STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 84-1110
)
PHILLIP HARRISON BARE, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Notice of Hearing forwarded to all the parties on May 9, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings on August 20, 1984, in Ocala, Florida. The issue for consideration in this case was whether the Respondent's license as a registered general contractor in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
APPEARANCES
For Petitioner: Stephanie Daniels, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Was not present and was not represented.
BACKGROUND INFORMATION
On February 16, 1984, the Petitioner, Construction Industry Licensing Board, (CILB), with the Department of Professional Regulation, issued an Administrative Complaint in this case in which it alleged numerous violations of Sections 489.129 (1), Florida Statutes, as well as violations of Sections 489.115, 489.127, and 455.227, Florida Statutes, 1979. Thereafter, on March 15, 1984, the Respondent, Phillip Harrison Bare, executed an Election of Rights form on which he disputed the allegations contained in the Administrative Complaint, and requested a formal hearing.
At the hearing, Petitioner presented the testimony of Keith Lamar Jones, Chief Building Inspector for Lake County, Florida; Michael James Cash, Building Inspector for Marion County, Florida; Ronald Edward Elliott, an Investigator with the Florida Office of the Comptroller; Mr. and Mrs. LeRoy Pruitt, homeowners in Ocala, Florida; Edward Garr, Code Enforcement Inspector for the
City of Ocala, Florida; Micque Little, homeowner from Okahumpka, Florida; E. O. Hodge, Sr., a mortgage investor in Clermont, Florida; Ollise Mitchell, a homeowner in Citra, Florida; and Mr. and Mrs. Ethorn Buie, homeowners from Ocala, Florida. Petitioner also introduced Petitioner's Exhibits 1 through 32.
Respondent was notified of the time and place of the hearing by Notice of Hearing dated May 9, 1984. The Notice was forwarded by U.S. Mail and was not returned undelivered. Consequently, the hearing proceeded without Respondent being present.
Counsel for Petitioner moved that the facts alleged in its Request for Admissions furnished to Respondent on May 3, 1984 be deemed admitted due to Respondent's failure to respond within the time set forth in the Notice and provided for in the Florida Rules of Civil Procedure. Based on a representation by Petitioner's counsel that no response had been submitted by Respondent, the facts contained in the request were deemed admitted.
FINDINGS OF FACT
Respondent, Phillip Harrison Bare, was first licensed as a registered general contractor by the State of Florida in December, 1974, when license number RG 0023484, was issued to him as an individual. This license was renewed on an annual basis until June 30, 1979. Effective July 1, 1979, Respondent's license went into delinquent status. It was suspended for one year by Petitioner, CILB, effective June 22, 1979. In addition to the suspension, the Board imposed a $500.00 fine on Respondent which, to this date, has not been paid. Respondent's license as a registered general contractor has not been revoked or voluntarily surrendered. He has never been licensed as a roofing contractor by the state. A search of the records of CILB also indicates that Southern Improvement and Siding Company, Inc., is not now, nor has it ever been, qualified by Respondent or any other licensee of the CILB. However, during the period 1980 and 1981, Respondent was doing business in the name Southern Improvement and Siding Company, Inc. His license has never been registered in Ocala, Marion County or Lake County.
On or about May 21, 1980, Respondent, doing business as Southern Improvement and Siding Company, Inc. entered into a home improvement installment sales contract with Ethorn and Alberta Buie of Ocala, Florida. The contract called for Respondent to remove the existing kitchen cabinets, install new cabinets with trim, and a new counter top in their home. Work was to begin on or about April 25, and to be completed on or about April 26, 1980. Cash price for the work was $2,800.00. Some additional funds were advanced to the Buie's by Respondent for debt consolidation consisting of $600.00 due and payable on the Buie's van and $1,900.00 for sheet rock which Mr. Buie was to install, which brought the total amount to $5,300.00. The interest charged on the home improvement portion of the contract price was $1,476.60 and on the debt consolidation portion, $1,316.80, for a total of $2,793.40. This figure, when added to the base amount of the contract, brought about a total deferred payment price of $8,093.40 which was to be paid in 60 monthly installments of $134.89 each. This reflected an annual percentage rate of 18 percent interest.
