STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2959

)

FRANK D. ALLISON, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer, in Orlando, Florida, on February 19, 1987. The issue in this case is whether the Respondent, Frank D. Allison, violated section 489.129(1)(m), Fla. Stat., by gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting by failing to supervise the construction of a residence in 1985, in Casselberry, Florida, such that a window leaked in the rain, and by failing to correct this problem within a reasonable time. Appearing for the parties were:

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Frank D. Allison, Pro Se

1004 East South Street Orlando, Florida 32801

The Petitioner presented 7 exhibits which were admitted into evidence, and the testimony of David Paul Driggers, Frank D. Allison, and Mark Nasrallah. The Respondent presented one exhibit which was admitted into evidence, and testified on his own behalf. There is no transcript.

FINDINGS OF FACT

1. Respondent is a certified building contractor holding license number CB C032007. In May, 1985, he contracted to build a residence for Daniel Drigger for a price of $98,400. This is the first residence constructed by the Respondent under his license.

   
   

2. The Driggers moved into the house in February, 1986.

3. As a part of the contract to build the residence, the Respondent was responsible for the construction of a "greenhouse" window along the wall of the kitchen. The window is depicted in P. Ex. 3 on the left side of the house.

   
   

4. The top portion of the window that slants on a 45 degree angle from the wall of the house began to leak in heavy rain storms shortly after the Driggers moved in. Water would pour in from the top seams of the window, damaging the drywall and wallpaper, and resulting in large pools of water on the floor.

   
   

5. Mark Nasrallah was qualified as an expert in proper methods of construction and responsibilities of a contractor in Florida. Based upon the opinion of Mr. Nasrallah, it is concluded that the window had been improperly constructed by Mr. Allison. Mr. Allison's method, reliance upon caulking to seal the top glass, was defective because the glass would change size in heat and cold, thus loosening the seal, causing leaks. The proper method to prevent leaks was to rabbet the frame, laying the glass on a bead of caulk within the rabbet, and to construct a system of double flashing as indicated in the sketch which is Petitioner's Ex. 7.

   
   

6. Mr. Allison agreed in his testimony that the method he chose to construct the window was not correct. He relied upon the carpenters he had hired to properly construct the window. The carpenters he hired had told him that they had constructed windows of this type many times before. Mr. Allison relied upon their representations, but did not know himself how the window should properly be constructed.

   
   

7. At the hearing, Mr. Allison accepted full responsibility for the incorrect window, and was willing to spend the money needed to repair the window to the standards set forth by Mr. Nasrallah.

   
   

8. The cost of correction of the window will be approximately $300.

   
   

9. When Mr. Driggers first discovered that the window leaked, he called Mr. Allison and asked him to fix it.

   
   

10. Mr. Allison told Mr. Driggers that he had lost a lot of money under the contract, and that he (Mr. Allison) believed that Mr. Driggers still owed him money. Mr. Allison told Mr. Driggers that he would fix the window if Mr. Driggers paid him the money that was owed, but that otherwise Mr. Driggers would have to have the window repaired using the money Mr. Driggers owed Mr. Allison. Since Mr. Driggers refused to pay the money claimed by Mr. Allison, Mr. Allison refused to correct the window.

    
    

11. Mr. Driggers tried several methods to correct the leaky window, including caulk and after-the-fact flashing (without reconstruction), to no avail. The window still leaked.

    
    

12. At the end of the job, there were still a number of corrections to be made. In order to release liens and to allow the bank to release funds, the parties agreed to allow the retention of $1500 by the Driggers, to be paid to Mr. Allison upon completion of the corrections on the "punch" list.

    
    

13. P. Exs. 5A and 5B are the letters exchanged between the parties that established the agreement regarding the punch list and the retained $1500.

14. The Driggers agreed that if all the items on the punch list were not completed by February 16, 1986, then the Driggers would have the option to hire someone to take care of the uncompleted items. Implicitly, payment was to be made from the retained $1500. R. Ex. 5B.

    
    

15. Mr. Driggers testified that the following items on the punch list were not completed by Mr. Allison: rehang door to guest bathroom to open to outside; remove stain from living room ceiling; replace cabinet drawers upstairs; remove smudge on wallpaper in upstairs bathroom; center cabinet doors, master bathroom; and deliver all guarantees and warranties. This testimony is not credible, and is rejected. On May 6, Mrs. Driggers wrote to Mr. Allison. P. Ex. 6. The letter is clearly intended to itemize all remaining deficiencies under the contract. It states that $1,273.30 of the retained $1,500 is enclosed as "final payment," and itemizes $226.70 in matters claimed as offsets by the Driggers. None of the items listed are matters that Mr. Driggers at the formal hearing testified were uncompleted items on the punch list. The letter concluded that "this concludes our contract."

    
    

16. Based on the letter of May 6, 1987, Mr. Allison reasonably and justifiable thought that the retained amount of $226.70 was used by the Driggers to satisfy all remaining claims by the Driggers under the contract.

    
    

17. At the conclusion of the contract, Mr. Allison had a claim against the Driggers for the following, which Mr. Allison asserts was never paid to him:

    $75 for the utility deposit; $362 for landscaping; and $101.07 for appliances in excess of contract allowance. None of these amounts were denied by Mr.

    Driggers. The effect of this claim, however, cannot be determined on this record due to the findings of fact which follow.

