STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-1637

) 90-1889

WILMON RAY STEVENSON, ) 90-1890

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave held a public hearing in the above- captioned case on June 6, 1990 in Inverness, Florida.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: Clifford M. Travis, Esquire

109 Apopka Avenue Inverness, Florida 33650

(for the hearing)

Fred A. Ohlinger, Esquire Post Office Box 1007

Beverly Hills, Florida 32665

(subsequent to hearing) STATEMENT OF THE ISSUE

Whether Respondent's license as a registered building contractor in the state of Florida should be revoked, suspended or otherwise disciplined under these facts and circumstances of these cases.

PRELIMINARY STATEMENT

By a three-count Administrative Complaint in Case No. 90-1637 filed with the Division of Administrative Hearings on March 15, 1990, a two-count Administrative Complaint in Case No. 90-1889 filed with the Division of Administrative Hearings on March 28, 1990 and a three-count Administrative Complaint in Case No. 90-1890 filed with the Division of Administrative Hearings on March 28, 1990, the Petitioner seeks to revoke, suspend or otherwise

discipline Respondent's license as a registered building contractor in the state of Florida. As grounds, therefore, it is alleged:

In Case No. 90-1637, that Respondent (a) violated Section 489.129(1)(d), Florida Statutes, by violating local codes, (b) violated Section 489.129(1)(h), Florida Statutes by financial misconduct in the practice of contracting and,

1. violated Section 489.129(1)(k), Florida Statutes by abandoning a job without notice or just cause;

   
   

   In Case No. 90-1889 that Respondent (a) violated Section 489.105(4) and 489.129(1)(j), Florida Statutes, by failing to honor a warranty and, (b) violated Section 489.129(1)(m), Florida Statutes by misconduct in the practice of contracting and;

   
   

   In Case No. 90-1890 that Respondent (a) violated Section 489.129(1)(k), Florida Statutes, by abandoning a job without notice or just cause, (b) violated Section 489.129(1)(h), Florida Statutes by financial misconduct in the practice of contracting and, (c) violated Section 489.129(1)(m), Florida Statutes by committing gross negligence, incompetence or misconduct in the practice of contracting.

   
   

   At the hearing, the Petitioner presented the testimony of Veronica McPherson, Margaret Orkwis, James McClain, Ron Paisley, Roger Brown, Josephine Grillo, Madeline Chapman, Larry Vitt and Stan Alexander. Petitioner's exhibits

   1 through 21 were received into evidence.

   Respondent testified in his own behalf but offered no documentary evidence. A transcript was filed with the Division of Administrative Hearings on July

   10, 1990. After receiving the transcript the undersigned was advised that

   Respondent had severed his relationship with Mr. Travis and that Fred O. Ohlinger would be substituted for Mr. Travis. Mr. Ohlinger filed a notice of appearance and after some delay filed a motion for substitution of counsel which was granted. This delay resulted in motions beings filed for extension of time to file Proposed Findings of Fact and Conclusions of Law which were granted.

   The parties timely filed their respective Proposed Findings of Fact and Conclusions of Law within the extended time frame. A ruling on each Proposed Finding of Fact has been made as reflected in an Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made:

   
   

   1. At all times material to this proceeding, Respondent Wilmon Ray Stevenson was licensed as a registered building contractor in the state of Florida, holding license numbers RB 0035005 and RB A035005.

      
      

   2. License number RB 0035005 was issued on an active status qualifying an Individual in March 1987 and is still in effect. License number RB 0035005 replaced license number RR 0035005 issued in December, 1980.

      
      

   3. License number RB A035005 was issued on an active status qualifying Yankee Construction, Inc. d/b/a Olympic Homes of Citrus County (Olympic) in June 1987 and replacing license number RR A035005 issued in August 1981. In October, 1988 Respondent submitted a change of status application which was not acted

      upon by Petitioner until February, 1989 when it was deleted. However, Petitioner's file (Petitioner's Exhibit 1, page 2) indicates the license was in effect only until October, 1988. The Marion County Building Department was advised of this status change in September, 1988.

      
      

      Findings As To Case No. 90-1637

      
      

   4. On April 16, 1988, Frank and Margaret Orkwis entered into a contract with Olympic to construct a home for $37,900 which was later modified, increasing the contract price to $39,363.00.

      
      

   5. On July 26, 1988 a permit for the Orkwis job was obtained from the Marion County Building Department in accordance with the Respondent's letter dated January 25, 1985 authorizing certain individuals to "pull" permits on his license.

      
      

   6. There was a total of $27,583.20 paid to Olympic on the Orkwis contract which included $27,483.20 paid by draw schedules and $100.00 as a down payment.

      
      

   7. Olympic stopped work on the Orkwis home sometime around November 27, 1988 and failed to complete the work under the contract. Olympic gave no notice to Orkwis that it intended to terminate the work on the Orkwis job. In fact, Olympic kept putting Mrs. Orkwis off about completing the job until sometime in late January, 1989 or early February, 1989 when she decided to get a permit and complete construction. Olympic terminated the Orkwis job without just cause.

