STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4245

)

SUSAN SHILLING HOWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing mailed to the parties on January 14, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Panama City, Florida on February 27, 1985. The issue for consideration in this hearing was whether Respondent's license as a registered building contractor should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Respondent did not appear and

was not represented. BACKGROUND INFORMATION

Petitioner, Department of Professional Regulation, for the Petitioner, Construction Industry Licensing Board, (CILB), filed an Administrative Complaint against the Respondent, Susan Shilling Howell, on August 7, 1984, in which, in two Counts, it alleged that Respondent; (a) failed in a material respect to comply with the statute governing the licensing of contractors, (b) made misleading, fraudulent, deceptive or untrue representations in the practice of contracting, and (c) failed to notify the Petitioner, CILB, of a change of address in a timely fashion. These allegations, if true, constitute violations of Sections 489.115(3)(a), 489.129(c) and (j), and 455.225(1)(a) and (b), Florida Statutes, and Chapter 21E-15.07, Florida Administrative Code.

Respondent submitted an Election of Rights form on or about August 28, 1984, on which she disputed the allegations of fact and requested a formal hearing. The parties were notified of the hearing initially on December 18, 1984, when the Hearing Officer mailed a copy of the Notice of Hearing to the Respondent, in addition to counsel for Petitioner, at the address she listed on

her Election of Rights form. This notice was not returned by the postal service as undelivered. Thereafter, as was stated above, the parties were sent an Amended Notice of Hearing on January 14, 1985, again to the Respondent's same address, and again, the notice was not returned undelivered. The only change on the notice was to move the time of the hearing back several hours but there was no change to the date or location of the hearing.

At the hearing, the Hearing Officer delayed calling the hearing to order for 15 minutes after the scheduled time for commencement. Before taking testimony, the Hearing Officer solicited from the counsel for Petitioner the information that to the best of his knowledge, Respondent has moved to the State of Utah leaving a representative at the address to which the notices were sent. Since substantial effort had been made to locate the Respondent and advise her of the hearing and she failed to appear, the hearing was conducted without her being present.

At the hearing, Petitioner presented the testimony of William J. Carrier, a resident of Panama City Beach who purchased a home constructed by Respondent's company; and Elizabeth O'Connor, a permit clerk with the Bay County Building Department; and introduced Petitioner's Exhibits 1 through 5. At the request of Petitioner, the Hearing Officer also took Official Notice of Section 20.30 and Chapters 455 and 489, Florida Statutes and Rule 21E-15.07, Florida Administrative Code.

FINDINGS OF FACT

1. Respondent, Susan Shilling Howell, was first licensed as a registered building contractor in Florida in October, 1981. License Number RB 0040698 was issued to her, qualifying M. B. Howell Homes, located at 2601 Dale Avenue, Panama City Beach, Florida, 32404. This license expired on June 30, 1983 and no address changes were made to the records pertinent to it during period of activity, nor has it been renewed since it expired. On March 23, 1983, William

   1. Carrier and J. Paula Carrier, his wife, entered into a contract with Respondent and her husband, M. B. Howell, to purchase a house, constructed by their company, located in Bay County, Florida. Closing was scheduled for some time in April, 1983, but because the house was not completed sufficiently to satisfy the Carriers, the closing was delayed and they did not move in until sometime in June, 1983. Even at that point, there remained a substantial list of discrepancies which required correction by the builder. These included such things as:

      
      

      1. a badly poured driveway - this was replaced by Respondent once, but when found to be still unsatisfactory, Respondent refused to correct.

      2. poor interior painting,

      3. poor exterior painting, and

      4. a damaged tub in the bathroom.

   
   

2. Mr. Carrier contacted Respondent regarding these discrepancies right after he moved in. Both Respondent and her husband, the actual builder, came to the house and looked at the items and while a few of the minor discrepancies were corrected, the major ones were not. In Carrier's estimation, 80 percent of the problems were not fixed. Though he asked Respondent to come back and fix

   the items several times, with the last request by letter dated October 18, 1983, no one did and on November 14, 1983, he asked another contractor to come in and make the necessary repairs. During all this time, Respondent and M. B. Howell Homes were using the address, 126 Rose Coral Drive, (their home), as their place of business.

