DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD )
vs. ) CASE NO. 88-1999
FRED H. MOORE, )
Respondent. )
A hearing was held in this case before Arnold H. Pollock, Hearing Officer, in Tampa, Florida on May 25, 1988. The issue for consideration is whether Respondent's license as a general contractor should be disciplined because of the misconduct alleged in the Administrative Complaint.
For Respondent: Fred H. Moore, pro se
On November 9, 1987, Douglas A. Shropshire, on behalf of Tom Gallagher, Secretary of the Department of Professional Regulation, (DPR), signed an Administrative Complaint in this case alleging that the Respondent was guilty of several violations of Section 489.129, Florida Statutes, by contracting with a client while his license was suspended, by violating local law, and by being guilty of gross negligence, incompetence, or misconduct in the practice of contracting. Respondent disputed the allegations and requested a formal hearing by an Election of Rights form signed on December 12, 1987, and on April 21, 1988, the matter was referred to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated April 29, 1988, the undersigned set the case for hearing on May 25, 1988 and the matter was heard as scheduled.
At the hearing, Petitioner presented the testimony of Clarence P. Foster, Jr., the property owner with whom Respondent contracted; Daniel H. Palmer, a plans examiner with the Pinellas County Building Department; and Fred H. Moore, the Respondent. Petitioner also introduced Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf and introduced Respondent's Exhibit A.
Subsequent to the hearing, a transcript was furnished. Counsel for Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the allegations contained in the Administrative Complaint filed herein, Petitioner was licensed as a general contractor in Florida, holding license number CG CO20660, under which license he had qualified Custom Retail Contractors, Inc., and the Petitioner, Construction Industry Licensing Board, (Board), was the state agency charged with regulating the practice of contracting.
On February 12, 1986, the Board entered a Final Order in its case number 0058164 in which it suspended Respondent's license to practice contracting for five years. This action was based on a finding that Respondent had violated several sections of the Standard Building Code in a contract to build several commercial buildings in Largo, Florida, and also had exhibited gross negligence or incompetency in several aspects of the job. Respondent was first made aware of the action of the Board in late March or early April, 1986 when his attorney, Mr. Gordon, told him he had received a copy of the Final Order. At that point, Respondent did not know there had been a hearing on his case, though he knew an action had been filed.
Correspondence extracted from the files of DPR relating to Respondent, indicates that between March 11, 1986 and June 25, 1986, several phone calls and letters were exchanged between DPR legal personnel and Respondent's counsel regarding whether Respondent had been given notice that the initial Administrative Complaint against him had been filed. The complaint had been served by an investigator with DPR on Mr. Gordon who declined to accept service since he was counsel for Respondent's corporation and not Respondent, individually. The evidence further indicates that subsequent pleadings in that case were misdirected and misaddressed due to faulty addresses used by the Department which included erroneous street addresses and erroneous ZIP codes. The upshot of all this was that Respondent failed to submit an Election of Rights regarding the initial Administrative Complaint, and, after numerous attempts at communication by DPR, which included the posting of a notice of the Board hearing in the Clearwater, Florida newspaper, the Board ultimately held Respondent in default and entered the Final Order suspending his license as described above.
In the Spring of 1986, however, while the communication and correspondence between DPR and Mr. Gordon was going on, Respondent was led to believe, he contends, that the Final Order was not dispositive of his status, that the status of his license was still undecided, and that he could continue to practice his profession. His reliance on advice of counsel was misplaced and works to his detriment here as it does not excuse his improprieties.
Consistent with that understanding, on May 1, 1986, Respondent entered into a contract with Mr. Clarence P. Foster, owner of Clarence's, a lounge, restaurant and package store located in Clearwater, Florida, to remodel a patio outside the facility. Work was to include pouring a concrete slab in the drive- thru, constructing a block wall around the patio, installing lattice panels on top of the block wall, and placing planter boxes on two of the walls. The total contract price was $4,730.00 and on May 15, 1986, the manager of Clarence's
issued a check in the amount of $1,730.00 payable to Tom Morgan, Respondent's associate.
