STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-525

)

CAREY L. HENDRIX, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on June 29, 1983, in Bradenton, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on a two-count Administrative Complaint filed by the Construction Industry Licensing Board against the Respondent, Carey L. Hendrix, alleging that he had failed to register as qualifier for New World Homes and had fraudulently misrepresented matters in the practice of his profession.

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Carey L. Hendrix, pro se

7712 Second Avenue, Northwest Bradenton, Florida 33529

ISSUE

The following issues were presented in this cause:

1. Did the Respondent properly qualify New World Homes?

   
   

2. Did the Respondent make fraudulent misrepresentations related to contracting?

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 the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Carey L. Hendrix, is a registered residential contractor holding license number RR 0027167 issued by the Construction Industry Licensing Board through the Department of Professional Regulation.

   
   

2. At the hearing, the Respondent admitted to the violations alleged in Count I of the Administrative Complaint, in that he failed to register as qualifying agent for New World Homes, a business entity under which he was conducting his contracting business on or about September 21, 1980. Respondent's failure to properly register was an unintentional oversight on his part.

   
   

3. The allegations of fraud and misrepresentation in the profession of contracting arise from a letter dated April 22, 1982, addressed to Lane Hendrix at 2712 Fifteenth Avenue, West, Bradenton, Florida 33505, from Scott M. Brownell, attorney for Barbara Sailors (Petitioner's Exhibit 1). The Administrative Complaint specifically alleges that by failing to perform the jobs set forth in this letter in paragraphs numbered 1 through 10, the Respondent made false representations in the course of contracting.

   
   

4. The letter (Petitioner's Exhibit 1), which is the subject of this controversy, was an offer by Brownell to settle a dispute between the Respondent and Ms. Sailors relating to a home Respondent had built for Sailors. The last paragraph of the letter states, "If this recitation of our agreement in any way differs from your understanding, please contact me at once."

   
   

5. The Respondent did not contact Brownell regarding the agreement.

   
   

6. The letter (Petitioner's Exhibit 1) recites that part of the consideration for Respondent's performing the jobs was withdrawal by Ms. Sailors of her complaint with the Department of Professional Regulation. While Ms. Sailors could have withdrawn her complaint, this would not have affected the Board's consideration of the matter. Her offer was of no value.

   
   

7. On page two of the subject letter, unnumbered paragraph four states that after the estimates have been received and the supplies have been purchased by Ms. Sailors, "my clients will contact you and will expect, within two (2) weeks, an appointment be made for the completion of this work." The record does not reflect that Sailors contacted the Respondent as required in the above- quoted paragraph.

   
   

8. Further, although not contacted by Ms. Sailors as indicated in Petitioner's Exhibit 1, the Respondent did send two employees to Sailors' house on or about May 24, 1982. Upon their arrival at the Sailors' house, these employees found that another contractor had been engaged by Ms. Sailors to replace certain portions of the deck and railing at the house (Item 9 of Petitioner's Exhibit 1). At that time, Ms. Sailors prepared a list of items of work (Petitioner's Exhibit 5) to be done by the Respondent in lieu of Item 9, as set forth in Petitioner's Exhibit 1. Respondent's employees repaired a few items on the list but were unable to do many of them because of the work being performed by the other contractor.

   
   

9. The employees returned to Respondent, advised him of the presence of another contractor on the job, and presented to him the new list of repair items given to them by Ms. Sailors (Petitioner's Exhibit 5).

10. The Respondent called Jim McGuirt, an investigator for the Department of Professional Regulation, regarding the situation which his employees had encountered. McGuirt advised the Respondent that if another contractor were on the job the Respondent would not have to do anything.

    
    

11. No evidence was introduced that any of Respondent's work, which was the subject of Petitioner's Exhibit 1, was substandard or contrary to the codes. Evidence was received that the construction was inspected by local building authorities and a certificate of occupancy issued. As of the date of hearing, Ms. Sailors resided in the subject residence.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Construction Industry Licensing Board has authority to discipline its registrants and licensees pursuant to Chapter 489, Florida Statutes. This Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.

    
    

13. Regarding Count I of the Administrative Complaint, the Respondent admitted that he did not properly register New World Homes, the business entity in which name he was contracting in September 1980. The Respondent is in violation of Sections 489.119(2) and (3) and Sections 489.129(1)(g) and (j), Florida Statutes.

    
    

14. The bases for Count II of the Administrative Complaint are allegations that the Respondent failed to perform the items listed in a letter which was a proposed settlement of a dispute between the Respondent and the owner of a house constructed by him, contrary to Section 489.129(6), which incorporates Section

    455.227 (1)(a), Florida Statutes. Section 455.227(1)(a), supra, provides:

    
    

    1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

       1. The licensee has made

    misleading, deceptive, untrue, or fraud- ulent representations in the practice of his profession;

    
    

15. There is no allegation and no proof that the Respondent failed to adhere to any local code or that the Respondent's work for Ms. Sailors was not up to workmanlike standards. Their dispute was solely a civil matter regarding their original contract. The facts show that the Respondent never signed any agreement or acknowledged the letter (Petitioner's Exhibit 1) as a statement of their agreement. To the extent that this letter by Sailors' attorney may be taken as a memorialization of the Respondent's oral agreement to perform the jobs listed therein, the following are noted:

    
    

    1. It is well settled that silence by the offeree cannot be established by offeror as an indication of acceptance of an agreement.

    2. There was a partial failure of consider- ation on the part of Ms. Sailors, because she could not cause the Department of Professional Regulation to withdraw its complaint against Respondent.

    3. Ms. Sailors did not perform as required

       by the agreement and contact the Respondent as required by the fourth paragraph on page two of the letter.

    4. By engaging another contractor to perform the work related in Item 9 of the letter, Ms. Sailors indicated her lack of dependence upon the agreement.

    5. By presenting the Respondent with an additional list of items to be done in lieu of Item 9, Ms. Sailors unilaterally modified the agreement.

       
       

16. The only evidence tending to show the Respondent's acceptance of the offer of settlement was the dispatch of his employees to Ms. Sailors' house to work on items listed in the letter. However, the employees went to the Sailors residence long after the time frame set forth in that letter. Clearly, by Sailors' acts in hiring another contractor and seeking to amend the original offer, said offer had been withdrawn as of that date.

    
    

17. The purpose of Section 455.227(1)(a), Florida Statutes, is to discipline licensees who made fraudulent misrepresentations in the course of their profession. This law is not intended, and this forum is not equipped, to litigate contract disputes between persons who deal at arm's length. The letter of April 22, 1982, reflects an attempt by Sailors' attorney to settle a dispute between Ms. Sailors and the Respondent. This letter is not a contract and not evidence of an oral representation by the Respondent. Count II of the Administrative Complaint is based solely upon these alleged false representations of the Respondent. Considering the facts and law, there was no agreement or evidence of affirmative representations by the Respondent regarding what he would do. Respondent did not violate Section 455. 227(1)(a), Florida Statutes.

RECOMMENDATION

Having found the Respondent, Carey L. Hendrix, guilty of one offense of violating Sections 489.129(1)(g) and (j), Florida Statutes, by violating Sections 489.119(2) and (3), Florida Statutes, it is recommended that the Respondent receive a letter of reprimand and be assessed a civil penalty of

$300.

DONE and RECOMMENDED this 8th 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 8th day of September, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street, Suite 204

Tallahassee, Florida 32301

Carey L. Hendrix

7712 South Avenue, NW Bradenton, Florida 33529

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: 83-000525

Orders for Case No: 83-000525