DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
vs. ) CASE NO. 88-2746
Respondent. )
Pursuant to notice, a formal hearing was held in this case on September 28, 1988, in Jacksonville, Florida, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.
For Respondent: Mark V. Ansley, pro se
This proceeding was initiated on March 31, 1988, when Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, issued an Administrative Complaint charging Respondent, Mark V. Ansley, with certain violations of law. By his Election of Rights, Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.
At the hearing, Petitioner presented the testimony of Mr. Ray C. Kersey, Ms. Vivian Sapp, and Mr. Robert H. Adams; and offered 17 exhibits which were accepted into evidence. Respondent testified on his own behalf.
Two days prior to the hearing, Petitioner filed a Motion for Leave to Amend the Administrative Complaint and an Amended Administrative Complaint. At the beginning of the hearing, the Motion for Leave to Amend was granted.
At the conclusion of the hearing, the parties were given the opportunity to file Proposed Recommended Orders. On October 28, 1988, Petitioner filed a Motion for Extension of Time to File Petitioner's Proposed Recommended Order, which is hereby granted and filed a Proposed Recommended Order containing
proposed findings of fact. The proposed findings of fact are addressed in the Appendix which is attached to this Order. Respondent did not file a posthearing statement.
Whether Respondent should be disciplined for violating Sections 489.129(1)(h) and (m), Florida Statutes?
At all times relevant, Respondent was licensed as a certified building contractor in the State of Florida, holding license number CB C033338, and doing business under the name of Mark V. Ansley Building Contractors.
On April 17, 1987, Respondent entered into a Construction Agreement with Mr. Kersey. The Agreement called for Respondent to build a house containing two bedrooms, one and one- half baths and a one-car garage in exchange for $31,860.
Under the Agreement, construction was to begin on April 21, 1988. However, due to a problem with the lot on which the house was going to be built, there were delays.
Mr. Kersey then decided to build the house on a lot across the street from the original lot.
The lot was cleared on May 1, 1987, by Mr. Morris Snell.
The septic tank permit was issued on June 17, 1987. The construction permit was issued on June 22, 1987.
Construction of the residence began a week later and the slab was poured the second week of July, 1987.
After the slab was poured, Mr. Kersey determined that the foundation was approximately 890 square feet instead of the 944 contracted for. After some negotiations between Mr. Kersey and Respondent, they agreed that Respondent would add a Florida room to make up the difference in square footage. The foundation for the Florida room was built four inches lower than the main house.
There were problems with the roof trusses and with the framing which were corrected by Respondent.
The company which manufactured the roof trusses sent the wrong trusses to the house. Mr. Kersey, who was present at the house when the trusses were being installed, noticed they were the wrong ones and stopped work on the house. After Respondent was informed, he notified the truss company and the correct trusses were delivered approximately ten days later and installed.
The initial framing of the house was deficient and did not pass inspection. Respondent fired the persons who had done the framing, fixed the problems, and the framing passed inspection.
Also, the persons framing the house left out a closet in one room of the house, but upon being informed, this was corrected.
By this time, Mr. Kersey had made two payments to Respondent pursuant to their agreement. The first payment was for $3,100 and the second for $4,000.
After the house was framed, Respondent expected to be out of town for two to three weeks. Respondent told Mr. Kersey that he was having problems collecting money from other jobs and that he would be unable to meet the construction schedule unless he had the money to pay for the necessary supplies right on the spot rather than waiting until Mr. Kersey returned. Mr. Kersey gave Respondent $15,000 in advance to allow Respondent to continue working on the house while he was gone.
At this same time, July 18, 1987, Respondent and Mr. Kersey agreed that the house should be completed by September 15, 1988.
Mr. Kersey returned from his trip in about 10 days and noticed that nothing had been done on the house. Mr. Kersey was unable to contact Respondent for two weeks, even though he wrote Respondent a letter and left messages with Respondent's secretary and on a telephone answering machine.
During this period of time, Mr. Kersey hired an attorney.
On August 1, 1987, Mr. Kersey finally spoke with Respondent about the lack of progress on the house. The Respondent told Mr. Kersey that it had rained almost constantly for 10 days and needed materials could not be delivered to the house.
Respondent continued to do work on the house.
Respondent contracted with a company to deliver and install windows. The window company in turn hired a subcontractor to install the windows. The subcontractor installed the windows improperly and eight of the sixteen windows had to be replaced by someone other than Respondent.
Mr. Kersey agreed with Respondent that he would pay $1300, in addition to the contract price of the house, for the installation of a septic tank and drain field at the original location for the house. Respondent obtained the septic tank permit and arranged to have Mr. Carver of Carver's Septic Tank install the septic tank at the new location. Mr. Carver's estimate for the job was $1,810 and he agreed to do the job on the assurance by Mr. Kersey that he would pay for the job. Mr. Carver placed the septic tank and drain field at a location different from that which had been requested by Mr. Kersey and different from that shown on the survey map on file with the permit application at the Department of Health and Rehabilitative Services. In preparing the ground for the septic tank, Mr. Carver dug up the roots of an existing oak tree to a depth of from three to six feet around three-fourths of the tree's circumference. Also, the septic tank was located in close proximity to a three- inch free-flowing artesian well.
The Department of Health and Rehabilitative Services initially gave its approval for the septic tank to be covered up. But after Mr. Kersey met with the Department's staff, the department disapproved the septic tank because it was located too close to the well.
Mr. Carver did not finish work on the septic tank because he was not paid for the work he had done.
In order to obtain approval for the septic tank, Mr. Kersey had to "abandon" the artesian well. This was accomplished by pouring 12 sacks of concrete into the well and pipe to seal it off. This job cost Mr. Kersey
$840.00.
