Judges: DON W. DAVIS
Agency: Department of Business and Professional Regulation
Latest Update: Apr. 28, 1988
Summary: General contractor found guilty of gross negligence. Penalty imposed of three year license suspension and an administrative fine of $2500.00.
87-5309STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5309
)
DENFIELD LIONEL KIRBY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on February 23, 1988 in Miami, Florida. The following appearances were entered:
APPEARANCES
FOR PETITIONER: Lee Sims, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
FOR RESPONDENT: R. Daniel Koppen, Esquire
700 Northeast 90th Street Miami, Florida 33138-3206
BACKGROUND
The Respondent is a general contractor licensed by the Petitioner. In an administrative complaint, the Petitioner charged the Respondent with financial misconduct or mismanagement, abandonment or failure to perform within a reasonable time, improper supervision of finances and gross negligence, incompetence or misconduct in connection with a construction job. Respondent requested a formal administrative hearing.
At hearing, Petitioner presented the testimony of two witnesses and ten evidentiary exhibits. Respondent presented testimony of four witnesses and seven evidentiary exhibits. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.
Based upon all of the evidence, the following finding of fact are determined:
FINDINGS OF FACT
Petitioner is the Department of Professional Regulation.
Respondent is Denfield Lionel Kirby, at all times pertinent to these proceedings holder of certified general contractor license CG-C024695, issued by Petitioner. His address of record is Miami, Florida.
In 1985, Fitzgerald McCoy and his wife had plans prepared by an architect for construction of a second story addition to their home in Miami, Florida. On October 31, 1985, a building permit for construction was obtained in the name of McCoy's wife, who is the owner of the house. Commencement of construction was stymied because the McCoy's contractor of choice was unlicensed. They eventually met and began discussions with the Respondent.
On April 16, 1986, Respondent prepared and signed an agreement with the wife, Gwendolyn G. McCoy. The agreement provided that Respondent would build the addition to the single family dwelling for a total sum of $57,048. Further, the agreement provided construction would be in accordance with the owner's previously drawn architectural plans as revised by an architect named Edna L. Mingo, an acquaintance of Respondent.
Payment terms of the agreement provided Respondent would be paid one third of the total amount at the beginning of construction and one third when the roof to the addition was "dried in" and installation of windows completed. The final one third of the total contract amount would be paid to the Respondent upon the completion of the project. This payment schedule was abandoned by mutual parol agreement of the parties when, upon execution of the agreement, the McCoys were unable to provide the initial one third payment required by the contract to start construction. At that time, the parties orally agreed that Respondent would commence work on the project upon payment of $5,000 to him by Mr. and Ms. McCoy. They made this payment on April 16, 1986, the same date the written agreement was executed. Construction activities commenced shortly thereafter pursuant to the building permit previously issued in the name of Ms. McCoy. Respondent eventually had this permit transferred to his name in May, 1986.
The McCoys continued to live in the residence while construction was in progress. During this time, Respondent generally appeared at the work site merely to ascertain if workmen were present. After making this check, he would leave.
As the building process continued, extensive damage occurred to portions of the existing structure from rainwater which blew into the residence. On one occasion, the ceiling to the McCoy's bed room caved in on them. The water damage was the direct result of the Respondent's failure to provide adequate protection to the existing structure from rainstorms during construction of the second floor roof over a portion of the residence.
At one point in the construction activity, workmen discovered the presence of termites in the rafters to the original roof of the McCoy dwelling. One of the rafters was replaced and the others were braced with new wood.
After receipt of payments totalling approximately $35,233.19, the Respondent took a respite from the project. His departure, due to the inability of the McCoys to provide further construction funds at the time, occurred around August 15, 1986. Eventually, the McCoys acquired more funds and, on October 20, 1986, gave the Respondent a check for $20,000.
After receipt of the $20,000 payment, the Respondent's workmen were involved in minimal activities on the site in October and December of 1986.
Because of proximity to the Christmas season, both parties evidenced very clear recollections of activities on the job around December 15, 1986. At that time, the Respondent requested, and received, another check for $3,000 from the McCoys. He received another check for $1,500 on January 20, 1987. Work by Respondent on the McCoy project after receipt of this payment was sporadic and the relationship between the parties steadily deteriorated. By Respondent's own admission, it is established that his last expense payment or other involvement in the project occurred in May, 1987.