   
   

3. On January 12, 1984, Respondent went to the Bay County Building Office and purchased a building permit in the name of M. B. Howell Homes, listing herself as contractor and her expired license on the application form along with the address, 126 Rose Coral Drive, as the business address. Permit Number 9472 was issued. This entire transaction was observed by Elizabeth O'Connor, a permit clerk, who recognized Respondent as the applicant.

   
   

4. Thereafter, on March 15, 1984, Respondent again applied for a building permit for M. B. Howell Homes, at the same office, this time dealing directly with Ms. O'Connor. Again she listed her expired license number and the above address on the application form and was issued permit 9733. On both occasions, her license had expired and had not been renewed and she made no mention of the fact that the license was delinquent.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. In Count One of the Administrative Complaint, Respondent is alleged to have violated Section 489.115 (3)(a) and 489.129(j), Florida Statutes, by failing in a material respect to comply with the provisions of the statute regarding certification and registration.

   
   

6. Section 489.115(3)(a), requires that:

   
   

   Each licensee who desires to continue as a licensee shall renew his certificate or registration every 2 years. . . .

   
   

   This is the sine qua non of the construction licensing provisions of the statutes. Without a license, contractors may not hold themselves out to the public as contractors for hire. Section 489.129(j), permits the Petitioner, CILB, to discipline a contractor in various ways for:

   
   

   Failure in any material respect to comply with the provisions of this act.

   
   

   Here, Respondent's license had expired on June 30, 1983 and had not been renewed. Nonetheless, on at least two subsequent occasions, 6 and 9 months after the license had expired, Respondent applied for building permits in the course of doing business as a contractor. It is clear that she knew what she was doing and that her actions were in certain violation of the statute. She failed to renew her license while continuing to act as a contractor and the requirement for licensure under these circumstances is material.

   
   

7. In addition, in Count One, Respondent is also alleged to have made misleading, fraudulent, deceptive or untrue representations in violation of Section 455.227(1)(a) which, if shown, is also a violation of Section 489.129(c).

8. The former section states:

   
   

   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 his profession; . . .

   
   

   Here, Respondent applied for two building permits after her license expired, well knowing that they had, in fact, expired. On both occasions, she placed the expired license number on the application. That constitutes misrepresentation at the very least and is a violation of both the spirit and intent of the statute. It is also a violation of Section 489.129(c) which permits the discipline of a licensee for and violation of Chapter 455.

   
   

9. In Count Two, Petitioner has alleged Respondent is in violation of Section 455.227(1)(b) which permits discipline of a licensee when the Board finds that the licensee has intentionally violated any rule adopted by the Board or the Department. Rule 21E-15.07 requires a certificate holder or registrant to notify the Department of Professional Regulation within thirty days of a change in his name or address from that which appears on his certificate or registration. Here, the Respondent was registered with Petitioner as a registered building contractor with address of 2601 Dade Avenue, in Panama City Beach. This was taken on October 28, 1981. When dealing with Mr. Carrier in mid to late 1983, she was utilizing a different address and in January and March, 1984, was still utilizing this second address without ever having sent in a change of address to the Department. This constitutes a violation of the Department's rule and, as well, the statute in question.

   
   

10. Having established that Respondent did violate the statutes as alleged in the Administrative Complaint, the question remains as to what disciplinary action, if any, is appropriate. The information given by Mr. Carrier as to his difficulties in Respondent to correct deficiencies in the house purchased from her is not pertinent to the allegations contained in the Administrative Complaint. It is, however, pertinent to a consideration of appropriate disciplinary action. Respondent's actions which constitute the infractions here are significant in that they demonstrate a cavalier attitude toward the rules and regulations governing the construction industry, but taken alone do not, perhaps, justify more than a fine or reprimand. However, when taken in conjunction with a demonstrated lack of concern for the quality of her construction and the satisfaction of her customers, it becomes most significant. Indeed, it demonstrates job performance traits and characteristics which are inconsistent with the high standards of professionalism justifiably expected and demanded of practitioners in the construction industry.

RECOMMENDATION

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

RECOMMENDED that, the registration of Respondent, SUSAN SHILLING HOWELL, as a registered building contractor in Florida be revoked.

RECOMMENDED in Tallahassee, Florida, this 8th day of March, 1985.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of March, 1985.

COPIES FURNISHED:

W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301 Susan Shilling Howell

126 Rose Coral Drive

Panama City Beach, Florida 32407

Docket for Case No: 84-004245

Orders for Case No: 84-004245