STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0187

)

MICHAEL RADA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on June 15, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Elizabeth Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: Michael Rada, pro se

4576 Northwest 16th Terrace Tamarac Lakes, Florida 33304

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses set forth in the administrative complaint filed in this case and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated July 26, 1988, Petitioner charged that Respondent did the following;

1. Respondent proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision, in violation of Sections 489.129(1)(d), (m), (j); 489.119; 489.105(4), Florida Statutes.

2. The work on the job, at issue, failed to fully comply with applicable local codes, in violation of Section 489.129(d), (m), Florida Statutes.

   
   

3. Respondent failed to perform in a reasonably timely manner, and or abandoned the job, at issue, in violation of Section 489.129(1)(m), (k), Florida Statutes.

   
   

4. Respondent exhibited financial mismanagement, misconduct, or diversion, in violation of Section 489.129(1)(h), (m), Florida Statutes.

   
   

5. Respondent committed gross negligence, incompetence, or misconduct with the job, at issue, in violation of Section 489.129(1)(h), (m), Florida Statutes.

At the hearing, Petitioner called five witnesses and offered five exhibits which were admitted into evidence. Respondent testified on his own behalf.

A transcript of the hearing was ordered, and the parties were granted leave until July 20, 1989, to file proposed findings of fact. Petitioner filed proposed findings of fact on July 18, 1989, but Respondent did not so file. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Michael Rada was a certified general contractor, the qualifying agent for A-Team Remodeling and Design, Inc. and held license number CG C026705 of the Florida Construction Industry Licensing Board.

   
   

2. On or around December 10, 1987, Mrs. Katherine Hill contracted with A- Team Plumbing, Inc. to renovate a bathroom in her home. A-Team Plumbing, Inc. is an entity separate and distinct from A-Team Remodeling and Design, Inc. and Mr. Rada was not associated with A-Team Plumbing, Inc.

   
   

3. Following A-Team Plumbing, Inc.'s failure to complete the job, Mr. Rada, on behalf of A-Team Remodeling and Design, Inc. agreed with Mrs. Hill to re-do the job. Mr. Rada, as qualifying agent for A-Team Remodeling and Design, Inc., applied to the City of Plantation for the building permit on January 11, 1988, and it was issued on February 13, 1988. At the instruction of the City of Plantation, the job was gutted, and Mr. Rada began his work sometime in March, 1988.

   
   

4. The job should have been completed in two to three weeks, but was not completed until May 6, 1988. During construction, Mr. Rada's work was erratic and at times dilatory. On several occasions, he made appointments to work on the job, necessitating Mrs. Hill's absence from her employment, and, then, he would not keep the appointments or even contact Mrs. Hill about his failure to report.

5. In addition to having failed to complete the job in a timely manner, the proof demonstrated that when completed the work failed to conform to that standard existent in the community for similar work. Even after the final inspection, a hole remained in an adjoining closet wall, the base boards were not flush with the walls and "gop" hung down in one corner of the room. Mrs. Hill refused to pay for the job because of her dissatisfaction.

   
   

6. As general contractor, Mr. Rada assumed responsibility for the completion of the job at the time of his initial visit to Mrs. Hill and his application for the building permit. By failing to complete the job in a workmanlike and timely manner, Mr. Rada's performance was incompetent and exemplified misconduct in the practice of contracting.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

8. Section 489.129(1), Florida Statutes, authorizes the Florida Construction Industry Licensing Board to take disciplinary action against a contractor when the contractor is found guilty of various specified acts, including the following:

   
   

   (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof.

   * * *

   (h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.

   * * *

   1. Failing in any material respect to comply with the provisions of this part.

      * * *

   2. Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A

   project is considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.

   * * *

   (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

   
   

9. Section 489.105(4), Florida Statutes defines primary qualifying agent as the person

   
   

   who possesses the requisite skill, knowledge, and experience, and has the

   responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

   
   

10. Section 489.119, Florida Statutes provides the procedure for application to do contracting work through a qualifying agent and the procedure for application to do contracting work as a qualifying agent

    
    

11. Under existing law, the burden is on Petitioner to demonstrate by clear and convincing evidence that Respondent violated the above statutory provisions. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Here, Petitioner failed to sustain its burden as to Section 448.129(1)(d), (h) and (k), Florida Statutes. However, Petitioner sustained its burden as to Section 489.129 (j) and (m), Florida Statutes.

    
    

12. In arriving at an appropriate penalty in the instant case, consideration has been given to the disciplinary guidelines set forth in Rule 21E-17, Florida Administrative Code and that the complaint, at issue, was Respondent's first offense. Based on a balancing of such guidelines, an appropriate penalty in the instant case is found to be the imposition of an administrative fine of $750. Rule 21E-17.002, Florida Administrative Code authorizes consideration of aggravating and mitigating factors; however, no such factors were presented at the formal hearing.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on Respondent an

administrative fine of $750.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of July 1989.

JANE C. HAYMAN

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 28th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-187

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Subordinate to the result reached.

3. Addressed in paragraph 2.

4. Subordinate to the result reached.

5. Subordinate to the result reached.

6. Subordinate to the result reached 2.

7. Subordinate to the result reached.

8. In part, subordinate to the result reached; in part, addressed in paragraph 3.

9. Addressed in paragraph 3.

10. Subordinate to the result reached.

11. Addressed in paragraph 4.

12. Addressed in paragraph 5.

13. Addressed in paragraphs 3 and 4.

14. In part, addressed in paragraphs 4 and 5; in part, subordinate to the result; in part, not supported by competent and substantial evidence.

15. In part, subordinate to the result reached; in part, addressed in paragraphs 4 and 5.

16. In part, subordinate to the result reached; in part addressed in paragraph 2.

17. Subordinate to the result reached.

    
    

    COPIES FURNISHED:

    
    

    Elizabeth Alsobrook, Esquire Department of Professional

    Regulation Suite 60

    1940 North Monroe Street Tallahassee, Florida 32399-0729

    
    

    Michael Rada, pro se

    4576 Northwest 16th Terrace Tamarac Lakes, Florida 33304

    
    

    Fred Seely Executive Director

    Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201

    
    

    Kenneth E. Easley, Esquire Department of Professional

    Regulation

    1940 North Monroe Street Suite 60

    Tallahassee, Florida 32399-0792

    =================================================================

    AGENCY FINAL ORDER

    =================================================================

    
    

    STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

    
    

    DEPARTMENT OF PROFESSIONAL REGULATION,

    
    

    Petitioner,

    
    

    vs CASE NO.: 94868

    DOAH CASE NO.: 89-0187

    MICHAEL RADA,

    LICENSE NO.: CG C026705,

    
    

    Respondent.

    /

    
    

    FINAL ORDER

    
    

    THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on September 14, 1989, in Key West, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Ray Shope. The Respondent appeared pro se at the Board meeting.

    
    

    Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, and there being no exceptions filed, the Board makes the following:

    
    

    FINDINGS OF FACT

    
    

    1. The hearing officer's findings of fact are hereby approved and adopted in toto.

       
       

    2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law are hereby rejected as unsupported by the facts found.

   
   

3. The penalty recommended by the Hearing Officer is hereby rejected.

   
   

4. There is competent, substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

The Administrative Complaint issued in this cause shall be and hereby is DISMISSED.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 6th day of November, 1989.

MIKE BLANKENSHIP, CHAIRMAN

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

Michael Rada

4576 N.W. 16th Terrace Tamarac Lakes, Florida 33304

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 29th day of November, 1989.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

BOARD CLERK

Clerk Date: November 29, 1989

Docket for Case No: 89-000187

Orders for Case No: 89-000187