On the same date as the contract. Respondent also prevailed upon the Buie's to execute a mortgage on their home as security for the contract price. This mortgage was subsequently assigned eight days later to Mr. E. O. Hodge,
Sir. Attached to the assignment of mortgage was a sworn certificate of completion dated April 28, 1980 which reflects that all material and labor called for in the contract were furnished and installed and the work satisfactorily completed.
Consistent with the terms of the contract, Respondent ordered cabinets for the Buie kitchen from a local supplier. When they were delivered, however, the seller learned that Respondent was the individual who had purchased the cabinets, and he refused to leave them without payment. Mr. Buie subsequently borrowed $715.00 from the bank to pay for the cabinets which he, himself installed. Respondent performed no work whatever called for under the terms of the contract. All attempts by the Buie's to contact Respondent at his place of business by leaving phone messages on an answering machine were without any success. He never returned calls and never accomplished any work for them.
Respondent got the Buies to sign the mortgage and the other papers without explaining to them what these papers were. Though Mrs. Buie denies that either she or her husband ever signed a mortgage for the Respondent, the mortgage in question bears what looks to her "kind of" like her and her husband's signatures. They were not given a copy of the contract, mortgage, or the notice of right of recission by Respondent. They do not recall signing a certificate of completion but Mr. Buie's signature appears thereon. There is, actually, no doubt that Respondent prevailed upon the Buies to signs the documents in question and that the signatures on them are theirs.
On May 12, 1980, Respondent, still doing business as Southern Improvement and Siding Co., Inc., entered into a home improvement installment contract with Lillie Terry and Ollise Mitchell to do some work on their home in Citra, Florida. The work to be done consisted of the removal and replacement of the roof; the replacement of all rotten sheeting and facia boards; the replacement of flooring on the front porch; the installation of new front and back doors with locks; the installation of a new screen door at the front; the installation of paneling in two bedrooms; the installation of ceiling tile in the front room and kitchen: the leveling of concrete piers around the house, and the painting of the exterior of the house with one coat of latex paint. The total price for this work was $2,850.00 with interest at 18 percent for 60 months. Deferred payment price was $4,342.80 to be paid in the monthly amount of $72.38. On the same day that the contract was signed, both homeowners were given a notice of right of recission which they acknowledged, and they also executed a mortgage on their property to Southern Improvement and Siding Company, Inc. Several days later, on June 13, 1980, they executed the certificate of completion for the work and thereafter, on June 17, 1980, Respondent assigned the mortgage previously given to Southern to Mr. E. O. Hodge, Sr., identified previously.
Work on the house was begun approximately one week after the contract was signed but was not completed nor was much done until late 1980 to mid 1981. The work was done in snatches and after mid 1981 Respondent quit work on their house and never returned. Repeated calls left on his answering machine were unanswered. All the work called for in the contract was done except the paneling in the two bedrooms and the screen door. Neither of these items was accomplished. The work that was done, however, was of poor quality.
Though the evidence shows that these ladies signed a certificate of completion, Mr. Mitchell contends she did not know what it was when she signed it, and when she received the letter from Mr. Hodges reflecting that the mortgage had been assigned to him, Respondent was still working on the property.
Mr. Hodges had indicated that he would not take an assignment of a mortgage until the work was completed and a certificate of completion furnished him. From the state of the evidence here, it is obvious that Respondent secured certificates of completion before completing the work.
On or about May 21, 1980 Mr. LeRoy Pruitt, who can neither read nor write, was contacted by Respondent concerning doing some repair and modification to the Pruitt home in Ocala, Florida. Mr. Bare prepared a proposal on a form bearing the heading American General Corporation of Florida in which he proposed to build an addition to the existing house and do the finishing work thereon.