At the time of Respondent's negotiations with Mr. Foster, Mr. Foster indicated he was utilizing a contractor for the complete remodeling of his facility who did not want to do the patio work, and Respondent agreed to do it. After their contract was signed, Respondent dealt with Mr. Foster's manager who showed him the plans for the entire remodeling which, according to Respondent, included the patio. They were stamped by the contractor and had a permit number on them. Respondent contends he asked if that indicated permit included the entire project and claims he was told it did.
Respondent also claims he advised Foster's manager that there was some problem with his contractor's license but was assured that the master permit already issued would cover any work done by him under the terms of the individual contract. After receiving the down payment from the manager, Respondent purchased the required materials, paying cash therefore, and started work.
Respondent relates that at the very beginning, a violation was written by building inspectors for the failure of the electrical contractor to procure a permit for his portion of the work. When this was done, the contractor immediately got the required permit after the fact and continued with his work. This concerned the Respondent, however, and he requested the manager to bring the existing permit for the remodeling around to the area where Respondent was working where he posted it and covered it with cellophane.
When the inspector subsequently came by to check Respondent's work, he asked where the permit for that portion of the construction was and Respondent pointed to the master permit. The inspector then indicated that that permit was only for exterior siding and when Respondent protested that decision, called his office and verified that fact. Upon being advised of this development, Respondent then took the plans he had been furnished and a copy of the permit to the building office and asked the clerk on duty what he had to do. According to Respondent, he was advised that he needed to get more plans prepared with a certificate that the work already done had been done to code.
Respondent relates that in response to these instructions, he procured an architect to come and look at the job as it then stood. The architect reportedly thereafter drew up plans and certified the quality of the work already accomplished by Respondent and Respondent allegedly took this information to the building department where, on June 25, 1986, he applied for a building permit to do the work. At that time, according to Respondent, he advised the clerk he had a problem with his license and that all he wanted was a supplemental permit to finish the job.
Approximately two weeks later, when passing the County building, Respondent stopped in at the building department office to check on the status of his permit. It was at this point that he first discussed the matter with Mr. Palmer, the plans examiner, who told him that his license had been suspended and that he could not receive a permit to do the work requested. Respondent returned to Mr. Foster and explained the situation to him. Mr. Foster turned the matter over to his manager who arranged for someone else to get the permit and complete the job.
Respondent contends he was not trying to trick anyone or to contract without a license. He claims that at the time he entered into the agreement
with Mr. Foster, he was unsure of the status of his license and he thought he had made that clear to everyone, including Mr. Foster and the people at the building office.
Respondent contends that in his dealings with Foster he was attempting to deal as a subcontractor and not as a general contractor. The fact is, however, that the contract he entered into was a separate contract with Mr. Foster and failed to indicate any reference to subcontractor status. The agreement called for Respondent to be paid directly by Foster and not by the general contractor and his claim is, therefore, not believed. Respondent's protestations in this regard are without merit. Further, his story regarding the permit status is equally as unbelievable. As a qualified contractor, Respondent knew, or should have checked on, the limits of the permit issued and whether it would cover the work he was to do. Reliance on the representations of the non-contractor manager of Mr. Foster's facility as to the status of the permit was unreasonable and constituted gross negligence. Consequently, he was thereafter operating in violation of the local law which required a permit for this work.
As a result of the ongoing negotiations between Respondent's counsel and counsel for the Board, on July 10, 1986, after the contract between Mr. Foster and Respondent had been entered into, Respondent and the Board entered into a Settlement Stipulation which called for amendment of the Final Order entered in the prior case and which provided for the payment of a fine of
$1,000.00 within 30 days with the further stipulation that when the fine was paid, the previously imposed five year suspension would be set aside. In the event the fine was not paid, however, then the Respondent's license was to be relinquished to the Board. The Amended Final Order was sent by certified mail to the Respondent but was unclaimed because the address used by the Department was, again, incorrect.
It must also be noted, however, that at the time the Board agreed to the settlement stipulation, it had available to it the report of investigation relating to the current Administrative Complaint. The Board either failed to consider it or chose to ignore it when it agreed upon a settlement to the former Administrative Complaint.