      
      

   8. The following liens were recorded against the Orkwis property for the failure of Olympic to timely pay for materials and labor furnished to Olympic for the Orkwis's job in accordance with Orkwis contract: (a) Florida A/C Sales and Services, Inc., filed December 13, 1988 and; (b) Florida Forest Products, Inc. filed December 15, 1988. The labor and materials had been furnished between October 24, 1988 and November 22, 1988.

      
      

   9. Olympic was contacted by Mrs. Orkwis concerning the liens, with no response. However there was insufficient evidence to establish that the liens had not been removed from the property, by payment or bond, within 30 days after the date of such liens.

      
      

   10. Sometime in early 1989, Mrs. Orkwis obtained a permit and she and her husband completed the home. Although Mr. Orkwis had obtained an estimate of

       $27,050.00 from a contractor to complete the home, she and her husband invested

       466.5 hours of their time and $10,340.00 for materials to complete the home. In addition to the material, a reasonable amount for labor to complete the home would be $10,000.00.

       
       

       Findings As To Case No. 90-1889

       
       

   11. John J. and Josephine Grillo and Madeline Chapman entered into a contract with Olympic for construction of a home on June 11, 1987.

       
       

   12. A permit was obtained for the Grillo/Chapman home under Respondent's license.

       
       

   13. The Grillo/Chapman home was completed and a certificate of occupancy issued January 13, 1989. Olympic was paid in full under the contract.

   14. Before the expiration of the one-year warranty under the contract, Olympic was advised of certain problems with the construction which Olympic attempted to correct. It is unclear whether the problems were satisfactorily corrected by Olympic but it appears that the only complaint not resolved was a water stain on the carpet that was the result of water seeping in under a door. Respondent was not aware of these problems until after the expiration of the one-year warranty and upon learning of the problems, commented that he was not obligated since the warranty had expired. There was insufficient evidence to establish that the problems were not corrected in accordance with contract.

       
       

       Findings As To Case No. 90-1890

       
       

   15. Veronica McPherson entered into a contract with Olympic on March 1, 1989 to construct a home for the contract price of $36,450.00 which was later modified increasing the contract price to $37,775.00.

       
       

   16. All permits were obtained under the Respondent's license pursuant to a letter dated January 15, 1985 authorizing certain individuals to "pull" permits under Respondent's license.

       
       

   17. McPherson paid $26,442.50 to Olympic pursuant to a draw schedule in the contract as the home was being constructed. Additionally, McPherson paid a

       $100.00 down payment.

       
       

   18. All work performed by Olympic pursuant to the McPherson contract was prior to November 22, 1988. The exact date of termination of work is uncertain. Olympic notified McPherson that it had terminated work and would not complete construction of the home. The exact date of this notification is uncertain. There is no evidence that notice was not given within 90 after termination of work. Olympic terminated work without just cause. McPherson paid a roofing contractor $998.00 to complete the roof on her unfinished home in order to protect the interior. McPherson was financially unable to complete construction of the home. A reasonable estimate to complete construction of the McPherson home at the time work ceased would be $20,000.00.

       
       

   19. On December 15, 1988 Florida Forest Products, Inc. recorded a lien on December 15, 1988 against the McPherson property for building materials furnished to the McPherson job on order of Olympic on October 24, 1988 for construction of the home pursuant to the McPherson contract in the amount of

       $1,450.08. There was insufficient evidence to establish that this lien had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien.

       
       

   20. There were three other claims of liens for labor and materials furnished to the McPherson job on order of Olympic between October 19, 1988 and December 2, 1988 for construction for the home pursuant to the McPherson contract as follows: (a) Florida A/C Sales and Services, Inc. dated December 8, 1988 for $1,059.00; (b) Masons Concrete of Crystal River dated December 14, 1988 for $354.97 and (c) Panning Lumber Company, a Division of Wheeler Consolidated, Inc. for $2,284.13. There is no evidence that any of the above liens were ever recorded against the McPherson property. Likewise, there is no evidence to establish that these liens had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien, if in fact they were recorded.

       General Findings

   21. Respondent was advised by Larry Vitt in February, 1988 that Olympic was having financial problems.

       
       

   22. Respondent never supervised the financial aspects of Olympic.

       
       

   23. Respondent did not participate in the contract process or supervision of the construction of homes contracted to be built by Olympic. More specifically, he did not participate in the contract process or the supervision of the construction of the Orkwis, McPherson or Grillo/Chapman homes.

       
       

   24. Respondent's main purpose in being involved with Olympic was to use his license to qualify Olympic and to contract all of Olympic's concrete block work.

