STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2489

)

MARK O. HOLLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on September 27, 1988. The parties are represented as follows:

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mark O. Holland, pro se

Route A, Box 366 Youngstown, Florida 32301

The issue addressed in this proceeding is whether Respondent is subject to discipline under Chapter 489, Florida Statutes.

At the hearing, Respondent did not appear.

Petitioner filed its proposed recommended order on October 12, 1988.

Respondent did not submit a proposed recommended order. Petitioner's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings of the Petitioner's proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action.

   
   

2. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City,

   Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date.

   
   

3. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of

   $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job.

   
   

4. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract.

   
   

5. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract.

   
   

6. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors.

   
   

7. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job.

   
   

8. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent.

   
   

9. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and

   M.D. Stewart Plumbing Company.

   
   

10. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent.

    
    

11. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent.

    
    

12. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job.

13. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board.

    
    

14. Respondent has never refunded any of the contract price to Mrs. Thames.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings, Section 120.57(1), Florida Statutes.

    
    

16. Pursuant to Section 489.129(1), Florida Statutes, the Construction Industry Licensing Board is empowered to take disciplinary action against a licensed contractor and provides in pertinent part as follows:

    
    

    The Board may revoke, suspend, or deny the issuance or renewal of the certificate of registration of a contractor or impose an administrative fine not to exceed $5,000.00, place a contractor on probation, or reprimand or censure a contractor if the contractor,... is found guilty of any of the following acts:

    
    

    489.129(1)(h): Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

    1. Valid liens have been recorded against the property of a contractor's customer for suppliers or service ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the suppliers or services; and the contractor has not had the liens removed from the property, by the payment or by bond, within 30 days after the date of such liens.

    2. The contractor has abandoned a customer's job and the percentage of completion is less than percentage of the total contract of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned.

    3. The contractor's job has been completed, and it is shown that the

       customer has had to pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.

       
       

       489.129(1)(i): Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

       
       

       489.129(1)(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 is the contractor terminates the project without notification to the prospective owner and without just cause.

       
       

       489.129(1)(m): Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

17. The Administrative Complaint alleged that Respondent exhibited financial mismanagement, misconduct or diversion in connection with Mrs. Thames' job in violation of Section 489.129(1)(h) and (m), Florida Statutes, that Respondent failed for perform the job in a reasonably timely manner and/or abandoned the job in violation of Section 489.129(1)(m), (k), Florida Statutes; and that Respondent had been disciplined by a local government in violation of Section 489.129(1)(i) Florida Statutes.

    
    

18. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged. Ferris v. Turlington, 510 So.2d 292 (Fla.1987).

    
    

19. Petitioner has established by clear and convincing evidence that Respondent was guilty of financial mismanagement, misconduct, or diversion in that Respondent had abandoned the job and the customer, Mrs. Thames, paid for materials that Respondent was obligated to supply. Respondent has not paid suppliers for work done and/or materials delivered to the Thames job even though the money for these materials had been paid to Respondent and the amount required to complete the job was less than the money Respondent had received from Mrs. Thames. Section 489.129(1)(h)(2), Florida Statutes.

    
    

20. Petitioner has established by clear and convincing evidence that Respondent was guilty of failing to perform in a reasonably timely manner, sufficient to constitute abandonment of the job in that the contract signed on June 16, 1986 required the job to be completed within sixty days. The job was not completed until March of 1987, and for an additional cost of $8,000.00. The job was not completed by Respondent, but was completed by Mrs. Thames and/or her

    family hiring other subcontractors to finish Respondent's work. The assurances made by Respondent to Mrs. Thames were not made in good faith, but only to buy time and keep himself out of trouble. Sections 489.129(1)(m) and 489.129 (1)(k)

    
    

21. Petitioner has established by clear and convincing evidence that Respondent is guilty of discipline by a local government in that on September 10, 1987, Respondent's competency card in Panama City Beach, Florida, was revoked unanimously by the Board for numerous violations of local code during the Thames job. Section 489.129 (1)(i)

    
    

22. In its proposed recommended order the agency has recommended an administrative fine of $1,000.00. Such an amount appears reasonable under the facts and circumstances of this case and is consistent with Rule 21E-17.001(10),

(12) and (16), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That an administrative fine in the amount of $1,000.00 be levied against Respondent.

DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

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 9th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489

The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Tectonics Section

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mark O. Holland Route A, Box 366

Youngstown, Florida 32466

Fred Seely Executive Director

Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32201

Lawrence A. Gonzalez, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-002489

Orders for Case No: 88-002489