DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
vs. ) CASE NO. 84-3835
Respondent. )
Upon due notice a final formal hearing was held before Hearing Officer Ella Jane P. Davis on October 1, 1985 in Altamonte Springs, Florida.
For Petitioner: W. Douglas Beason, Esquire
On October 9, 1984 the Department of Professional Regulation filed an Administrative Complaint charging Respondent with violations of Chapter 489, Florida Statutes. On October 29, 1984 Respondent filed an Answer to the Administrative Complaint.
May Respondent's contracting license be revoked, suspended or otherwise disciplined?
Petitioner presented the testimony of the following witnesses: Randall F. Patterson; Bob R. Pope; Roberta Ballenger; Joel A. Dean; and Victor F. Boucher. Petitioner's exhibits number one through fourteen were admitted into evidence.
Respondent was not present, put on no evidence, and submitted no after- filed proposals. Petitioner filed the transcript of proceedings on October 17, 1985, and filed proposed findings of fact and conclusions of law styled "Petitioner's Proposed Recommended Order" on November 8, 1985. Although additional time for filing proposals was neither applied-for nor granted, these proposals have been considered, and are ruled on within the Appendix to this Recommended Order.
Respondent is, and at all times material to the Administrative Complaint, was a registered residential contractor in the State of Florida having been issued license number RR 0032683.
On August 7, 1982 Respondent d/b/a Future Homes of America Construction Company, Inc. contracted with Victor Boucher for the construction of a single family residence at 822 Fairview Avenue, Altamonte Springs, Florida. Section
14.5 of the Fixed Price Construction Agreement provided:
The owner will, as agreed to by the contractor, request the contractor to obtain payment and performance bonds, issued by a surety and in amounts acceptable to owner, guaranteeing the full performance of contractor's payment and performance obligations hereunder. (Pet. Exh. 1, Pet.
Exh. 9).
Article 14.5 of the construction contract required Respondent to obtain a payment and performance bond. Respondent failed to obtain a payment and performance bond. During the construction of the home, Boucher asked Respondent whether a payment and performance bond had been obtained. Boucher wanted to see the bond because he was concerned about Respondent actually finishing the project. In response to Boucher's request, Respondent indicated a bond had not been obtained; however, Respondent assured Boucher that a payment and performance bond would be obtained.
On April 7, 1953 Respondent and Boucher obtained a construction loan in the amount of $54,400.00 from the American Savings and Loan Association of Florida, Winter Park, Florida. The construction loan was secured by a mortgage on the property located at 522 Fairview Avenue, Altamonte Springs, Florida. The proceeds of the construction loan were paid out in draws. American Savings and Loan Association of Florida paid the contract draws directly to Respondent.
On August 29, 1953 Respondent executed an affidavit in support of final construction draw. American Savings and Loan Association of Florida required the affidavit as a precondition to making final disbursement to Respondent of the $4,338.50 remaining on the construction loan. The affidavit provided in pertinent part:
4. The undersigned swears that construction of the improvements to the PROPERTY has been fully completed in accordance with the plans and specifications therefore,...that all persons furnishing labor or materials, engaged as subcontractors or contracting directly with the owner of the PROPERTY in connection with said improvements, except the following, identified by name, address and amount due: [none known] have been paid in full and no person, firm or corporation has or holds any claim or lien against the PROPERTY for labor or material in connection with said improvements.
Boucher was also required to sign the affidavit referred-to in Paragraph 5, above, in support of the final construction draw. Boucher's signature was required in support of the affidavit for final construction draw because Boucher had previously contacted the savings and loan association with regard to freezing the disbursement of construction funds. His request to freeze disbursements was made because Boucher was under the impression Respondent had moved to Miami and Boucher's attempts to contact Respondent had proven unsuccessful. Prior to executing the affidavit, Respondent told Boucher that certain subcontractors had not been paid. Nonetheless, Boucher, contrary to advice of legal counsel signed the affidavit knowing that certain subcontractors had not been paid and therefore knowing he was making a false affidavit. Respondent convinced Boucher that the final draw would be utilized to satisfy the remaining subcontractors and materialmen.
Respondent's Answer pleads accord and satisfaction as an affirmative defense that Boucher agreed to pay off all bills of Overhead Door Co., Future Plumbing, Quality Fiberglass, and Patterson Well Drilling but Boucher's testimony that he, Boucher, insisted Respondent meet him to pay off all subcontractors out of the final draw and Respondent did not do so, overcomes any burden of proof problems raised by this affirmative defense. (See "Conclusions of Law.")