It is also noted that the Board was aware of the difficulties involving service of process as early as August, 1986. At that time, Respondent received a certified letter from the Board Attorney indicating that final action on his license would be taken by the Board at its September, 1986 meeting in Ft. Lauderdale. Respondent attended that meeting where, after discussion, counsel for the Board convinced the Board to reopen the case due to the questions involving proper service of its former actions. A year later, in July, 1987, Respondent was advised that the reopened case would again be considered at the Board's meeting in Tampa, and at the 1987 meeting of the Board, it entered its Amended Final Order. Though regrettable, these factors are not controlling and do not affect this current action.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
Respondent has indicated that he was unaware of the status of the prior disciplinary action against him at the time he entered into the contract with Mr. Foster. The evidence of record clearly shows that his license had been
suspended and to counter that, Respondent has testified that the matter was being handled for him by his attorney, now deceased.
There is no dispute that an investigator for DPR attempted to effect service of the Administrative Complaint in the prior case on the Respondent by delivery to his counsel of record who refused to accept it. Counsel's reason for refusal, that he represented Respondent's corporation and not the Respondent, is not persuasive. Albeit there was a significant amount of error and confusion in the addresses utilized by the Board to reach the Respondent, and that, as a result, some documentation did not get to him, the Board did publish the appropriate notice in the Respondent's newspaper in a lawful and proper manner which constituted constructive notice, and corrected any previous error and conferred jurisdiction.
Therefore, the prior action of the Board, which resulted in a suspension of Respondent's license, was legally effective. No inquiry into the merits of that action is undertaken here as it is not an issue at this hearing.
Turning, then, to the allegations here, Section 489.129(1), Florida Statutes, authorizes the Board to discipline the certificate or registration of a contractor who it finds guilty of one or more of several acts outlined therein.
Subsection 489.129(1)(j), relates to the contractor's failure in any material respect to comply with the provisions of the statute.
Petitioner contends that by contracting with a suspended license, Respondent violated Section 489.127 which prohibits an individual from engaging in the business or acting in the capacity of a contractor without being duly registered or certified, (f), and from using or attempting to use a certificate or registration which has been suspended or revoked, (e). The evidence of record clearly shows that at the time he entered into the contract with Mr. Foster, Respondent's certificate as a contractor had been and was under suspension. Respondent either knew or should have known this and his claims that he did not until so advised by Mr. Palmer, are not supported by the evidence.
Consequently, Respondent was in violation of Section 489.127(e) and (f), and as such, also in violation of Section 489.129(j).
Respondent is also charged with a violation of Section 489.129(1)(d), which prohibits a willful or deliberate disregard and violation of the applicable building codes or laws of the state or a subdivision thereof by failing to secure a permit for the work he contracted to do for Mr. Foster.
Respondent contends he was assured the work he was to do was covered by the permit secured by the general contractor with whom Mr. Foster had contracted to do the overall project. Respondent has been a licensed contractor for a substantial period of time and presumably knows the requirements for permitting. His failure to check on the status of the permit with someone who would be likely to know, if not willful or deliberate disregard for the permitting requirements of the city, is at least gross negligence in the practice of contracting as prohibited in Section 489.129(1)(m). The evidence fails to show the willfulness or deliberateness required by Section 489.129(1)(d).
Finally, Petitioner charges Respondent with failing to properly supervise the business which he qualified. Since Respondent's misconduct all relates to his personal activity in the qualified business, it would be redundant and multiplicious to charge as a separate offense those actions otherwise charged against him individually.
The instant case constitutes Respondent's second recorded episode of misconduct. It is clear that Respondent is either unable or unwilling to conduct his contracting practice in a manner consistent with the statute governing that practice. The evidence introduced at the hearing demonstrates that at best, Respondent approaches the contracting business with a cavalier attitude toward the requirements of his profession, and his attempts at exculpation are non-persuasive.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that the Respondent's license as a general contractor in Florida be suspended for two years.
RECOMMENDED this 11th day of July, 1988, at Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1999
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
1 - 2. Accepted and incorporated herein.
3. Accepted and incorporated herein.
4 - 5. Accepted and incorporated herein.
10 - 13. Accepted and incorporated herein.
No submittal.
Fred H. Moore