    
    

18. Mr. Allison originally presented Mr. and Mrs. Driggers with an estimate of $112,000 to construct the house. The bank would loan only $98,400. Thus, the parties agreed that the contract would be for the lower amount, but that Mr. Driggers would bring the cost down by supplying labor and materials for certain jobs. This agreement was not reduced to writing, and there is insufficient evidence in the record to conclude that either Mr. Allison or Mr. and Mrs. Driggers breached any of these oral agreements, resulting in money owed to either party. This is Particularly true in light of the letter of May 6, 1987, P. Ex. 6.

    
    

19. As a consequence, it is impossible on this record to conclude that after consideration of all claims and counter claims, that the Driggers owed Mr. Allison anything further, or that Mr. Allison breached any duty to the Driggers other than in the construction of the leaky window.

    
    

20. On June 25, 1986, the Driggers sent a letter to Mr. Allison. The letter lists a number of grievances. It ends by saying that formal complaints were being filed against Mr. Allison. On the last page, the Driggers state that "we, personally, have taken the appropriate steps to have the leaks fixed."

    
    

21. After receipt of the June 25, 1986, letter, Mr. Allison did not offer to fix the leaky window because he believed it had already been fixed based upon the Driggers' letter. He was not contacted again by the Driggers.

    
    

22. The window had not been fixed as of the date of the formal hearing.

    
    

23. Mr. Allison offered to fix the window, as discussed above.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the subject matter and of the parties to this proceeding.

    
    

25. Where loss of a professional license is among the possible results of an administrative proceeding, findings of fact must be based upon clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

26. The Petitioner argues that the Respondent committed "gross negligence" within the meaning of section 489.129(1)(m), Fla. Stat., with respect to construction of the faulty window. Gross negligence has been defined by the Florida Supreme Court as a "... course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property." Gross negligence differs from simple negligence in that simple negligence is only such conduct which a reasonable and prudent man would know might possibly result in injury to persons or property..." Bridges v. Seer, 79 So.2d 679, 682 (Fla. 1955). Gross negligence has also been defined by the Court as "the omission or commission of an act with a conscious indifference to consequences so far as other persons are concerned." (E.S.) Faircloth v. Hill, 85 So.2d 870, 872 (Fla. 1956).

    
    

27. The evidence does not establish gross negligence in the construction of the window by clear and convincing evidence. There was no proof of knowing and conscious disregard of proper construction methods. It was simple negligence, but not gross negligence.

    
    

28. Section 489.129(1)(m), Fla. Stat., also provides penalties for "incompetency ... in the practice of contracting." "Incompetent" means "without adequate ability, knowledge, fitness, etc.; failing to meet requirements; incapable; unskillful." Webster's New World Dictionary.

    
    

29. The record in this case does not prove by clear and convincing evidence that Mr. Allison is guilty of "incompetence in the practice of contracting." He made one mistake in the construction of a $98,400 house. If one mistake in the course of construction of a residence constitutes "incompetence in the practice of contracting," then practically every contractor in Florida might be expected to be subject to a finding of incompetence. "Incompetence in the practice of contracting" must be intended to mean proof of lack of ability and knowledge in a broad and general sense. While proof of individual mistakes may well show such general incompetence, proof of one mistake does not.

    
    

30. It further must be concluded that Mr. Allison is not guilty of misconduct in the practice of contracting for the manner in which he refused initially to correct the leaky window. There is no competent proof that he failed to complete all the punch list items. Even if there were, the letters of February 6, 1986, P. Ex. 5A, and May 6, 1986, P. Ex. 6, make it clear that by contract the owner elected to use retained money to pay for outstanding claims. Finally, the Respondent had reasonable cause to believe the window had been fixed due to the letter of June 25, 1986, stating that the leaks had been fixed by the Driggers.

RECOMMENDATION

For these reasons, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order dismissing the administrative complaint against Frank D. Allison.

DONE and RECOMMENDED this 18th day of March, 1988, in Tallahassee, Florida.

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 18th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2959

The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties.

Findings of fact proposed by the Petitioner:

1. The proposed finding that the "punch list items were not complete" has been ejected for the reasons set forth in finding of fact 15.

2. The second sentence is true and adopted by reference, but is subordinate.

3. This proposed finding is true and adopted by reference, but is subordinate.

4. This proposed finding is true and adopted by reference, but is subordinate.

Findings of fact proposed by the Respondent:

The last sentence of the first paragraph is rejected for the reasons stated in findings of fact 18 and 19.

The second paragraph is rejected. Although the proof was inadequate during the formal hearing that Mr. Allison failed to complete punch list items, this does not, in itself, prove that Mr. Driggers "deceived the contractor" about the punch list items. Mrs. Driggers explicitly listed the items for which money was withheld in the May 6, 1986, letter. Mr. Allison thus knew exactly why the money was withheld. Whether or not Mr. and Mrs. Driggers were correct in the withholding of the money has not been determined on this record.

The last sentence of paragraph 3 is true and adopted by reference. It is not sufficient, however, the change the conclusion that the construction of the window was improper. Mr. Allison agreed during the hearing that the Nasrallah method was the proper method.

COPIES FURNISHED:

David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Frank D. Allison

1004 East South Street Orlando, Florida 32801

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

Jacksonville, Florida 32201

Willian O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002959

Orders for Case No: 87-002959