STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2958

)

JAMES L. WASHINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, a duly designated Hearing Officer, in Tallahassee, Florida, on October 26, 1987. The appearances were as follows:

APPEARANCES

For Petitioner: William O'Neil, III, Esquire

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: James L. Washington, pro se

320 West Pershing Street Tallahassee, Florida 32301

BACKGROUND

This cause arose upon an Administrative Complaint filed by the Petitioner against the Respondent, James L. Washington, in which it is alleged that he violated Section 418.117(2), Florida Statutes, by exceeding the authorized scope of his licensure with regard to certain construction work performed in Leon County, Florida. It is alleged he consequently violated Section regard to certain construction work performed in Leon County Florida. It is alleged he consequently violated Section 489.129(j), Florida Statutes, by performing substantial construction work on a commercial office building in Leon County while licensed only as a residential contractor as that term is defined in Section 489.105(3)(c), Florida Statutes.

The cause came on for formal hearing as noticed, at which the Petitioner presented the testimony of Harold Martin, M.D., and introduced into evidence Petitioner's Exhibits 1, 5, 8, 9, 10 and 11. The Respondent testified on his own behalf.

The issue to be resolved in this proceeding concerns whether the Respondent engaged in the conduct alleged in the factual allegations of the Administrative

Complaint, and whether that construction activity amounted to his exceeding the authorized scope of practice as a "residential contractor" and, consequently, whether the violations of the statutory authority alleged in the Administrative Complaint and referenced herein, have been established; as well as the scope of any penalty warranted.

FINDINGS OF FACT

1. The Respondent, at all times material hereto, was a licensed registered "residential contractor." He was not registered or licensed as a general or building contractor, however, as Respondent himself acknowledged. See also, Petitioner's Exhibit 1 in evidence.

   
   

2. The Petitioner is an agency of the State of Florida charged pursuant to the provisions of Chapter 489, Florida Statutes, with establishing licensure standards for building contractors of all types in the State of Florida, and with enforcing the various limitations on practice as a contractor embodied in that chapter.

   
   

3. On or about January 28, 1986, the Respondent contracted with one Harold Martin, M.D., to build Dr. Martin a commercial office building in Leon County, Florida. The contract specified construction of all phases of the building project except the parking lot and the landscaping. The Respondent submitted a budget for the construction work to Dr. Martin depicting a total proposed cost for the project of $134,882.

   
   

4. The Respondent performed substantial work on the office building in January and February of 1986. In March of 1986, due to a dispute which arose between the Respondent and Dr. Martin concerning the cost and progress of the construction project, Dr. Martin terminated the Respondent's service and contract and retained another contractor to finish the job, which was done. The Respondent established that when the contract was terminated, the building was approximately 65 percent complete. It is undisputed that the Respondent did perform a substantial amount of work on the office building pursuant to the contract with Dr. Martin.

   
   

5. On March 27, 1986, the Respondent filed a claim of lien against the owner, Harold Martin, in which the Respondent stated that he had managed the construction of the office building in question and had performed $23,300 worth of work thereon. The Respondent also provided Dr. Martin with a Contractor's Affidavit, in which he certified to the owner that all lienors, except one, had been paid.

   
   

6. The Respondent had contracted to perform the work after it had been started by another contractor retained by Dr. Martin, whom Dr. Martin had also terminated because he was not pleased with the progress and the quality of work of that first contractor.

   
   

7. The Respondent established that one of the members of the Board of Directors of his corporation was a licensed general contractor, but admitted that that general contractor and board member had performed no work with regard to Dr. Martin's office building. The Respondent testified that another general contractor came to the job site from time to time to supposedly oversee the job. However, it was not established that any other general contractor, in the course of his practice, had any nexus with the Martin contract nor the performance of any construction on the building at times when the Respondent was performing construction thereon in January and February of 1986. This is demonstrated

   especially because of the fact that the Respondent never paid any other general contractor any money for any work or supervision performed with regard to this job, nor had Dr. Martin paid any other general contractor for such duties during the time that the Respondent was performing work on the building in question.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1985).

   
   

9. Proceedings such as this involving potential revocation or suspension of licensure, and consequently the right to practice a livelihood, are penal in nature. Because the Respondent's licensure, and potentially the right to practice his livelihood, are at issue, the evidence to support the charges must be clear and convincing. See Ferris v. Turlington, 12 F.L.W. 393, 394 (Fla. S.Ct. July 16, 1987). In the instant case, the Petitioner has met that burden.

   
   

10. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to "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 ... is found guilty of" any of the acts specified in Section 489.129(1)(a)-(m), Florida Statutes.

    
    

11. The Respondent has been charged with violation of Section 489.117(2), Florida Statutes, which proscribes a contractor, in the course of his practice, exceeding his authorized scope of licensure. It is then charged that the Respondent has consequently violated Section 489.129(j), by engaging in construction on a commercial office building while licensed only as a residential contractor, as that term is defined in Section 489.105(3)(c), Florida Statutes.

    
    

12. Section 489.105(3)(c), Florida Statutes, provides in pertinent part:

    
    

    Residential contractor means a contractor whose services are limited to construction, remodeling, repair or improvement of one family, two family, or three family residences ...

    
    

    Section 489.117(2), Florida Statutes, in turn provides:

    
    

    Registration allows the registrant to engage in contracting ... only for the type of

    work covered by the registration.

    
    

13. There is no question that the Respondent's registration only authorized his performance of contracting work as a residential contractor. It has also been established that the Respondent contracted to build, and did build in substantial part, an office building, which activities are clearly beyond the authorized type of work which a contractor registered as a residential contractor may legally perform. Consequently, the Respondent has violated Section 489.117(2), Florida Statutes. The evidence also establishes that the Respondent has never before engaged in any violations of any of the various provisions of Chapter 489, Florida Statutes, governing the authorized scope of contractor practice, and no safety hazards or other defects regarding the

construction work he performed on the subject building have been alleged or established. In view of the circumstances of this case, and the rather minor nature of the violations involved, a minimal penalty is warranted.

RECOMMENDATION

Having considered the foregoing findings of fact conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore

RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board, in accordance with disciplinary guideline Rule 21E-17.001(3), Florida Administrative Code, according the Respondent the penalty of a Letter of Guidance.

DONE and ENTERED this 23rd day of December, 1987, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 23rd day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2958

Petitioner's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

COPIES FURNISHED:

William O'Neil, III, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. James L. Washington

320 West Pershing Street Tallahassee, Florida 32301

Mr. Fred Seely Executive Director Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 87-002958

Orders for Case No: 87-002958