On November 29, 1983 Patterson Well Drilling Company filed a claim of lien against Boucher's property. The claim of lien represented materials and labor furnished to Respondent in connection with the construction of the Boucher residence. The claim of lien was in the amount of $1,510.00. Although the claim of lien under oath of President Randall F. Patterson states that the services were provided between September 9 and September 12, 1983, Boucher testified that Patterson's services were actually provided prior to the August 29, 1983 execution of the affidavit in support of final construction draw. Randall F. Patterson's testimony tends to support this timeframe set out by Boucher, and although the difference in dates between Mr. Patterson's affidavit within the claim of lien and his oral testimony at formal hearing might otherwise present a credibility issue, his explanation at hearing coupled with Boucher's explanation of how he relates the dates persuade the undersigned that Patterson Well Drilling Company installed the well prior to August 29, 1983. Respondent failed to pay Patterson prior to executing the bank affidavit. Respondent also failed to pay Patterson from the funds received in the final construction draw. Boucher paid Patterson Well Drilling Company for the services represented by the claim of lien. A check substantiates that Boucher actually paid Patterson the amount of $1,562.40.
Respondent contracted with Quality Fiberglass Industries to provide materials and services in connection with the construction of the Boucher residence. Respondent failed to fully reimburse Quality Fiberglass for the services and materials provided. On August 19, 1953 Quality Fiberglass Industries filed a claim of lien against the Boucher property for $219.00. Mr. Pope, Quality's representative, testified he was actually owed $325.00 and he has never been paid. Boucher testified he was required to pay the Quality Fiberglass lien prior to the closing on the home. There is no documentary evidence to reconcile this issue and in the absence of clear evidence that Boucher paid the fee, payment of the lien or the difference in amount is not proved.
Overhead Door Company provided services to Respondent d/b/a Future Homes of America, Inc. in connection with the construction of the Boucher residence. On July 11, 1983 Overhead Door Company installed a garage door.
Although contacted on several occasions, Respondent failed to pay Overhead Door Company $356.00 for the services provided. Overhead Door Company has not otherwise been reimbursed for the services provided.
The construction plans for the Boucher home indicated a tar and gravel roof would be constructed over the patio. However, with the acquiescence of Mr. Boucher, Respondent placed rolled roofing rather than tar and gravel roofing on the patio. The construction plans were submitted in conjunction with the building permit application. According to Joel A. Dean, the county building department currently relies upon the construction plans in issuing the building permit. A contractor currently is required to notify the building department of any change or deviation from the submitted plans. This requirement enables the building department to control the type of building construction, the occupancy and use of the building, and ensures the buildings are constructed safe and watertight. Respondent did not notify the building department concerning the agreed roofing change as would be required by current requirements and requirements at the pertinent times under Section 114 of the Standard Building Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Administrative Complaint charges Respondent with the violation of Section 455.277(1)(a) Florida Statutes (1981) and Section 489.129(1)(c), (d) and
(1) Florida Statutes (1981).
In a case seeking to revoke a professional license the burden of proof is that the proof must be "clear and convincing."
There is confusing dicta in the decision in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), suggesting that the "clear and convincing" standard of proof is replaced under the Administrative Procedure Act by a "competent substantial evidence" standard of proof. Cf. also Harvey v. Department of Business Regulation, 451 So.2d 1065 (Fla. 5th DCA 1984). But the latter standard always has been and only can be, a standard for use in appellate review.
It is the proper role of the Hearing Officer (or any other trier of fact, for that matter) to choose between two possible resolutions of a factual dispute, both of which often are supported by competent, substantial evidence. The appellate standard of proof is a threshold test to ensure that there is good enough evidence in the record, taken as a whole, to support the choice of the finder of fact in resolving the factual dispute. It would not adequately inform a finder of fact what to do when there is competent, substantial evidence on opposite sides of an issue of disputed fact. Nor would it adequately tell a finder of fact how substantial the competent evidence must be. The answer to that question is: in disciplinary administrative proceedings, the evidence must be "clear and convincing"; in other administrative proceedings, a preponderance of the evidence is sufficient.
By suggesting that the standard of proof which binds the trier of fact should be the same as the appellate standard of proof, the Bowling dicta imply that only one resolution of a disputed issue of fact can be supported by competent, substantial evidence. In effect, this would subject all findings of
fact challenged in appellate review to a process by which the appellate court reweighs the evidence. Such a legal conclusion would render the role of the finder of fact all but meaningless, directly contrary to the legislative purpose of Chapter 120 Florida Statutes.
Bowling does state that, in license discipline proceedings, "the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling at 172. Thus, the proof must be sufficient to clearly convince the finder of fact that the alleged unlawful acts have been committed by Respondent and that the act allegedly unlawful has in fact, been proscribed by law or rule.
