Judges: DIANE K. KIESLING
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 29, 1988
Summary: Contractor disciplined for pulling permit for job he did not control and manage. Ceased to be qualified agent, but too late to avoid culpability.
88-0556.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0556
)
FLOYD M. CARDIN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held on May 19, 1988, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Joseph M. Mawhinney
Attorney at Law
119 East Park Avenue Tallahassee, Florida 32302
For Respondent: Floyd M. Cardin, Pro Se
5052 Lourcy Road
Jacksonville, Florida 32223
The issue is whether the certified building contractor's license of Respondent, Floyd M. Cardin, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
The Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, (DPR) presented the testimony of Floyd M. Cardin, Liz Peters, and Robert Turbert. Petitioner's Exhibits 1-8 were admitted in evidence. Cardin presented his own testimony and had Respondent's Exhibits 1 and 3 admitted in evidence.
The transcript was filed on June 1, 1988. The parties stipulated that they would file their proposed orders within ten (10) days of the filing of the transcript Cardin filed his proposed order on June 10, 1988. DPR has failed to timely file a proposed order. Hence, only the proposed findings of fact and conclusions of law filed by Cardin have been considered. A ruling on each proposed finding of fact filed by Cardin is made in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Floyd M. Cardin holds a license as a building contractor, having been issued license No. CB C033326. On December 17, 1986, Cardin used this license to become the qualifying agent (QA) for American Screen and Awning.
On December 29, 1986, Liz Peters and Robert Turbert entered into a contract with American Construction Company for extensive renovation on their existing home. This contract was slightly amended by an addendum dated January 15, 1987. Both of these contract documents bear the license number of Cardin.
It appears that the parties all treated American Construction Company and American Screen and Awning as the same entity. However Cardin testified that he was never the QA for American Construction Company.
The contract was signed by Jerry Fries, a salesman for American Construction Company who did all of the negotiating and contracting with Peters and Turbert.
Cardin never saw a copy of the final contract between American Construction Company and Peters and Turbert. He was given an incomplete draft of the contract on an American Construction Company form with no price or cost stated by Fries. Based only on what Fries told him, on January 6, 1987, Cardin applied for a building permit for the job. On the application Cardin listed the cost as $6,000, when in actuality the contract called for a cost of $22,765 plus
$290.00 in the addendum. Cardin used his license number on the permit application and listed the company as American Screen. The permit was issued on January 6, 1987.
Cardin understood that he was to oversee the work and ensure that it was done correctly. However, Fries and American Construction were to hire the subcontractors and order and purchase materials.
Cardin began this job and two others at the same time. He acted as the QA for American Construction on all of these jobs.
Problems began almost at the start of the Peters/Turbert job. Fries made promises to the homeowners which Cardin knew nothing of and which Cardin could not keep. Fries hired and fired the subcontractors with no supervision by Cardin.
Cardin assumed the subcontractors would pull the necessary permits for the plumbing, electric and fireplace and would then call for the necessary inspections. This was never done. As a result, the fireplace does not meet code requirements and is hazardous and cannot be used.
As the work slowly progressed, the homeowners complained more and more about construction deficiencies. Among the problems that were never corrected were the failure to level the house, the failure to have the rooms be plumb and square, the failure to correct leaks which existed from the second week of construction, poor workmanship in the dry wall and plaster, and poor planning which resulted in a room that could not be used because the door could only open partially and the window edge was flush with the wall and couldn't be trimmed.
Peters paid a deposit when the contract was signed. She paid the next draw on January 12, 1987, when Fries told her the job was roughed in. American Construction Company never completed enough work to get the next draw.
In mid-March, 1987, Cardin discovered that American Screen and Awning was not paying the subcontractors as needed and was not purchasing the materials as needed to do this job. He also realized that he was being kept in the dark about the contract terms and that he had no control over the job. Cardin wrote the homeowners, assured them that he would see the job through to completion, and requested that all future payments be made payable to both him and American Screen Company.
From mid-March until April 14, 1987, very little work was done on the Peters/Turbert job. Materials were not available because American Construction Company did not pay for them. Subcontractors complained to the homeowners that they had not been paid. Peters finally paid for the kitchen cabinets herself after American Construction's check bounced.
Peters spent $6,000 of her own money to buy materials which were to have been covered by the contract. She also ended up paying $2,000 to have the house leveled, which should have been done by Cardin pursuant to the contract, and $1,375 to Winter's Plumbing, one of the subcontractors, to have the plumbing work completed and hooked up. This was also included in the original contract, but was never done by Cardin and American Construction Company.
Cardin never finished the Peters/Turbert job because on April 17, 1987, he was ordered off the premises by the owner of American Construction Company. Peters was present and acquiesced in having Cardin removed since American Construction Company had another contractor, Bill Davis, who said he would repermit the job and complete it for American Construction Company.
