STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD )

)

Petitioner, )

)

vs. ) CASE NO. 90-0493

)

)

MILTON W. OLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on April 17, 1990 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Senior Attorney

Department of Professional Regulation

Northwood Centre, Suite 60

130 North Monroe Street Tallahassee, FL 32399-0750

For Respondent: no appearance

STATEMENT OF THE ISSUE

Whether Respondent operated as a contractor under the name of Olen Homes, in violation of Section 489.129(1)(g), Florida Statutes by failing to qualify as a contractor under said name.

Whether Respondent failed to pay a subcontractor for services performed in violation of Section 489.129(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

Respondent is a certified residential contractor licensed by Petitioner.

He is charged by Petitioner in an administrative complaint, dated July 18, 1989, with a three count violation of Section 489.129, Florida Statutes. The Respondent requested a formal administrative hearing by filing an Election of Rights on August 31, 1989. This matter was referred to the Division of Administrative Hearings for formal hearing on January 2, 1990. The Initial Order was sent to the parties on February 1, 1990 and the Notice of Hearing was

mailed on February 13, 1990. Mr. Steven Michael LaBret filed his notice of appearance as attorney of record by letter dated April 6, 1990. A copy of the Division's file was forwarded to his office on April 11, 1990. This proceeding followed.

At hearing, the Petitioner presented the testimony of one witness and six evidentiary exhibits. The despondent did not appear in person or through counsel and presented no evidence. Proposed findings of fact submitted by the Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from the Respondent at the time of the preparation of this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapter 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. At all times material to the Administrative Complaint, Respondent Milton W. Olen was a certified residential contractor in the State of Florida, holding license number CR C024221.

   
   

3. At all times material hereto, Respondent's licensure was registered with the Construction Industry Licensing Board, as an individual, and the Respondent did not qualify Olen Homes.

   
   

4. On or about November 9, 1987, the Respondent's company, Olen Homes, contacted Donald L. Grider of "A Final Touch Cleaning Service" to provide the final cleanup on a home the Respondent was constructing at 1255 Kelso Boulevard, Orange County, Florida.

   
   

5. A Final Touch Cleaning Service completed the cleanup on November 30, 1987, and an invoice was mailed to Olen Homes in the amount of $1,014.00, on December 9, 1987.

   
   

6. Donald L. Grider mailed a second copy of the invoice to Olen Homes on January 22, 1988. On February 19, 1988, Respondent acknowledged the debt, but stated he was having financial problems. He promised to pay off his bills.

   
   

7. Mr. Grider demanded full payment for the job by letter dated August 8, 1988.

   
   

8. Mr. Grider received a document from the Respondent on or about August 15, 1988, which Respondent claimed relieved him of responsibility for payment of Mr. Grider's bill. On September 19, 1988, Mr. Grider forwarded documents to the Respondent which indicated the Respondent was responsible for payment.

   
   

9. Mr. Grider has not been paid any sum by the Respondent as of April 17, 1990, the date of the formal hearing in this matter.

   
   

10. Respondent previously received a letter of guidance from the Board on November 19, 1988.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. The Petitioner is required to show by clear and convincing evidence that the Respondent violated section 489.129 (1)(g) and (m), Florida Statutes. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Section 489.129(1), Florida Statutes, provides that: The Board may revoke, suspend, or deny the issuance or renewal of the certificate of registration of a contractor. . . if the contractor . . . is found guilty of any of the following acts:

    
    

    (g) Acting in the capacity of a contractor under any certificate or registration issued hereunder, except in the name of the certificate holder or registrant as set forth on the issued certificate of registration, or in accordance as set forth in the application for the certificate or registration, or as later changed as provided in this act.

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

    
    

14. Respondent violated Section 489.129(1)(g), Florida Statutes, by contracting and acting in the capacity of a contractor, under the name of Olen Homes when his license was registered with the Florida Construction Industry Licensing Board as an individual.

    
    

15. Respondent violated Section 489.129(1)(m), by failing to pay a subcontractor for services the Respondent contracted for.

    
    

16. Rule 21-E-17.001, Florida Administrative Code, provides in part:

    
    

    The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter:

    (1) 489.129(1)(g), 489.119: Failure to

    Qualify a firm and/or acting under a name not on license. First violation, letter of guidance; repeat violation $250 to $750 fine. 489.129(1)(m), gross negligence incompetence, and/or misconduct, fraud or deceit.

    1. Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1000 to $1500 fine, and 3 to 9 month suspension.

       Causing monetary or other harm to

       licensee's customer, or physical harm to any

       person. First violation $500 to $1500 fine; repeat violation, $1000 to $5000 fine, and suspension or revocation.

       
       

17. Rule 21E-17.002 of the Florida Administrative Code provides for aggravating and mitigating circumstances which includes:

    
    

    1. Any efforts at rehabilitation.

    2. Any other mitigating or aggravating circumstances.

    
    

18. Rule 21E-17.003 of the Florida Administrative Code provides:

    
    

    (1) As used in this rule, a repeat violation is any violation 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 prior case; and said definition is to apply (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violation in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

    
    

19. The Respondent's actions in this case represent repeat violations, and the Respondent has made no payment at all to the injured subcontractor.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Respondent be found guilty of contracting or acting in the capacity of a contractor, under the name of Olen Homes when his license was registered with the Construction Industry Licensing Board as an individual. Section 489.129(1)(9), Florida Statutes.

   
   

2. It is recommended that an administrative fine of $250 be imposed.

   
   

3. Respondent be found guilty of misconduct by failing to pay a subcontractor for services rendered under a contract with Respondent. Section 489.129(1)(m), Florida Statutes.

   
   

4. It is recommended that an administrative fine of $1500 be imposed.

DONE AND RECOMMENDED this 14th day of May, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 14th day of May, 1990.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

Adopted in full.

Respondent did not file proposed findings.

COPIES FURNISHED:

G. W. Harrell, Esquire Kenneth D. Easley

Department of Professional General Counsel

Regulation Department of Professional

Northwood Centre Regulation

1940 North Monroe Street Northwood Centre

Suite 60 1940 North Monroe Street

Tallahassee, FL 32399-0792 Suite 60

Tallahassee, FL 32399-0792

Milton W. Olen, Jr.

250 International Parkway, NO. 160 Lake Mary, FL 32746

Steven Michael Labret, Esquire

501 North Magnolia Avenue Suite A

Orlando, FL 32801

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202

Docket for Case No: 90-000493

Orders for Case No: 90-000493