On May 23, 1980, before any work was done, he came back to the Pruitts and secured from them an $800.00 down payment on the proposal, to be applied against the $7,700.00 total cash price of their project. On May 26, he came back and had the Pruitts sign two separate installment contracts with Southern Improvement and Siding Company, Inc. The first contract was to build the 11 by
24 foot addition for a cash price of $5,100.00 from which the down payment of
$400.00 was deducted leaving an unpaid cash balance- of $4,700.00. Finance charges of $5,014.00, representing 10 years of interest at 16.75 percent, raised the total price of this contract to $9,714.00. The second contract, for the finishing work, in the amount of $3,400.00, from which $400.00 down payment was deducted was to be paid off over 5 years at an interest rate of 16.75 percent also. The total price on this contract was $4,449.60. The 10 year contract was to be paid at $80.95 per month and the 5 year contract was to be paid at $74.16 per month.
That same day, May 26, 1980, Respondent also got the Pruitts to sign two separate mortgage deeds on their property - one for each of the two contracts. Mr. Pruitt signed all these documents because he believed the Respondent to be honest. He believed that all the work was to cost him
$9,000.00 instead of the in excess of $14,000.00 total for the two contracts. Respondent didn't start work on the project until two months after the contract was signed. Even when work was begun, Respondent merely framed in the addition, put in the floor and the ceiling, and then quit. Mr. Pruitt had to have someone else finish the job at a cost of an additional $2,000.00. Respondent, at no time, pulled a permit for the construction work he did, or agreed to do, under the contract. The Pruitts received their mortgage payment books for the two mortgages from the assignee of the mortgage before the work was even started.
They were surprised to see that the mortgages had been assigned to Mr. E. O. Hodge. Even after Respondent quit work on the project, they continued to make the monthly mortgage payments of $155.05 for both mortgages.
On July 13, 1980, Respondent, still acting for Southern Improvement and Siding, Inc., entered into a home improvement installment contract with Susie and Shirley Williams to do repair work on their home in Ocala, Florida. This work was to include removing existing windows and installing aluminum ones; rescreening the front porch; installing an exterior and interior door; putting a ceiling in the bathroom with paneling; replacing some flooring and installing some floor joists; and installing sheet rock in the kitchen. The cash price for this job, which was supposed to have been started on July 21, and been completed on July 30, 1980, was $2,900.00. When interest at 16 percent for 5 years was added, the total price amounted to $4,419.00. On the same day the contract was signed, Respondent furnished to the Williams' a notice of right of recission, and he also secured a mortgage on their property in favor of Southern Improvement and Siding Company, Inc. Though Respondent did not fix the floor joists or flooring, on July 23, 1980, he secured from Susie Williams a certificate of completion. Thereafter, on July 24, 1980, he assigned the Williams mortgage to Mr. Hodge.
Somewhat later, on January 7, 1981, Respondent, as owner of Southern Improvement and Siding Company, Inc., entered into a home improvement installment sales contract with John Fields for repairs to his home in Ocala, Florida. These repairs were to include installing a kitchen sink; hooking up a tub and commode; and installing facia boards in both the front and back of the house. The cash price for this work was to be $2,200.00 and it was to be completed by January 15, 1981. However, when an interest rate of 17.6 percent was applied, according to the terms of the contract, for 48 months, the total price of the work was raised to $3,079. 68. On the same day the contract was signed, Mr. Bare secured from Mr. Fields a mortgage on his property to cover the cost of the repairs. Thereafter, Respondent secured the signature of Mr. Fields on an undated Certificate of Completion form, and on January 7, 1981, the date of the contract and mortgage were signed by Mr. Fields, he assigned the mortgage to Mr. E. O. Hodge, Sr. No work was performed under the terms of this contract on the Fields property.
