vs. ) CASE NO. 88-1623
JAMES A. CAMPBELL, )
Respondent. )
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
Belinda H. Miller, Esquire, of Tallahassee, for Petitioner. James A. Campbell, pro se.
Final hearing was held in this case in Tampa on June 22, 1988, on Petitioner's charges that the Respondent, James A. Campbell, either abandoned a construction job or failed to perform in a reasonably timely manner, in violation of Section 489.129(1)(k) or (m), Florida Statutes (1987).
In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application.
On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at
551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986.
When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986.
At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987.
By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks.
Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job.
In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987.
In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.)
When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
CONCLUSIONS OF LAW
Section 489.129(1), Florida Statutes (1987), authorizes the Construction Industry Licensing Board to revoke or suspend a contractor's license, impose an administrative fine not to exceed $5000, place a contractor on probation, or reprimand or censure the contractor for, among other things:
(k) 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.
Under the facts of this case, the Respondent is not guilty of abandoning the Rodriguez job. Work was done after the initial complaint of abandonment. In May, 1987, work proceeded to the point of drywalling the addition, triggering the next $2000 draw under the contract. Rodriguez refused to pay the draw, refused to give the Respondent additional time needed to finish the job and ordered the Respondent off the job.
As to the charge of a violation of Section 489.129(1)(m) by failure to perform in a reasonably timely manner, the facts do reflect that the work did not proceed in a timely manner at times, particularly in the approximately two months after mid-February, 1987. This delay was unreasonable. It was occasioned, in large part, by a series of events--Mills' unreasonable bid, Campbell's absence, Ritchie's inability to promptly finance the short fall--for which Campbell, as the qualifying contractor for the business(es) involved, is responsible. But the evidence was not sufficient to prove that Campbell was guilty of fraud or deceit or of gross negligence, incompetency or misconduct in the practice of contracting.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against the Respondent, James A. Campbell.
RECOMMENDED this 7th day of July, 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988.
Belinda H. Miller, Esquire Department of Professional Regulation
James A. Campbell
