STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0738

)

JAMES A. RILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 17, 1988, in Lakeland, Florida. The issue for determination in this proceeding is whether disciplinary action should be taken against respondent Riley's license as a certified building contractor for the reasons set forth in the Administrative Complaint.

APPEARANCES

For Petitioner: Jack M. Larkin, Esquire

806 Jackson Street

Tampa, Florida 33602

For Respondent: James A. Riley

1934 Lake Parker Drive West Lakeland, Florida 33805

INTRODUCTION

Respondent James A. Riley was charged by Administrative Complaint with violations of Chapter 489, Florida Statutes. In support of the charges, the petitioner presented the testimony of Marion Smith, Robert A. Rasmussen and Lucille Clayton, and its Exhibits 1, 2 and 3 were received into evidence. The respondent Riley testified in his own behalf, but offered no other witnesses or documentary evidence.

Subsequent to the hearing, only the petitioner submitted proposed findings of fact and proposed conclusions of law. The petitioner's proposed factual findings are accepted and/or incorporated herein.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding, the respondent James A. Riley was a certified building contractor in Florida, having been issued license number CB-C029035.

   
   

2. On or about April 23, 1985, Marion Smith entered into a contract with William Ross to remodel two duplexes in Lakeland. At that time, Mr. Ross held himself out to Ms. Smith as a licensed contractor. Ms. Smith agreed to pay Mr. Ross $9,975.00 for the remodeling work, which included reroofing, painting inside and out, porch screening, redoing inside walls and bathrooms, and certain kitchen work.

   
   

3. By Application for Permit dated April 23, 1985, and received by the City of Lakeland Building Inspection Division on April 24, 1985, James Riley requested a building permit to do certain work at the residence of Marion Smith. The description of the work to be done was "reroof - replace doors - panel - drywall - window - repair floor, etc., kitchen - bath, bedrooms, paint house." The permit application also stated that the work was to be done by "Riley Const." and that the name of the architect, designer or applicant was James Riley. Marion Smith never met or spoke with James Riley until August of 1985.

   
   

4. William Ross commenced work on the duplexes within a week of the time that the April 23, 1985, contract was signed. He last worked on the project in June of 1985, after Marion Smith had paid him in full. At the time Mr. Ross left the project in June, the entire insides of the duplexes were incomplete.

   
   

5. Mr. Ross was never licensed as a contractor in Florida, nor was he registered as a contractor in the City of Lakeland.

   
   

6. Marion Smith learned from City of Lakeland officials that it was James Riley who had pulled the permit for work on her duplexes. On or about August 24, 1985, she and respondent Riley entered into an agreement whereby respondent agreed to complete the work and furnish all labor and materials. The agreement states that "We value this work at $3,200.00 to be paid by William Ross..." The agreement further provides that work will be started on August 27, 1985, and completed on or before October 7, 1985.

   
   

7. Respondent Riley began work, plastered the ceilings and started to paint the walls. He last worked on the duplexes in October of 1985, leaving incomplete the bathroom work, the kitchen cabinet work, electrical fixture work and the remainder of the wall painting.

   
   

8. Thereafter, Marion Smith had to employ others to complete the work originally contracted for by Mr. Ross and which respondent Riley subsequently agreed to complete. She paid approximately $3,500.00 to have the unfinished work completed. One of the duplexes was completed in December of 1985, and the other was completed sometime in 1986.

   
   

9. Respondent Riley testified that he did not complete the work on the Smith duplexes because Ms. Smith took the keys away from him when she became dissatisfied that he was not finishing the job fast enough. He admits that he was only working part time on that project. Marion Smith's mother testified that respondent Riley told her he could not finish the work because Marion Smith never gave him any money.

   
   

10. Two disciplinary actions have been brought against respondent Riley's registration as a contractor by the City of Lakeland. His registration with the City has been suspended twice for thirty days each time.

    CONCLUSIONS OF LAW

    
    

11. The Construction Industry Licensing Board is authorized to revoke or suspend a license or registration, to impose a fine, to place a contractor on probation, or to reprimand or censure a contractor when a contractor is found guilty of violating the provisions of Chapter 489, Florida Statutes. Here, respondent is charged with the following violations of Section 489.129(1) Florida Statutes: aiding or abetting an uncertified or unregistered person to evade Chapter 489 (Section 489.129(1)(e)): acting as a contractor except in the name of the certificate holder or registrant (Section 489.129(1)(g)); disciplinary action by a county (Section 489.129(1)(i)); failure to comply with Chapter 489 (Section 489.129(1)(j)); abandonment of a construction project (Section 489.129(1)(k)); and proof of fraud and deceit or misconduct in the practice of contracting (Section 489.129(1)(m))

    
    

12. The petitioner presented sufficient evidence to establish that respondent Riley improperly aided William Ross, who was not licensed as a contractor, in obtaining a construction permit to perform construction work for Ms. Smith. Mr. Ross's work was neither supervised nor managed by the respondent. When Mr. Ross abandoned the project, respondent Riley was obligated to complete the project. He entered into a separate agreement with Ms. Smith and agreed to complete the project on or before October 7, 1985. He then failed to perform in accordance with that agreement also. Ms. Smith consequently had to hire another contractor to complete the project at additional cost to her. With regard to the Smith project, the evidence demonstrates that respondent is guilty of violating Section 489.129(1)(e),(j),(k), and (m), Florida Statutes. The facts presented do not show a violation of Section 489.129(1)(g), Florida Statutes. The respondent's testimony that he was prevented from completing the construction work by Ms. Smith is not credible.

    
    

13. The testimony of Mr. Rasmussen, Superintendent of the City of Lakeland's Building Inspection Division, that respondent's registration as a contractor has been twice suspended by the City was unrebutted. As such, respondent is also guilty of violating Section 489.129(1)(i), Florida Statutes.

    
    

14. In determining the appropriate penalty to be imposed against the respondent, the undersigned is mindful of the disciplinary guidelines set forth in Chapter 21E-17, Florida Administrative Code, and particularly the provisions of Rule 21E- 17.002 relating to aggravating and mitigating circumstances. The evidence demonstrates that respondent was afforded the opportunity to relieve the monetary damages suffered and to shorten the time delays occurring as a result of his wrongful acts of allowing a permit to be obtained and failing to supervise the work of an unlicensed person. He chose not to fulfill these responsibilities, thereby causing further monetary damages and time delays.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent James A. Riley be found guilty of violating Section 489.129(1)(e),(i),(j),(k) and (m), Florida Statutes, that his certification as a building contractor be suspended for a period of eighteen

(18) months, and that an administrative fine of $1,500.00 be imposed.

It is further RECOMMENDED that, should respondent provide written proof to the Board, within six (6) months of the date of the Final Order in this cause, that he has relieved Marion Smith of the additional monetary damages incurred to

complete the construction work on the duplexes, the period of suspension be shortened to a period of six (6) months from the date such written proof is provided.

Respectfully submitted and entered this 30th day of June, 1988, in Tallahassee, Florida.

COPIES FURNISHED:

Fred Seely, Executive Director DPR, Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Jack M. Larkin, Esquire 806 Jackson Street

Tampa, Florida 33602

James A. Riley

1934 Lake Parker Drive West Lakeland, Florida 33805

DIANE D. TREMOR

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 30th day of June, 1988.

Docket for Case No: 88-000738

Orders for Case No: 88-000738