STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2220

)

EUGENE WILLIAMS, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Jacksonville, Florida, on September 25, 1987, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

For Petitioner: E. Raymond Shope, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mr. Eugene Williams, Jr., pro se

10337 Jolynn Court West Jacksonville, Florida 32211

ISSUES AND INTRODUCTION

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, set forth in an Administrative Complaint signed March 3, 1987. Specifically, the Respondent is charged with having violated Section 489.129(1)(k), Florida Statutes, "by abandonment of a construction job Respondent was engaged on" and with having violated Section 489.129(1)(j), Florida Statutes, "by failure to subcontract work in violation of 489.113(3)."

At the hearing the parties agreed to an amendment to paragraph 8 of the Administrative Complaint to reflect that there were two contracts, one for

$15,500.00 and one for $1,491.00, for a total contractual price of $16,991.00. The Respondent also stipulated to most of the allegations of the Administrative Complaint. Thereafter, the Petitioner presented the testimony of two witnesses and offered six exhibits, all of which were received in evidence. The Respondent then testified on his own behalf and offered two exhibits, both of which were received in evidence.

At the conclusion of the hearing the parties were given 30 days from the date of the filing of the transcript within which to file their proposed Recommended Orders. The transcript was filed on October 2, 1987, and the

Petitioner thereafter filed a timely proposed Recommended Order containing proposed findings of fact and conclusions of law. As of the date of this Recommended Order, the Respondent has not filed a proposed Recommended Order nor any other document containing proposed findings of fact. Specific rulings on all proposed findings of fact submitted by the Petitioner are contained in the Appendix which is attached to and incorporated into this Recommended Order.

FINDINGS OF FACT

Based on the stipulation of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact:

Stipulated Facts

1. Petitioner is the state agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes.

   
   

2. At all times relevant hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified general contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number CG C031803. Respondent's address of record is in Jacksonville, Florida.

   
   

3. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Irene McIntosh to perform certain contracting work. The contracting work generally consisted of remodeling a church. The contracts for the remodeling work were entered into on or about March 6, 1986. One contract was for $15,500.00 and one was for $1,491.00. The jobs were located in Jacksonville, Florida.

   
   

4. Respondent's contracting business thereafter began the jobs described above. In the course of said jobs, Respondent did, himself or through his unlicensed employees, perform plumbing work. At no time relevant hereto was Respondent licensed to engage in plumbing work.

   
   

   The Rest of the Findings

   
   

5. Respondent began work on the two contracts sometime during the latter part of 1985. Respondent continued to perform work on the two contracts until sometime during March of 1986. Respondent finished most of the work under the two contracts, but he did not finish all of the work he had agreed to perform. Respondent has not performed any work on either of the contracts since March of 1986.

   
   

6. Apparently some form of dispute, the exact nature of which is not revealed in the record of this case, arose between the parties to the contract. The last time the Respondent attempted to do any work under the contracts, he was unable to do so because the locks on the premises had been changed. At about that same time, a representative of the church told the Respondent that the Respondent would not be paid any more money for work on the contracts.

   
   

7. After being locked out of the premises, the Respondent did not attempt to contact Irene McIntosh to arrange to finish the work or to notify her that he was terminating the work. There is no evidence that Irene McIntosh attempted to contact the Respondent after he was locked out of the premises. The Respondent

   has not been paid the contracted amount of $1,491.00 under the second contract. If the Respondent were to be paid the $1,491.00 that is owed to him, he would be willing to finish all of the work under the two contracts.

   
   

8. A general contractor cannot lawfully perform plumbing work in the City of Jacksonville without a plumbing license.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

   
   

10. Section 489.129(1), Florida Statutes, reads as follows, in pertinent part:

    
    

    1. 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, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

       * * *

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

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

       
       

11. Section 489.113(3), Florida Statutes, reads as follows, in pertinent part:

    
    

    (3) A contractor shall subcontract the electrical, mechanical, plumbing, roofing, sheet metal, and air conditioning work for which a local examination for a certificate of competency or a license is required, unless such contractor holds a state certificate of competency or license of the respective trade category, as required by the appropriate local authority.

    
    

12. The Respondent is charged with a violation of Section 489.129(1)(j), Florida Statutes, by reason of his having violated Section 489.113(3), Florida Statutes, by performing plumbing work without having a certificate or license to

    perform plumbing work. The Respondent has admitted that he performed plumbing work under the subject contracts without having a certificate or license to perform plumbing work. Accordingly, the Respondent should be found guilty of a violation of Section 489.129(1)(j), Florida Statutes, as charged.

    
    

13. The Respondent is also charged with a violation of Section 489.129(1)(k), Florida Statutes, by abandoning a construction project. Upon consideration of all of the facts, the termination of the work on the subject contracts appears to be the result of some form of impasse or stalemate between the parties to the contracts, rather than a unilateral abandonment of the work by the Respondent. Where he was locked out of the premises and told he would not be paid the unpaid balance of the contract price, he could hardly be expected to continue with the work. On this state of the record, there is simply no clear and convincing evidence of an abandonment. Therefore, the charge that Respondent violated Section 489.129(1)(k), Florida Statutes, should be dismissed.

RECOMMENDATION

Based upon all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a final order in this case to the following effect:

1. Dismissing the charge that the Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project;

   
   

2. Finding the Respondent guilty of the charge that he violated Section 489.129(1)(j), Florida Statutes; and

   
   

3. Imposing a penalty of a fine in the amount of two hundred fifty dollars ($250.00) and a suspension of the Respondent's license for a period of ninety (90) days.

DONE and RECOMMENDED this 4th day of December, 1987, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 4th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2220

The following are my specific rulings on each of the findings of fact proposed by the parties:

Findings proposed by the Petitioner:

Paragraph 1: Accepted.

Paragraph 2: Accepted with exception of contract amount. There were two contracts for a total price of $16,991.00.

Paragraph 3: Accepted in essence, with exception of exact month. Exact month is not established by persuasive competent substantial evidence.

Paragraph 4: Accepted.

Paragraph 5: The proposed list of work remaining to be finished is rejected because it is not all supported by persuasive competent substantial evidence and also because it constitutes unnecessary subordinate details. It is sufficient to find that the Respondent did not finish all of the work under the contracts.

Paragraph 6: The essence of this proposal is accepted with a different emphasis and with additional findings in the interest of clarity.

Paragraph 7: Accepted in substance. Paragraph 8: Accepted.

Paragraph 9: Accepted.

Findings proposed by the Respondent: (none)

COPIES FURNISHED:

E. Raymond Shope, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Eugene Williams, Jr. 10337 Jolynn Court West Jacksonville, Florida 32211

Honorable Tom Gallagher Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 87-002220

Orders for Case No: 87-002220