Cardin left the job on April 14, 1987, and cancelled the permits he had pulled for American Screen and Awning that same day.
American Construction Company and Bill Davis never completed the job.
Cardin did not actually file the necessary forms to cancel his license as the QA for American Screen and Awning until August, 1987.
Cardin acknowledged at hearing that this was the first time he had been a QA for a company he did not own. He acknowledged that he should have known whether the subcontractors pulled the necessary permits and got the necessary inspections. He further acknowledged that as the QA, he was responsible for the job.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Administrative Complaint charges Card in with violations of Section 489.129(1)(d), (j), (k), and (m) as follows:
(d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
* * *
Failure in any material respect to comply with the provisions of this act.
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.
* * *
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross
negligence, incompetency, or misconduct in the practice of contracting.
Additionally, Section 489.105(4) states:
(4) "Qualifying agent" means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit;.
In the present case, it is undisputed that necessary permits and inspections were not sought by the subcontractors. As the qualifying agent and the permit applicant, Cardin was responsible for the construction activities on this job. Part of that responsibility is to ensure that all necessary permits and inspections are done. Cardin failed to do this and therefore violated Section 489.129(1)(d)
Cardin notified the owners when he ceased to be the QA, when he withdrew the permit issued to him, and when he was ordered to leave the job. The owners elected to continue to deal with American Construction and its new contractor. Additionally, Cardin had sufficient just cause for his actions which ultimately resulted in his departure from the job. Accordingly, Cardin did not abandon the job and did not violate Section 489.129(1)(k). This charge should be dismissed.
Cardin did not perform the duties of a qualified agent because he did not direct, manage or control the construction activities on this job. He had no idea what was going on except as it related to some of the carpentry performed by his own crew. He didn't even know what was in the contract, except what he was told by the salesman. Cardin had no idea who the subcontractors were or what they were doing. Cardin had no control over work schedules, draws, materials, or plans. This level of involvement in the job falls woefully short of that required by Section 489.105(4). This failure is also a violation of Section 489.129(1)(j) in that Cardin failed to fulfill his statutory responsibilities to a material degree.
Finally, while there was insufficient evidence to find that Cardin was grossly negligent or incompetent in the work he actually did perform, it must be concluded that Cardin's failure to adequately perform as the qualifying agent was so egregious as to amount to misconduct in the practice of contracting.
This is especially true where, as here, the homeowner suffered serious financial consequences as a result of the irresponsibility of the qualifying agent who permitted the company to use his license number to enter into contracts over which the licensee would have essentially no control or direction. It therefore must be concluded that Cardin is guilty of misconduct and has violated Section 489.129(1)(m)
DPR put on no evidence regarding aggravating or mitigating circumstances, so none are considered. As a mitigating circumstance, it is considered that Cardin attempted to keep the homeowners advised regarding the situation and he did withdraw the permit once he determined that the job was out of his control. However, by that time the damage had already been done.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction
Industry Licensing Board, enter a Final Order and therein:
Dismiss the allegations involving Section 489.129(1)(j).
Find Floyd M. Cardin guilty of violating Sections 489.129(1)(d), (k), and (m).
Place Cardin's license on probation under such appropriate terms and conditions as to ensure that Cardin will not violate the statutes in the future as they relate to the responsibilities of qualifying agents.
Impose a fine of $250 for the violation of Section 489.129(1)(d).
Impose a fine of $250 for the violation of Section 489.129(1)(k).
Impose a fine of $500 for the violation of Section 489.129(1)(m).
Require that all fines be paid prior to future contracting activities pursuant to Cardin's license.
DONE and ENTERED this 29th day of June, 1988, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1988.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0556
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Respondent in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Floyd M. Cardin
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2 + 3); 4(12); 5(15); 7(12)and 20(15).
Proposed findings of fact 2, 6, 12-14, 18, 22-24, and 40 are rejected as being unsupported by the competent, substantial evidence.
3. Proposed findings of fact 3, 8-11, 15, 19, 29, 30, 34, 35, and 37-39 are subordinate to the facts actually found in this Recommended Order.
4. Proposed findings of fact 16, 17, 21, 25-28, 31-33, and 36 are irrelevant.
COPIES FURNISHED:
Joseph P. Mawhinney Attorney at Law
119 East Park Avenue Tallahassee, Florida 32302
Floyd M. Cardin, Pro Se 5052 Lourcy Road
Jacksonville, Florida 32223
Tom Gallagher, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 88-000556
Orders for Case No: 88-000556
| Issue Date |
Document |
Summary |
|
Dec. 01, 1988 |
Agency Final Order
|
|
|
Jun. 29, 1988 |
Recommended Order
|
Contractor disciplined for pulling permit for job he did not control and manage. Ceased to be qualified agent, but too late to avoid culpability.
|
