STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 88-5225

)

MARK V. ANSLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 8, 1989, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Mark A. Sieron

Attorney at Law

1329-A Kingsley Avenue Orange Park, Florida 32073

For Respondent: Mark V. Ansley, Pro Se

7034 Luke Street

Jacksonville, Florida 32210 ISSUE

The issue is whether the license as a building contractor issued to Respondent, Mark V. Ansley, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

BACKGROUND AND PROCEDURAL MATTERS

The Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, (DPR) presented the testimony of Errol D. Jones, Joan Surrency, Dorothy V. Moss, and James E. Denison. Petitioner's Exhibits 1-12 were admitted in evidence. The Respondent presented his own testimony.

The parties agreed that proposed findings of fact and conclusions of law were to be filed within 20 days after the filing of the transcript. The transcript was filed on March 20, 1989. Neither party timely filed proposed findings of fact and conclusions of law. Hence none have been considered.

FINDINGS OF FACT

1. Mr. Ansley is the holder of license No. CB C033338 as a building contractor in the State of Florida, having been issued that license in 1985. At all times relevant hereto, Mr. Ansley was so licensed.

   
   

2. In 1987, Fred Fox Enterprises, a private consulting firm in economic development and housing rehabilitation, worked with the Town of Baldwin to write a Community Development Block Grant to upgrade housing in targeted areas of the town. The Town of Baldwin received the grant and Fred Fox Enterprises administered the grant.

   
   

3. As part of the grant, arrangements were made to build a new home for Michael and Karen Turner. The Turners qualified for a $25,000 grant and the Turners augmented the grant with their own funds in the amount of $2,750.

   
   

4. Fred Fox Enterprises solicited contractors to participate in the grant activities. Mr. Ansley was one of the contractors who agreed to participate.

   
   

5. The Turners selected a floor plan and Mr. Ansley's bid for the job was acceptable. A contract was signed on June 29, 1987. Ansley was to receive

   $27,750 in draws from a special escrow account in the name of the homeowner and the contractor.

   
   

6. Ansley pulled the permits and began construction pursuant to a Notice to Proceed dated August 31, 1987. Ansley had 75 days to complete construction.

   
   

7. Ansley did the foundation and poured the slab. He was paid his first draw of $3,750 for the slab on September 24, 1987.

   
   

8. By early October, the exterior walls were constructed up to the lintel, however no trusses and no roof were in place. No further work was done on the house.

   
   

9. Ansley's next draw would have been at dry-in, but the construction never reached that stage.

   
   

10. Representatives of Fred Fox Enterprises and of the Town of Baldwin tried to contact Ansley about the work stoppage. Letters were sent to Ansley by the Town of Baldwin on September 30, October 15, and October 30, 1987, reminding Ansley that by contract he had 75 days to complete the project, that his time was running out, that liquidated damages of $50 per day were called for under the contract, and that the deadline for completion was November 14, 1987.

    
    

11. On November 10, 1987, the Town of Baldwin wrote to Ansley advising that no work had been done since October 26, 1987, in violation of the contract, that the structure was only 20% complete in violation of the contract, that a Claim of Lien had been placed against the property by a materialman, and that any further payments would cease until the lien was satisfied.

    
    

12. Ansley never responded to that letter.

    
    

13. On November 27, 1987, the Town of Baldwin officially informed Ansley that his contract was terminated. The letter also reminded Ansley that he was still responsible for payment for materials, labor and/or supplies purchased for work on the Turner's house prior to termination of the contract.

14. On December 3, 1987, another Claim of Lien was filed by Southern Atlantic Concrete in the amount of $3,386.59. The previous lien was by Holmes Lumber Company in the amount of $194.63.

    
    

15. At various times Ansley contacted representatives of Fred Fox Enterprises and the Town of Baldwin and told them that the liens were in error or that he would take care of them in the future. Ansley acknowledged that he was having financial difficulties.

    
    

16. Another contractor was retained to complete the house for approximately $1,000 more than the Ansley/Turner contract price. Also, the Turner's were placed in temporary housing at the cost of the Town of Baldwin and the grant.

    
    

17. Ansley never paid the liens. Finally, to protect its reputation, Fred Fox Enterprises paid the liens out of its own funds, not from the grant money. Including interest, Fred Fox Enterprises paid $3,873,15 to cover the liens.

    
    

18. Ansley acknowledges that he was in a financial crunch. He intended to finish the house and not to abandon it, but he was financially unable to do so. He says he had $5,500 of his own money tied up in the house, in addition to the liens. He simply did not have the funds to complete the house up to the second draw so he could use the draw funds to pay for the materials and labor.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Mr. Ansley is charged with the following violations of Section 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 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.

    * * *

    1. Failure in any material respect to comply with the provisions of this act.

    2. 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.

    
    

    Ansley is further charged with violating Section 489.105(4) by failing to "supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit; ..."

    
    

21. The facts are quite clear that Ansley has committed each and every one of these violations. He failed to perform in a reasonably timely manner. He abandoned the job. He exhibited financial mismanagement. He allowed liens to be placed against the property of the Turners. He never paid those liens. He failed to supervise, manage or control the activities on this job in regard to the finances. Finally, Ansley is guilty of incompetency and misconduct in his conduct toward the Turner job and his contract for that job.

    
    

22. Ansley's course of conduct in blatant disregard for his contractual obligations and his failure to pay the liens resulted in monetary losses to the Turner's, the Town of Baldwin and Fred Fox Enterprises in excess of $5,000. These factors are all considered as aggravating factors in considering the appropriate penalty. No mitigating factors have been offered or considered.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction

Industry Licensing Board, enter a Final Order and therein:

1. Find Mark V. Ansley guilty of violating Sections 489.105(4) and 489.129(1)(h), (j), (k), and (m), Florida Statutes, as charged in the Administrative Complaint.

   
   

2. Order Mark V. Ansley to pay an administrative fine of $5,000.

   
   

3. Suspend building contractor's license No. CB-C033338 issued to Mark V. Ansley for a period of one (1) year.

DONE and ENTERED this 17th day of April, 1989, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1989.

COPIES FURNISHED:

Mark A. Sieron Attorney at Law

1329-A Kingsley Avenue Orange Park, Florida 32073

Mark V. Ansley 7034 Luke Street

Jacksonville, Florida 32210

Harper Fields General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 88-005225

Orders for Case No: 88-005225