During the process of construction, the McCoys wrote successive checks to Respondent in varying amounts which he accepted. Those checks and dates of issuance are as follows:
May 2, 1986 | $ 4,000 |
May 21, 1986 | $11,000 |
June 11, 1986 | $ 5,000 |
June 20, 1986 | $ 5,000 |
August 26, 1986 | $ 5,233.19 |
October 20, 1986 | $20,000 |
December 15, 1986 | $ 3,000 |
January 20, 1987 | $ 1,500 |
Per stipulation of the parties at hearing, the foregoing amounts plus the original payment of $5,000 resulted in a grand total of payments to Respondent in the amount of $59,733.17.
Respondent's request for the payments, and the McCoy's acquiescence in making them, constituted a continuing parol amendment of the payment terms and amount of the original contract.
At time of hearing, a milieu of tasks required by the original agreement to be performed by the Respondent, inclusive of requirements set forth in the plans referenced in that document, either remained unaccomplished, or had been accomplished by the McCoys at additional expense with third parties. Among those tasks were:
Installation of mirrors in bath rooms.
Installation of wood base boards.
Installation of closet rods and shelving.
Installation of guard rail to the stairway.
Painting of the house's interior and exterior.
Completion of plastering of the bathrooms.
Although the project was approximately eighty percent complete upon the cessation of all work, testimony of the Petitioner's expert, James Rodgers, establishes that much of the construction completed by Respondent's workmen was not in accordance with the requirements of the plans referenced in the agreement. Among such items are:
Substitution of glass panes for glass blocks.
Improper construction of the upper level overhang.
Stairway risers are not uniform in height.
All walls of the second floor addition are uneven and out of plumb. The bedroom
floor in the northwest corner of the second floor slants excessively toward the northwest corner.
Wood exterior paneling is slanted at a 10 degree angle instead of the required 45 degree angle.
The stair landing is six inches less in width than required by plans. Further, the landing (5 ft. 10 in. x 2 ft. 6 in.) is dangerous in that it is supported with only one joist at each end, instead of one every
24 inches.
The testimony of Petitioner's expert also established that an expenditure of approximately $51,205 would be required to simply repair or correct improper construction in order to have a final product which is in accordance with the plans referenced in the initial agreement.
The McCoys paid certain expenditures for which Respondent, under terms of the agreement, was to have assumed financial responsibility. Included in these items are:
Bathroom tiles.
Plumbing expenses.
Painting expenses.
The record is devoid of any evidence that the Respondent conducted any examination of the existing structure prior to contracting with the McCoys or initiation of construction on the project. Further, by the Respondent's own admission, it is established that he did not see the plans referenced in the written contract between the parties until several weeks after the construction was initiated. He proceeded with construction activities on the basis of a "concept".
Based on the demeanor of the Respondent, his testimony that the McCoys agreed to pay for "extras" resulting from the plans which were revised by Edna Mingo is not credited. The original written agreement between the Respondent and Ms. McCoy, executed on April 16, 1986, incorporated these revised plans. By his own admission, the Respondent had completed these "extras" before the middle of August of 1986. He did not discuss this problem with the McCoys until sometime between November of 1986 and January of 1987. The Respondent did not espouse a total cost amount attributable to the "extras" until the final hearing held in this cause. Further, Respondent's testimony that the McCoys agreed to pay additional costs resulting from the plans was not supported by testimony of any other witness.
The plans, as revised by Edna Mingo, depicted existing centers in the ceiling of the original structure as being 12 inches apart, when, in reality, they were 28 inches apart. These centers were required, by the revised plans, to be extended in order to support the overhang of the second floor addition. The Respondent discovered the disparity regarding the spacing of centers in the course of construction, but he failed to correct the problem with the result that the overhang will eventually sag.
At hearing, the Respondent confirmed that numerous punch list items had not been completed. He stated his willingness to have these tasks completed if the McCoys would allow entry to the premises for personnel performing these tasks.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to subsection 120.57 (1), Florida Statutes.
In paragraph four of the administrative complaint, the Petitioner alleges the Respondent has exhibited financial mismanagement, misconduct or diversion, in violation of subsection 489.129 (1)(h) and (m), Florida Statutes.
The charge of "diversion" is not addressed directly by any presently existing provision of section 489.129, Florida Statutes. Prior to the effective date of Chapter 87-74, Laws of Florida, (1987), the offense did exist. Proof of the commission of the violation required a showing that funds or property received by a contractor for the completion of a job had been diverted and, as a result, the job could not be completed. Both the diversion and a resulting inability to complete the job are essential elements requiring proof. The Petitioner failed to meet the burden of proof required for this offense.
