, d/b/a P & R Construction, a subsidiary of New Vision, Inc., contracted for and constructed a bathroom addition to the Ervin residence. However, neither company was qualified with the Construction Industry Licensing Board.

    
    

    V.

    
    

    Count V: Misconduct in the Practice of Contracting

    
    

15. In this count, the Department alleges that, by virtue of the misconduct alleged in Counts I through IV, respondent is guilty of "misconduct in the practice of contracting." No additional acts of respondent were complained of or alleged. It follows that respondent can be found guilty of this charge only to the extent he is found guilty of the charges contained in Counts I through IV.

    
    

    VI.

    
    

    Mitigation

    
    

16. There is no evidence that respondent has ever before been the subject of a disciplinary proceeding brought by the Construction Industry Licensing Board.

    
    

17. He has worked in construction most of his life and this is the only business he knows. It is his livelihood, and, in his words, the only way "I can make a decent living." (TR-134)

18. He is 59 years old. His goals are modest and tempered by experience: I'm just a small, small operator,

    and I work to make a living. I'm

    not going to get rich. I'm too old to get rich. Those things,

    thirty years ago I had that in mind. TR-134.

    He now realizes, better than before, the value of his contractor's license.

    
    

19. His misconduct in connection with the Ervin project occurred when he was in the midst of a divorce and a personal ordeal. In his own words:

    
    

    And I bounced from place to place. I bounced off the bottom. I was living down at a flea bitten motel

    here. The roaches were so thick that I never thought I'd survive it.

    
    

    So now I guess--now I got married last September and I guess I'm getting to

    appreciate things which I took for granted before. I'm just getting so I appreciate them now and what--

    you know, what I got and what I can do. TR-136

20. He admits that he did not fulfill his responsibilities from the Ervin project and understands better the hardships which his conduct imposed on Mr. Ervin.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1981).

    
    

22. License revocation proceedings, such as this, are penal in nature.

    The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance 394 So.2d 165, 172 (Fla.

    1st DCA 1981)

    
    

23. Section 489.129(1) authorizes the Construction Industry Licensing Board to revoke or suspend the certificate or registration of a contractor, impose an administrative fine not to exceed $1,000, place the contractor on probation, or reprimand or censure a contractor if the contractor is found guilty of, among other things:

    
    

    Section 489.129(1)

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    1. Acting in the capacity of a contractor under any certificate or registration

       issued hereunder except in the name of the certificate holder of registrant

       as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or

       as later changed as provided in this act.

    2. Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

    (k) Abandonment of a construction project in which the contractor is engaged or

    under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said

    project without notification to the prospective owner and without just cause.

    (m) Upon proof and continued evidence that the licensee is guilty of fraud or deceit

    or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

24. When judged by these standards, the evidence convincingly demonstrates that respondent violated Section 489.129(1)(k) as alleged in Count I, and Section 489.129(1)(g) as alleged in Count IV. To this extent, he also violated Section 489.129(1)(m) , as alleged in Count V. Counts II and III, however, have not been proven, and must be dismissed.

    
    

25. Penalty. The penalty imposed should take into account the seriousness of the offenses, the extent to which they adversely impacted others, the respondent's prior record, and any mitigating circumstances. Considered in this light, it is concluded that an administrative fine of $1,000 should be imposed against respondent.

    
    

26. The Department's proposed findings of fact have been considered in preparing this recommended order. To the extent the Department's proposed findings were consistent with the weight of the credible evidence adduced at hearing, they have been adopted and are reflected in this recommended order. To the extent the findings were not consistent with the weight of the credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which are subordinate, cumulative, immaterial, or unnecessary, have not been adopted.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Construction Industry Licensing Board impose a $1,000 fine against respondent for violating Section 489.129(1)(g), (k) , and (m), Florida Statutes.

DONE and ENTERED this 7th day of November, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 7th day of November, 1983.

ENDNOTE

1/ Petitioner's Exhibits will be referred to as "P- "; pages in the transcript will be referred to as "TR- "

COPIES FURNISHED:

Michael J. Cohen, Esquire 2715 E. Oakland Park Blvd. Suite 101

Ft. Lauderdale, Florida 33306

Howard G. Rienecker 1210 Old Boynton Road Apartment 113

Boynton Beach, Florida 33435

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry

Licensing Board

P. O. Box 2

Jacksonville, Florida 32202

Docket for Case No: 82-002261

Orders for Case No: 82-002261