Section 459.129 Florida Statutes (1951) provides in pertinent part:
The Board may revoke, suspend, or deny the issuance or renewal of the certificate
or registration of a contractor and impose
an administrative fine not to exceed $5,000.00, place a contractor on probation, or reprimand or censure a contractor if the contractor...is found guilty of any of the following acts:
Violation of Chapter 455.
* * *
Willful or deliberate disregard in violation of the applicable building codes
or laws of the state or of any municipalities or counties thereof.
* * *
Signing a statement with respect to a project or contract falsely indicating chat the work is bonded; falsely indicated that payment has been made for all subcontracted work, labor, and materials which results in a financial loss to the owner, purchaser, or contractor;...
Section 455.227(1)(a) provides in pertinent part:
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:
the licensee has made misleading, deceptive untrue, or fraudulent representations in the practice of this profession;
Respondent executed the affidavit in support of final construction draw to obtain the remaining construction funds of $4,338.50. The affidavit falsely indicates "that all persons furnishing labor or materials engaged as subcontractors...have peen paid in full." The testimony establishes that Respondent knew these individuals had not been paid. That the complaining witness (Boucher) joined in Respondent's misrepresentation to the lending institution does not eradicate Respondent's falsification. As of the date Respondent executed the affidavit approximately $2,191.00 was owed to materialmen and subcontractors. Boucher suffered losses by having to pay
$1,562.40 to Patterson Well Drilling. Overhead Door Company suffered losses in the amount of $356.00 due to Respondent's failure to properly reimburse the company for services provided. Absent any corroboration that Boucher paid
$325.00, Quality Fiberglass continues to have an outstanding lien of $219.00. Count I of the Administrative Complaint has been established by clear and convincing evidence.
Respondent's representations to Boucher with regard to the payment and performance bond violated the provisions of Section 455.227(1)(a), Florida Statutes (1981). As part of the construction contract Respondent specifically agreed to obtain a payment and performance bond. After construction commenced Boucher became concerned over whether Respondent intended to complete the home. Boucher inquired whether Respondent had obtained the payment and performance bond. Respondent indicated a bond had not been obtained; Respondent assured Boucher that a bond would be obtained. Respondent failed to obtain a payment and performance bond. Count II of the Administrative Complaint has been established by clear and convincing evidence.
Respondent's Answer pleads two affirmative defenses: (1) that Respondent and Boucher reached an accord and satisfaction of their agreement and Boucher agreed to pay off the bills to Overhead Door Co. Future Plumbing Quality Fiberglass and Patterson Well-Drilling, and (2) estoppel in the sense that the changes in construction would be acceptable as [sic] Respondent would not have to obtain a performance bond [and?] he would insure the bills would be paid and Respondent signed the final affidavit in reliance on Boucher's statements. Affirmative defenses of "accord and satisfaction and "estoppel" which may be appropriate as against a complaining witness are not in any sense binding against the prosecuting agency (Department of Professional Regulation) or the board (Florida Construction Industry Licensing Board) in a licensing disciplinary situation. Also, affirmative defenses upon which no evidence is offered by their proponent (Respondent) cannot stand by themselves unless established by the Petitioner's case in chief. For the reasons set out in Paragraph 7 of the foregoing findings of fact the affirmative defenses are clearly not established by the Petitioner's case in chief.
Respondent violated Section 114 of the Standard Building Code, but as a matter of proof, Petitioner failed to prove that that section was adopted by Seminole County Ordinance Number 50-10 for the period of time applicable to the charges in this case. Therefore, Count III of the Administrative Complaint has not been established by clear and convincing evidence.
Petitioner urges imposition of a $1,000 fine plus a two year license suspension reducible to one year upon proof of restitution to Victor Boucher who joined in the falsification to the lending institution. Profiting Mr. Boucher in this way under these circumstances is not in the public interest. In consideration of the foregoing findings of facts and conclusions of law, it is recommended:
That the Florida Construction Industry Licensing Board enter a final order suspending Respondent's contracting license for a period of two (2) years and imposing an administrative fine in the amount of $1,000.00, provided, however, if Respondent submits to the Board competent and substantial evidence of payment to Overhead Doors Co. of $356.00 and payment to Quality Fiberglass of $219.00, the period of suspension shall be reduced to one (1) year.
DONE and ORDERED this 31st day of December, 1985, in Tallahassee, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1985.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3835
Rulings on Petitioner's Proposed Findings of Fact According To the Paragraph Number assigned by Petitioner.
W. Douglas Beason, Esquire Fred M. Roche, Secretary Department of Professional Department of Professional
130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