On August 4, 1981, Micque Little, signed a mortgage note in favor of Southern Improvement and Siding Company, Inc. in the amount of $2,800.00 with interest at 18 percent, to be paid in monthly installments of $58.86 per month, for the Respondent to some repairs on her house in Okahumpaka, Florida. The work was to include reroofing the house on the north side; installing hot tar and gravel on the addition; repairing the existing plumbing; installing a new bathroom vanity and sink; installing 10 feet of kitchen base cabinets; replacing rotten facia boards; replacing a window pane in the bedroom; and putting a coating on the existing tin roof. On the same date, she signed the Notice Of Recission furnished her by Respondent and an affidavit stating that she understood her first payment was due on September 15, 1981. Though the work was not done to her satisfaction in that the roof still leaks as does the sink, on August, 19, 1981, she signed a certificate of completion. Once she signed the initial mortgage and agreement, she did not see the Respondent again. What work was done by other. At the time she signed the documents for the Respondent, be did not explain them to her nor did he give her time to read them. The terms of the mortgage were explained to her by Mr. Hodges at a later date. She signed the completion certificate for Respondent on his representation that he would get someone out to fix what had to be fixed but he never did this. Little had to pay extra to get someone else to fix the work that Respondent's crew was supposed to have done. Respondent failed to pull a permit for any of the work done or called for in the contract.
In August, 1981, while doing business as Southern Improvement and Siding Company, Inc. (Southern), Respondent contracted with Ernest Gram, of Yalaha, Florida, to replace the roof on the Gram residence and install two outside doors and two steps. The contract price for this proposed modification was $8,000.00. Thereafter, Southern removed the old roof as required and installed ruled roofing in its place. The contract entered into by Respondent and Gram called for installation of shingle roofing. Shingle roofing is different than ruled roofing. Respondent at no time installed the doors or the steps as called for in the contract. Respondent failed to pull a permit for any of the work done or called for in the contract.
Mr. E. O. Hodges, Sr. of Clermont, Florida started investing with the Respondent in 1973. When he started buying Respondent's mortgages, he found Respondent to be quite reliable based on his personal checking of Respondent's projects. He found Respondent to be timely in getting the work done and on the basis of his own observation, developed a trust in Respondent that made him quit checking out the individual jobs. Mr. Hodge contends that every mortgage that
he bought was contingent upon his receiving a certificate of completion and that he would not buy a mortgage without one. He also contends that on most of the mortgages, he did not know that the work was not completed and did not learn of the difficulties until as much as a year after the Respondent walked off the job. Mr. Hodge's testimony, however, is unworthy of belief in that he contends that he personally checked the Fields job in January, 1981 before he bought that mortgage. No work was done by Respondent at all under the Fields contract.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Respondent, in each of the seven counts herein, is alleged to have violated various provision of Section 489.129(1), Florida Statutes (1979 and 1981); specifically, subsections (c), (g), (j), (k), and (m), which provide for the discipline of a license when it can be shown that the license holder is guilty of:
(c) Violations of Chapter 455.
(g) Acting in the capacity of a contractor under any certificate of registration issued hereunder except in the name of the certificate holder or registrant, as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrat as set forth in the application for the certificate or registration, or as later changed as provided in the act.
Failure in any material aspect to comply with the provisions of this act.
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.
These specific provisions of the 1979 and 1981 editions of the Florida Statutes are identical.
Violations of subsection (j), supra, are alleged in each Count of the Administrative Complaint. Specifically, it is alleged that Respondent (a) contracted for work not covered by his registration (roofing), in violation of Section 489.117(2); (b) failed to qualify a company (Southern) through which he engaged in contracting, as required by Section 489.119(2) and (3); and (,c) engaged in contracting without renewing his registration as required by Section
489. 115(3)(a) and (h). Section 489.117(2), Florida Statutes, stipulates that registration, as compared with certification, allows the licensee to engage in contracting only in those political subdivisions of the state where he has complied with the local requirements and then, only to do the type of work
covered by the registration. In this case, the evidence of record, unrebutted by Respondent, established that he was not registered anywhere as a roofer, or at all in Ocala, Marion County or Lake County and, therefore, is in violation of the Statute as alleged in the various Counts of the Administrative Complaint.
