STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2268

)

HENRY L. HAYWOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

In anticipation of the final hearing scheduled for September 14, 1988, prehearing conferences were held on September 12, 1988, and September 13, 1988, by telephone. During those conferences, the parties were represented as follows:

For Petitioner: Michael J. Cohen, Esquire

COHEN, MEE & KENNEDY, P.A.

517 Southwest First Avenue

Fort Lauderdale, Florida 33301

For Respondent: Henry L. Haywood, Pro se

611 Northeast 39th Street Pompano Beach, Florida 33064

During these prehearing conferences, the following facts were stipulated, making a formal hearing unnecessary:

1. Mr. Haywood is a contractor who holds Board licenses CG C020611, CR C015365, and RC 0042577. His address is 611 N.E. 39th Street, Pompano Beach, Florida 33064.

   
   

   As to Count I:

   
   

2. On or about 27, 1984, Mr. Haywood contracted to remodel the Shuler Memorial Chapel in Delray Beach, Florida, for $87,000. Mr. Haywood completed the job and was paid the contract price.

   
   

3. During the course of that job, Mr. Haywood subcontracted with Windmill Sprinkler Company, Inc., for Windmill to install a sprinkler system on the job for $1,680. Windmill completed its installation but was not paid. Windmill, thereafter, filed a claim of lien against Shuler Memorial Chapel for labor and materials relating to the job in the amount of $1,634.50. The lien has not been foreclosed and as a matter of law, the lien has expired.

   As to Count II:

   
   

4. On or about January 22, 1985, Mr. Haywood contracted with Forrest Sapp to build a house in Palm Beach County, Florida, for a contract price of $40,150. The house was built under a low income housing program administered by the United States Farmer's Home Administration.

   
   

5. Mr. Haywood was paid a total of $39,071 on behalf of Mr. Sapp for the construction. Mr. Haywood ceased work on the job at a time he regarded the job as substantially completed. Although some items were unfinished, Richard Whalen, of Craig Construction, the Board's expert, did not feel the items left undone constituted abandonment. The Department, therefore, could not prove its allegation of abandonment at a formal hearing.

   
   

6. During the course of construction, Mr. Haywood had subcontracted with Southern Electric to install the electrical system for the house for a price of

   $2,190. At the time Mr. Haywood withdrew from the job, Southern Electric was owed $657.

   
   

7. Mr. Haywood had subcontracted with AAA Insulation of Florida, Inc., for thermal insulation on the job but had failed to pay the $576 due for insulation when he withdrew from the job.

   
   

8. Mr. Haywood also subcontracted with Grady Parker Landscaping and Paving, Inc., for sod on the job, for a price of $777.50. He had not paid for that sod at the time he withdrew.

   
   

9. Southern Electric, AAA Insulation and Grady Parker Landscaping filed claim of lien against the Sapp property. Those liens have not been foreclosed and have expired as a matter of law.

   
   

   As to Count III

   
   

10. On or about December 13, 1984, Mr. Haywood contracted with W. Delores Lucas to build a house in Delray Beach, Florida, for a contract price of

    $40,150. As with the Sapp home, this home was built under a low income housing program administered by the United States Farmer's Home Administration.

    
    

11. Mr. Haywood was paid $40,150 on behalf of Ms. Lucas for the house.

    
    

12. Mr. Haywood subcontracted with Southern Electric to install the electrical system at the house for a price of $657. After completing the installation, Southern Electric was not paid by Mr. Haywood.

    
    

13. Mr. Haywood subcontracted with AAA Insulation of Florida, Inc., for thermal insulation on the house for a price of $576. When he withdrew from the construction he had not paid AAA Insulation for its insulation.

    
    

14. Both Southern Electric and AAA Insulation filed claims of lien against the Lucas property. Those liens have not been foreclosed, and have expired as a matter of law.

    
    

    As to Count IV

    
    

15. The Department can produce no witnesses in support of Count IV of the administrative complaint which is, therefore, dismissed.

16. By way of mitigation, Mr. Haywood maintained that at the time he bid to build these houses under the Farmer's Home Administration program, construction prices were substantially below his contract price. A delay by the government of about two years in implementing the program locked him into a price but the cost of materials rose. This resulted in a loss of approximately

    $350 per house to Mr. Haywood. At the time he withdrew, Mr. Haywood simply did not have the funds to pay the subcontractors. He has made an effort since that time to pay what is owed to the subcontractors. Some subcontractors did file liens, they were never foreclosed, and now have expired as a matter of law. No person who hired Mr. Haywood actually suffered any monetary loss as the result of Mr. Haywood's inability to pay the subcontractors. Mr. Haywood has been licensed for approximately 10 years, and no other complaints have been filed against him. These complaints arise from a narrow time period where Mr. Haywood had financial troubles in building houses for the agreed price under a delayed federal program, and are not indicative of a general pattern of misconduct.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over this matter pursuant Section 120.57(1)(2), Florida Statutes (1987).

    
    

18. By failing to pay subcontractors and permitting liens to be filed by subcontractors against an owner's property when owners had paid the contract price to Mr. Haywood for his work, Mr. Haywood is guilty of a violation of Section 479.129(1)(m), Florida Statutes, which proscribes gross negligence or misconduct in the practice of contracting. Because no monetary or other harm to the contracting party occurred, under Rule 21E-17.001(19)(a), Florida Administrative Code, the penalty prescribed is a fine from $250 to $750. Even though there is more than one instance of misconduct are involved, this proceeding does not involve "repeat violations" as that term is defined in Rule 21E-17.003(1), Florida Administrative Code. Under that rule a repeat violation is one "on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case." There is no proof of prior disciplinary action against Mr. Haywood.

    
    

19. Under Rule 21E-17.005, Florida Administrative Code, where multiple violations are considered together, penalties are normally cumulative and consecutive. It is, therefore, appropriate for the Board to impose a fine of

    $500 for each of these violations. The total fine to be imposed for violation of Section 289.129(1)(m), Florida Statutes, in the Shuler, Sapp and Lucas cases is a fine of $1,500.

    
    

20. The Department also asked that Mr. Haywood's license be suspended until the subcontractors are paid. There is no basis for such a penalty in the Board's disciplinary guidelines. The Board cannot use the discipline process as a tool for the collection of debts between licensees or among tradesmen. See Fleischman v. Department of Professional Regulation, 441 So.2d 1121, 1122 (Fla. 3d DCA 1983), rev. denied, 452 So.2d 847 (Fla. 1984). (Discipline not appropriate means to resolve a civil dispute over who is entitled to money).

RECOMMENDATION

It is recommended that a final order be entered fining Henry Haywood $1,500 for these violations of Section 289.129(1)(m), Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1988.

WILLIAM R. DORSEY, JR.

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 16th day of September, 1988.

COPIES FURNISHED:

Michael Cohen, Esquire

517 Southwest First Avenue Fort Lauderdale, Florida 33301

Mr. Henry L. Haywood

611 Northeast 39th Street Pompano Beach, Florida 33064

Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Courtesy copy to:

Mr. Steve Deinma AAA Insulation

1900 Australian Avenue Rivera Beach, Florida 33404

Docket for Case No: 88-002268

Orders for Case No: 88-002268