STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1417

STEVEN W. MARLOW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on June 1, 1990, in West Palm Beach, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: G.W. Harrell

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated October 19, 1989; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on October 19, 1989, when the Department of Professional Regulation, Construction Industry Licensing Board (Department) filed an administrative complaint against the Respondent, Steven W. Marlow. That complaint alleged Respondent had violated Sections 489.129(1)(g) and (m), Florida Statutes. More specifically, the Department alleged that the Respondent had failed to qualify his contracting firm (doing business in a name not on his license) and had been guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Respondent executed an election of rights which requested a formal hearing of the allegations. The case was forwarded to the Division of Administrative Hearings for formal proceedings on March 2, 1990.

At the hearing, the Department presented the testimony of the following witnesses: Delores Cappella, a home owner with whom the Respondent had contracted for construction services; and Lynn McNealy, a Palm Beach County Building Inspector. The Department's exhibits numbered 1 through 7 were admitted into evidence. The Respondent did not appear and evidence was not presented on his behalf.

After the hearing, the transcript of the proceedings was filed with the Division of Administrative Hearings on June 18, 1990. The Department filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of `fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department and the Construction Industry Licensing Board are authorized to regulate and discipline licensees pursuant to Chapters 489-and 455, Florida Statutes.

   
   

2. At all times material to the allegations in this case, the Respondent has been licensed as a certified general contractor, license number CG CO43229. That license was first issued in June of 1988, and will remain active and in effect for the 1989-92 licensing period.

   
   

3. The license described in paragraph 2 was issued to the Respondent in his individual capacity. Respondent has not sought, and therefore has not obtained, a license to qualify a business entity as a general contractor. More specifically, Respondent did not obtain licensure for an entity known as Marlow Engineers and General Contractors. Further, Respondent is not registered as a primary or secondary contractor for that entity.

   
   

4. On or about September 15, 1988, the Respondent, doing business as Marlow Engineers and General Contractors, entered into a contract with Joseph and Delores Cappella, owners of the home located at 7100 Thompson Road, Lantana, Florida. The purpose of the contract was to secure a porch addition to the structure for a total purchase price of $8106.00. The Respondent was to pour a foundation, install the porch and roof, and completely screen the room (including doors).

   
   

5. The contract between these parties provided, in part:

   
   

   3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than Four work weeks from the time the permit is obtained. Permit will be applied for within five working days of the signing of the contract or when the deposit is received

   which ever is later. Subject to adjustments of this contract Time as provided in the Contract Document.

   
   

6. The Respondent obtained the permit to begin the Cappella's porch on September 30, 1988. Within a few days, the Respondent started the slab work for the porch foundation. That work failed inspection and had to be corrected.

7. Respondent worked sporadically on the porch project until October 11, 1988, when he stopped work. At that time only the concrete foundation with the support posts were in place. Respondent did not return to the work site until after October 24, 1988.

   
   

8. From October 27, 1988 through Christmas of that year, the Respondent's work on the porch was infrequent and of a below quality standard. The Respondent failed the initial inspection on each aspect of the construction of the porch. Consequently, he was directed to correct all work before approvals could be sought. The Cappellas were required to hire an electrician to complete the electrical work for the porch, a handiman to correct the plaster/paint deficiencies, and a screen company to reinstall the screening correctly.

   Because of the foregoing, the Cappellas did not remit the balance owed to Respondent under the contract terms. As of January 15, 1989, the work on the porch had not been successfully completed by Respondent. Mrs. Cappella has not seen Respondent since that date.

   
   

9. A contractor is responsible for the quality of the work undertaken for the permits he pulls. Inspections are performed by the permitting authority to assure that the work conforms to building code standards. Based upon the inspections performed for the Cappella porch, the Respondent failed the following inspections: footing inspection, the roofing (ultimately passed after third inspection), the roof metal (where the porch roof was connected to the existing structure), and the porch framing . The Cappella porch did not pass final inspection until January 27, 1989. The number of inspection failures was abnormally large for contractors performing similar work in Palm Beach County. Respondent's performance on the Cappella contract fell below the community standard both as to the time for completion of the work and the quality of work performed.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 489.129(1), Florida Statutes, provides, in pertinent part:

    
    

    The Board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000, place a contractor on probation require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under S. 489.1195 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 certificateholder or registrant as set forth

    on the issued certificate or registration, or in accordance with the personnel of the certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this part.

    * * *

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

    
    

12. Rule 21E-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.

    * * *

    (19) 489.129(10)(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, $256 to $750; repeat violation, $1000 to $1500 fine and 3 to 9 month suspension.

    2. 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.

    
    

13. The Department has established that the Respondent performed contracting services under the name Marlow Engineers and General Contractors. That name had not been registered or certified by the Board for use. Consequently, the Department has established Respondent violated Section 489.129(1)(g), Florida Statutes.

    
    

14. The Department has further established that the Respondent was grossly negligent or incompetent in the performance of the work for the Cappella porch. The unrefuted evidence established that Respondent failed to timely complete the work, failed to perform the work in a workmanlike manner, and failed to timely correct the deficiencies in the work he completed. Consequently, the Department has established the Respondent is guilty of violating Section 489.129(1)(m), Florida Statutes. Further, such violation resulted in injury to the Cappellas since they were deprived of the use of the porch for months, were required to hire other persons to complete work, and were required to act as their own contractor to assure the project passed its final inspection.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating Sections 489.129(1)(g) and (m), Florida Statutes, and imposing an administrative fine in the amount of $750.00 together with a letter of guidance.

DONE and ENTERED this 18th day of July, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 18th day of July, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-1417

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 7 are accepted.

2. Paragraph 8 is rejected as contrary to the weight of the evidence. But see finding paragraph 8.

3. Paragraph 9 is accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

None submitted.

COPIES FURNISHED:

G. W. Harrell Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Steven W. Marlow

580 South Dixie Highway Lantana, Florida 33462

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 90-001417

Orders for Case No: 90-001417