A determination of guilt or innocence of the other charges set forth in paragraph four of the complaint, exhibiting financial mismanagement or misconduct in violation of subsection 489.129 (1)(h), Florida Statutes, revolves around the issue of abandonment. Notably, abandonment is, within itself, an offense subjecting the offending contractor to disciplinary action. The Petitioner has also charged the Respondent with this concomitant offense. If the Respondent is deemed to have abandoned the McCoy project from the period of August 15, 1986, until December 15, 1986, then a key element of the offense of exhibiting financial mismanagement or misconduct is proven, as is the subsequent charge of abandonment alleged by the Petitioner in paragraph five of the complaint.
In accordance with provisions of subsection 489.129 (1)(k) Florida Statutes, evidence of abandonment must be clear and convincing that a period of ninety days elapsed after the Respondent terminated the project without notification and without just cause. The evidence presented by the Petitioner does not meet that standard. There were discussions between the owner and the Respondent in October of 1986 which resulted in payment of additional money to the Respondent. Further, while Fitzgerald McCoy had a clear recollection that workmen returned to the project in December, he had no definitive recollection that absolutely no one appeared during the month of November. In contrast, the Respondent, also possessed of memory failings, did offer testimony to the effect that he must have had workmen on the site during October and November since he paid bills for those activities. At any rate, the finality of the concept of abandonment precludes its application in the interlocutory or provisional manner suggested by the Petitioner's complaint and facts presented in this case. The Respondent not only returned to the site, he continued to collect funds from the owners. Absent this element of abandonment and under the facts of this case, the Respondent is not guilty of the offense of financial misconduct or mismanagement as alleged in paragraph four of the administrative complaint.
Since the issue of abandonment has already been addressed, only those allegations of paragraph five of the administrative complaint charging the Respondent with failure to perform in a reasonably timely manner need be examined in order to dispose of the charges in that paragraph. First, the contract does not state that time is of the essence and sets forth no completion date. Secondly, the Respondent cannot be held accountable for failing to perform within a reasonable time absent a showing that the right to
timely performance was not waived, that a definite date for future performance was fixed between the parties and that the Respondent was given a reasonable time for compliance. McNeal v. Marco Bay Associates, 492 So.2d. 778 (Fla. App.
2 Dist. 1986). The Respondent is not guilty of the violations of subsection
489.129 (1)(h), Florida Statutes, as alleged in paragraph five of the complaint.
The Petitioner did not establish the Respondent's failure to supervise finances of an entity for which he was the qualifying agent as alleged in paragraph six of the administrative complaint. The Respondent is not guilty of this offense.
The Respondent has been charged in paragraph seven of the administrative complaint with committing gross negligence or incompetence in the practice of contracting. This charge has been proven clearly and convincingly through the facts adduced at hearing in this matter, and such constitutes a violation of section 489.129 (1)(m), Florida Statutes. The exercise of due care by the Respondent such as closer supervision during the construction process, and proper inspection prior to undertaking construction, could well have eliminated much of the defects and damages exhibited in this case. Gross negligence has been defined as "the want of ordinary diligence and care which the usually prudent man takes of his own property of like description" and "indifference to. . . duty and utter forgetfulness of legal obligations, so far as other persons may be affected, and a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence." Blacks Law Dictionary, Rev. 4th Ed. The Respondent is guilty of this offense.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final
order finding the Respondent guilty of the commission of gross negligence in the practice of contracting in violation of subsection 489.129 (1)(m), Florida Statutes. The penalty of permanent revocation suggested by the Petitioner is outside the maximum range set forth in subsection 21E-17.001 (19), Florida Administrative Code, and also appears overly harsh in view of the informal atmosphere which surrounded the contractual arrangements in this case. This is particularly so in view of the apparently previously unblemished record of the Respondent. The nature and extent of neglect in this case does, however, dictate imposition of a firm penalty. As required by subsections 21E-17.002(1) and (2), Florida Administrative Code, the aggravating circumstances in this situation, namely the additional cost to be endured by the owners to correct errors by the Respondent, justify the recommendation that the Respondent's license be suspended for a period of three years and that he be assessed an administrative penalty of $2,500.
DONE AND RECOMMENDED this 28th day of April, 1988, in Tallahassee, Leon County, Florida.
DON W. DAVIS
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 28th day of April, 1988.
APPENDIX
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.
PETITIONER'S PROPOSED FINDINGS
Petitioner's proposed findings consisted of 2 numbered paragraphs and 14 unnumbered paragraphs. Two of the unnumbered paragraphs have multiple numbered subdivisions. Numbers 3-14 have been applied to the unnumbered paragraphs and the numbered sub-paragraphs are redesignated with arabic letters.
Included in finding number 2.
Included in finding number 11.
Included in part in findings numbered 4, 5, and 17. The remainder is rejected as unnecessary for the result reached.
Included in findings 11 and 17.