Mr. Kersey also hired another company to complete the septic tank and drain field, and had to pay $700 to move the drain field.
Sometime in August and September, Mr. Kersey began receiving information that some of the suppliers and subcontractors for the house had not been paid by Respondent and that liens would be placed on the property if they were not paid. Eventually, three companies filed claims of lien against the property.
Sometime in September or October, Mr. Kersey posted signs on the house which stated that no further work was to be done on the house.
When Respondent contacted Mr. Kersey, he was referred to Mr. Kersey's attorney. Respondent indicated to the attorney that he wanted to complete the job, and he was allowed to continue working on the job.
During the next two weeks Respondent had the drywall and cabinets installed, put in the driveway, and painted. However, at a subsequent meeting with Mr. Kersey and his attorney, Mr. Kersey was not satisfied with the way the house was being built and stated he did not want Respondent on the job any more. Respondent did no more work on the house.
On November 13, 1987, Mr. Kersey and Respondent met for the purpose of determining which subcontractors and suppliers had not been paid. At that time Respondent indicated that five subcontractors and suppliers had not been paid and that they were owed a total of $12,199. However, there were other subcontractors who had not been paid.
In May, 1988, Mr. Kersey hired another contractor to complete the house. Mr. Kersey initially agreed to pay $9,400 for the work of this contractor, but ended up paying $14,000 because the contractor had to do work which was not included in the initial contract. Part of the work done by this contractor consisted of fixing or replacing a six-foot sliding glass door, three interior doors, and one exterior door which had been installed under Respondent's supervision.
As mentioned in Findings of Fact 26, supra, three liens were placed on the property by materials suppliers. The three liens were perfected by Davis Windows, the company with which Respondent contracted for the purchase and installation of the windows for $1,888.22; Holmes Lumber Company, a company which provided building materials and supplies, for $4,032.08; and Gator Door for $1,152.93. Mr. Kersey is contesting the lien placed by Davis Windows. He has paid the amount due Holmes Lumber. He has not paid Gator Door.
In addition to the companies which filed liens, the company that installed the cabinets was not paid at the time the cabinets were installed. Respondent paid for the cabinets on April 6, 1988. Also, Respondent paid Davis Windows $1,000, in March, 1988 and paid Gator Door $500 sometime in 1988. Finally, Respondent sent $1,500 to Holmes Lumber, ostensibly for Mr. Kersey's account, but the $1,500 was credited to another of Respondent's accounts which was in arrears.
Respondent has entered into an agreement with Mr. Kersey to repay the amounts he may be owed due to Respondent's actions.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57 and 120.60, Florida Statutes.
Section 489.129, Florida Statutes, provides that Petitioner may revoke or suspend the registration of a contractor and impose an administrative fine not to exceed $5,000, or reprimand or censure the contractor, if the contractor is found guilty of committing any of the acts enumerated in the section.
The Amended Administrative Complaint charges Respondent with violating the following paragraphs of Section 489.129(1), Florida Statutes:
(h) Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services, and the contractor has not had the liens removed from the property, by payment or by bond, within 30 days after the date of such liens.
The contractor has abandoned a customer's job and the percentage of completion is less than the percentage 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.
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.
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross
negligence, incompetency, or misconduct in the practice of contracting.
This proceeding is penal in nature and may lead to the revocation or suspension of Respondent's license. Therefore, Petitioner has the burden of proving the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The evidence in this case is clear that Respondent violated paragraph (h), supra. Respondent failed to pay for supplies which resulted in valid liens being recorded.
Also, the evidence establishes that Respondent violated paragraph (m), supra, by committing misconduct or by being incompetent in the practice of contracting. Numerous items for which Respondent was responsible had to be removed and replaced by a subsequent contractor, and Mr. Kersey ended up paying more for the house than he originally contracted for with Respondent. Finally, Respondent is also guilty of violating paragraph (m) by committing deceit in not disclosing to Mr. Kersey all the subcontractors or suppliers who had not been paid.
The finding of misconduct or incompetence does not include the activities related to the septic tank because the evidence presented is insufficient to establish clearly and convincingly that this was the Respondent's responsibility.
Additionally, the opinions of Mr. Adams, Petitioner's expert witness, on the issue of whether Respondent committed gross negligence, misconduct or incompetence are rejected because they are based on a totality of assumed facts, some of which were not supported by competent evidence presented at the hearing.
Chapter 21E-17, Florida Administrative Code, sets forth guidelines for the imposition of penalties by Respondent. Applying these guidelines, the following penalties should be imposed on Respondent. For violating Section 489.129(1)(b), Florida Statutes, a fine of $1,000 should be imposed. See Rule 21E-17.001(10), Florida Administrative Code. For violating Section 489.129(1)(m), Florida Statutes, a fine of $750. See Rule 21E-17.001(19)(b), Florida Administrative Code.
In recommending these penalties, I have considered the aggravating and mitigating circumstances present in this case. While Respondent's actions have caused Mr. Kersey to suffer a monetary loss, Respondent has entered into an agreement to repay Mr. Kersey. This is Respondent's first offense and Respondent appears to truly desire to make Mr. Kersey whole. See Rule 21E- 17.002, Florida Administrative Code.
Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,750 fine on
Respondent.
DONE and ORDERED this 6th day of December, 1988, in Tallahassee, Florida.
JOSE A. DIEZ-ARGUELLES
Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2746
The Petitioner submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ."
15, 16. Accepted. RO20.
17, 18. Accepted as modified in RO 21-25. Second and third sentences of 17 are rejected as not supported by competent evidence. See also discussion of this issue in Conclusions of Law section of this RO.
Mark V. Ansley 7004 Luke Street
Bruce D. Lamb, Esquire General Counsel