Section 489.119, Florida Statutes, requires a contractor doing business as a legal entity other than an individual, to qualify that entity with the Board. The unrebutted evidence here also reveals that in each case alleged, Respondent contracted with the various homeowners in the name of Southern Improvement and Siding Company, Inc. and that this company had never been qualified by Respondent or any other individual licensed by the Board. Therefore, these allegations in the various Counts, are clearly proven. This same evidence also establishes those allegations that Respondent acted as a contractor in a name other than as issued on his registration, as is prescribed by Section 489.129(1)(g), supra. The Petitioner's unrebutted evidence further establishes, as is alleged repeatedly in the Administrative Complaint, that Respondent engaged in contracting without renewing his registration as is required by Section 489.115(3)(a) and (b), and that as of August 14, 1984, Respondent's license, which became delinquent in 1979, was still delinquent.
The evidence of record establishes that all the contracts entered into by Respondent, as alleged, were subsequent to his license becoming delinquent.
There is ample evidence to show the Respondent abandoned the Gram job by failing to install the door or steps as called for in the contract. This abandonment is a violation of Section 489.129(1)(k). The evidence also shows he abandoned the Pruitt job when he failed to complete the inside of the addition to the house; the Mitchell/Terry project when he failed to install the paneling in the bedrooms and the screen door . He failed to do any of the work called for in the Buie contract or the Fields contract; he failed to fix the floor joists and flooring, as called for in the Williams contract; and he failed to properly fix the roof and install the vanity called for in the Little contract.
In Count Four of the Administrative Complaint, Respondent is charged, inter alia, with making untrue, misleading deceptive or fraudulent representations in the practice of contracting by securing a mortgage on the Buie property as security for the contract to do some work on the property in addition to debt consolidation advances, and thereafter failing to do any of the work called for under the contract while immediately selling that contract to an outside investor. These allegations are all supported by the unrebutted evidence of record and constitute a violation of Section 455.277(1(a), and also a violation of Section 489.129(1(c), Florida Statutes, supra. This same evidence also constitutes fraud in the practice of contracting which is a violation of Section 489.129(1)(m) Florida Statute, supra. The same statutory provisions cited next above were also violated by Respondent when he entered into a contract with Mr. Fields to do work on his house, immediately secured a mortgage on the property which he then sold to an investor, and failed to do any of the work called for by the contract. While there is no evidence as to what representations he made to Ms. Williams to induce her to sign the contract with him, the evidence does clearly indicate he failed to complete the job as called for in the contract and supports a conclusion that Section 489.129(1(k), supra, was violated, if not Section 45.227(1)(a), supra.
Taken together, the unrebutted evidence of record shows a continuing disregard not only on the laws of the State of Florida regarding the licensing of contractors, but also a disregard for the property rights of others that borders on the disgraceful. Clearly, in light of the previous disciplinary
action taken against this Respondent, this subsequent continuing misconduct demonstrates that he has no rehabilitative potential whatever and supports the imposition of the maximum penalty available.
Based on the foregoing, it is, therefore:
RECOMMENDED THAT Respondent's license as a registered general contractor in the State of Florida be revoked and that he be fined $1,000.00.
RECOMMENDED this 6th day of September, 1984, in Tallahassee, Leon County, Florida.
ARNOLD H. POLLOCK
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 6 day of September, 1984.
COPIES FURNISHED:
Douglas A. Shropshire, Esquire Department of Professional
Regulation
130 North Monore Street Tallahassee, Florida 32301
Mr. Phillip H. Bare 3920 S.W. Sixth Avenue Ocala, Florida 32674
James Linnan, Executive Director Post Office Box 2
Jacksonville, Florida 32202
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Stephanie Daniels, Esquire
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Dec. 04, 1990 | Final Order filed. |
| Sep. 06, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 26, 1984 | Agency Final Order | |
| Sep. 06, 1984 | Recommended Order | Evidence shows contractor operated as such without qualification, abandoned job, and lied, which is all misconduct subject to discipline. |