Rejected as unnecessary for the result reached.
Included as to amount of pay in finding number 11. Remainder rejected as not supported by the weight of the evidence.
There appears to be a typographical error in this proposed finding by Petitioner. As to an amount of
$15,000 in extras claimed by the Respondent, this proposed finding is treated in finding number 18.
Rejected as not necessary for the result reached.
Rejected as not necessary.
Included in finding number 18.
Rejected as not necessary for the result reached.
Rejected as unnecessary.
Included in findings numbered 14 and 15.
Included in finding number 14.
a) rejected as unnecessary.
rejected as unnecessary.
included in finding number 7.
rejected, these were not the Respondent's responsibility.
included in finding number 19.
included in finding number 14.
rejected as redundant.
Included in finding number 15.
Included in part in finding number 20. Remainder rejected as redundant.
RESPONDENT'S PROPOSED FINDINGS
Included in finding number 2.
Included in finding number 3.
Included in finding number 3.
Included in finding number 3.
Included in finding number 3 and 4.
Rejected as unnecessary to result reached.
Included in finding number 4.
Included in finding number 4.
Included in part in finding number 17, Remainder Rejected as unnecessary.
Rejected as unnecessary.
Included in findings numbered 5 and 9.
Included in finding number 5 as to permit transfer.
Included in finding number 9.
Rejected as unnecessary for the result reached.
Included in finding number 9 as to payment amount, remainder rejected as unnecessary to result reached.
Rejected as unnecessary.
Included in finding number 11.
Included in finding number 10.
Included in finding number 11.
Included in finding number 10.
Rejected as unnecessary.
Included in part in findings numbered 14 and 15.
Included in finding number 20.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
COPIES FURNISHED:
Lee Sims, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
R. Daniel Koppen, Esquire 700 Northeast 90th Street Miami, Florida 33138-3206
William O'Neil, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Seely Executive Director
Department of Professional Regulation
Post Office Box 2 Jacksonville, Florida 32201
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 82122
DOAH CASE NO. 87-5309
DENFIELD L. KIRBY,
License No. CG C024695
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on June 9, 1988, in Fort Lauderdale, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was present and represented by counsel at the board meeting.
Upon consideration of the hearing officer's Recommended Order, and the exceptions filed to same, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
FINDINGS OF FACT
The Hearing Officer`s findings of fact are hereby approved and adopted.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The hearing officer's conclusions of law are hereby approved and adopted in toto.
Respondent is guilty of violating section 489.129(1)(m), Florida Statutes.
Respondents exceptions to the hearing officer's Recommended Order are rejected. Specifically, the hearing officer was correct in his conclusion that the Administrative Complaint issued in this cause met the essential requirements of due process.
There is competent substantial evidence to support the Board's findings and conclusions.
The hearing officer failed to take into consideration certain mitigating factors which counterbalanced the aggravating factors cited in support of a recommended penalty in excess of the disciplinary guidelines.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent shall pay an administrative fine in the amount of two hundred fifty ($250) to the Florida Construction Industry Licensing Board. Said fine shall be paid within thirty (30) days.
Respondent shall be on probation from the date of the Final Action herein, through July, 1990. Respondent shall make probation appearances before the Board in the months of January 1989, July 1989, January 1990, and July 1990. At said appearance Respondent shall stand for questions from the Board as to his firm's operations and finances, and shall supply the Board with such financial reports and other papers as the Board may require.
To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail it to the Board offices.
The Respondent shall provide to the Executive Director of the Board one of the following: (a) written statement bearing the notarized signature by Mr. and Mrs. McCoy, the statement to read exactly as follows: "This is acknowledgement that Denfield L. Kirby and I have settled our dispute;" or, (b) if a civil judgment is levied pursuant to this action, the Respondent will provide written material proving satisfaction of said civil judgment."
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of appeal with the Clerk of the Department of Professional Regulation, 130 N.
Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty
(30) days of the effective date of this Order.
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 27th day of June, 1988.
J. R. Crockett, Chairman
Construction Industry Licensing Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to
Denfield L. Kirby R. Daniel Koppen 1450 N.W. 176th Terrace 700 N.E. 90th Street
Miami, Florida 33169 Miami, Florida 33138-3206
and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 5th day of August, 1988.
Docket for Case No: 87-005309
Orders for Case No: 87-005309
| Issue Date |
Document |
Summary |
|
Jun. 27, 1988 |
Agency Final Order
|
|
|
Apr. 28, 1988 |
Recommended Order
|
General contractor found guilty of gross negligence. Penalty imposed of three year license suspension and an administrative fine of $2500.00.
|
