STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 87-2815

)

DAVID A. BRABHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer, in Orlando, Florida, on April 12, 1988. The issue in this case is whether the Respondent committed the contracting licensure violations alleged in the administrative complaint. Appearing for the parties were:

For the Petitioner: David Bryant, Esquire

1107 East Jackson, Suite 104

Tampa, Florida 33602 For the Respondent: On his own behalf.

The Petitioner presented 9 exhibits which were admitted into evidence, and the testimony of David A. Brabham, Michael Mishko, George J. Wiggins, and Jerome

1. Maynor. The Respondent presented 2 exhibits which were admitted into evidence, and his own testimony. There is a transcript. The Respondent submitted proposed findings of fact and conclusions of law. There is no appendix since none of the proposed findings of fact submitted by the Respondent have been rejected.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, David A. Brabham, holds license number CR CO 34619 as a residential contractor in the State of Florida. He has been certified since 1985.

      
      

   2. On February 3, 1986, Godfrey Dabelle (the home owner) entered into a contract with DNK Construction of Florida to renovate Mr. Dabelle's carport into a garage. The agent for DNK Construction was James Redig.

      
      

   3. Neither James Redig nor DNK Construction was licensed as a contractor by the state and this was known by the Respondent.

      
      

   4. Mr. Redig came to the Respondent and asked if he would pull the permits and do the work. The Respondent agreed to do this.

   5. The Respondent then met with Mr. Dabelle. The Respondent was introduced to Mr. Dabelle by Mr. Redig as the licensed contractor who would do the work. The Respondent thought that Mr. Redig was acting as agent for Mr. Dabelle, and intended that his agreement be with Mr. Redig as agent.

      
      

   6. The Respondent recommended to Mr. Dabelle that he have a new roof built for the garage, but Mr. Dabelle rejected this, insisting that the work be done as cheaply as possible. The Respondent then proposed that he (the Respondent) would draft a plan and submit it to the City of Winter Park (the permitting authority) for approval. If the drawing was approved by the city, it was agreed that the Respondent would construct the roof according to plan.

      
      

   7. The plan was submitted and approved by the city, and was built according to plan. As built, the Respondent used 2 x 6 stock for the ridge beam extension. The plan did not show a dimension for the extended ridge beam of the roof.

      
      

   8. The Respondent had the framing inspected by the city inspector, and the framing as constructed (including the dimensions of the ridge beam extension) was approved by the city inspector.

      
      

   9. After nearly completing his work, the Respondent discovered one day on the job that the home owner, Mr. Dabelle, was drilling holes in studs and wiring electrical outlets. Mr. Dabelle did not have a permit to do the electrical work.

      
      

   10. The Respondent told Mr. Dabelle that he (Brabham) was completed with his work and was ready for final inspection, but that Mr. Dabelle was doing work that needed a permit. Mr. Dabelle told Mr. Brabham that he (Dabelle) would take care of it, and to not worry.

       
       

   11. The Respondent thus did not call for a final inspection due to Mr. Dabelle's actions and statement. The Respondent decided to wait to see what happened. He told Mr. Dabelle that he would call for final inspection when the electrical permit problem was solved.

       
       

   12. A few months later, the Respondent was notified by Mr. Dabelle's lawyer that the roof was sagging. The Respondent met with Mr. Dabelle, the lawyer, and the Winter Park building inspector, at the site on December 9, 1986. Several methods were discussed for correction of the sag to the roof. Mr. Dabelle rejected the idea of placing a support column in the garage. Apparently then it was agreed that another ridge beam would be placed in the roof. This method was approved by the city building inspector.

       
       

   13. The Respondent submitted a proposal to Mr. Dabelle to install the new ridge beam. Mr. Dabelle apparently never responded to the offer by the Respondent, but instead had another contractor do the work.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter.

       
       

   15. The violations alleged in the administrative complaint include willful violation of local law by not calling for a final inspection, operating under a name not appearing on the license, failure to qualify a firm, gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting, and

       aiding and abetting an unlicensed person to evade a provision of chapter 489, Fla. Stat. The violations alleged in the administrative complaint have not been proven by clear and convincing evidence.

       
       

       1. The Respondent did not violate section 489.129(1)(d), Fla. Stat., (willful violation of local law), by failing to call for the final inspection. The Respondent had the framing inspection accomplished, and was precluded from calling the final inspection by the intervening actions of the home owner. The Respondent acted reasonably, and certainly not willfully, under the circumstances.

          
          

       2. The Respondent did not violate section 489.129(1)(g), Fla. Stat., (operating under a name not appearing on his license), since the Respondent was identified to the home owner as the licensed contractor responsible for the work.

          
          

       3. The Respondent did not violate section 489.129(1)(j), Fla. Stat., (failure to qualify a firm he was operating through), because the Respondent engaged in contracting in his own name, and that fact was disclosed to Mr. Dabelle and Mr. Redig. The Respondent had no interest in the DNK Construction Company, and had no partnership agreement with Mr. Redig or that company. The Respondent was simply hired by Mr. Redig, acting on behalf of Mr. Dabelle, to do the work. As such, the Respondent was simply contracting in his own name.

          
          

       4. The Respondent did not violate section 489.129(1)(m), Fla. Stat. (gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting), because the error in the design and construction of the roof extension was a common and ordinary type, to be expected from time to time in the business of contracting and construction. The city inspector reviewed the plans and the framing as constructed, and he thought it would work. The Respondent stood willing to correct the problem as soon as it became clear that the roof design was not working properly. Where the owner specifies that the work be done in the least expensive manner, and where other competent construction experts (the city inspector) thought the original design would work, and where the contractor stands ready to correct design problems that surface after construction, gross negligence or misconduct has not occurred.

          
          

       5. The Respondent did not violate section 489.129(1)(e), Fla. Stat., (aiding and abetting an unlicensed person to evade a provision of chapter 489) because the Respondent was identified to the home owner as the licensed contractor responsible for the work. The home owner knew that DNK Construction and Mr. Redig were not licensed and could not be responsible for the work.

          Under the specific circumstances of this case, Mr. Redig acted as agent for the home owner to hire the Respondent to do the work, and was not acting as a "contractor."

          
          

   16. The administrative complaint thus should be dismissed.

Recommendation

For these reasons, it is recommended that the administrative complaint dated May 1, 1987, against the Respondent, David A. Brabham, be dismissed.

DONE and ORDERED this 29th day of June, 1988.

WILLIAM C. SHERRILL, JR.

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 29th day of June, 1988.

COPIES FURNISHED:

David Bryant, Esquire

1107 East Jackson, Suite 104

Tampa, Florida 33602

David A. Brabham 10331 Lehman Road

Orlando, Florida 32825

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002815

Orders for Case No: 87-002815