       
       

   25. In March, 1989 Respondent advised the Marion County Building Department that no one was authorized to "pull" permits under his license. However, at no time did Respondent withdraw the permits for the Orkwis and McPherson jobs that had been issued under his license.

       
       

   26. The record is clear that Respondent did not understand his relationship with Olympic nor did he understand the responsibility he incurred when he used his license to qualify Olympic. However, his inexperience or ignorance in this regard does not relieve him of his responsibility to those whose homes were built or not completely built pursuant to a permit issued under his license.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   28. Section 489.129, Florida Statutes (1987) empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of Respondent if he is found guilty of any one of those enumerated acts listed in Section 489.129, Florida Statutes (1987).

       
       

   29. The three Administrative Complaints in the consolidated cases charge Respondent with violating Section 489.129(1)(d)(h)(j)(k) and (m), Florida Statutes (1987) which provides as follows:

       
       

2. Willful or deliberate disregard and violation of the applicable building codes

or laws of the state or of any municipalities or counties thereof.

(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 had 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 of gross negligence, incompetency, or misconduct in the practice of contracting.

1. Section 489.105(4), Florida Statutes defines qualifying agent as follows:

   
   

   (4) "Qualifying agent" means a 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 entity 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 act, as attested by the department.

   
   

2. In disciplinary proceedings, the burden is upon the regulation agency to establish facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 293 (Fla. 1987).

   The Petitioner has sustained its burden as to Counts III in Case No. 90-1637 and Count III in Case No. 90-1890. However, the Petitioner has failed to sustain its burden in regard to Counts I and II in Case No. 90-1637, Counts I and II in Case No. 90-1889 and Counts I and II in Case No. 90-1890.

   
   

   Case No. 90-1637

   
   

3. As to Count I, the only evidence of any local code violations was hearsay unsupported by any substantial competent evidence. Specifically, there was no evidence that the Orkwis's home failed to pass final inspection as alleged in the Administrative Complaint. As to Count II, the evidence clearly establishes that liens were recorded against the Orkwis property for labor and materials furnished and that Olympic had received funds from Orkwis to pay for these labor and materials. However, the evidence did not establish that these liens had not been removed from the Orkwis property, by payment or bond, within

   30 days after the date of such liens. Since the Count II of the Administrative Complaint alleges the failure to pay subcontractors resulting in liens being filed as the for the alleged violation of Section 489.129(1)(h), Florida Statutes (1987), then the Petitioner must show that (a) the liens were recorded against the property; (b) for labor and materials furnished; (c) the contractor

   has received funds from the customer to pay for the labor and materials and; (d) the contractor has not had the liens removed from the property, by payment or bond, within 30 days after the date of such liens. The Petitioner has failed to establish all the necessary elements for a violation of Section 489.129(1)(h), Florida Statutes. As to Count III, the evidence clearly establishes that work was terminated without timely notice and without just cause. Therefore, the Respondent has proven a violation of Section 489.129(1)(k), Florida Statutes.

   
   

   Case No. 90-1889

   
   

4. There was insufficient evidence to prove the allegation contained in the Administrative Complaint and, therefore, the Petitioner has failed to show a violation of Sections 489.105(4) or 489.129(1)(j) and (m), Florida Statutes.

   
   

   Case No. 90-1890

   
   

5. As to Count I, the evidence establishes that Olympic timely notified McPherson that Olympic was terminating construction on the McPherson home but the termination was without just cause. However, since the statute requires both termination of the project without timely notification and without just cause a violation of Section 489.129(1)(k), Florida Statutes, has not been proven. As to Count II, the evidence establishes four liens had been furnished to McPherson by different subcontractors and materialmen for labor and materials furnished to the McPherson job. However, only one of those liens had been recorded. The evidence further establishes that McPherson had paid Olympic for the labor and materials represented by those liens. What the evidence fails to establish is that those liens had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such liens. For the same reasoning set forth in paragraph 6 as to Count II of Case No. 90-1637 the Petitioner has failed to show a violation of Section 489.129(1)(h), Florida Statutes as alleged in Count II of Case No. 90-1890. As to Count III, the evidence clearly establishes misconduct in the practice of contracting and, therefore, a violation of Section 489.129(1)(m), Florida Statutes has been proven.

RECOMMENDATION

Having considered the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E-17, Florida Administrative Code, it is

RECOMMENDED:

That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(k) and (m), Florida Statutes, and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of

$2,500.00. It is further Recommended that Counts I and II for the Administrative Complaint in Case Nos. 90-1637, 90-1889, and 90-1890 be Dismissed.

DONE and ORDERED this 24th day of October, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1637

The following constitute my specific rulings pursuant to Section 120.59(20, Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Rulings of Proposed Findings of Fact Submitted by the Petitioner

1. Covered in Conclusions of Law.

2.-8. Adopted in Findings of Fact 1, 2, and 3.

4.-6. Adopted in Findings of Fact 15, 16, and 17, respectively.

7. Adopted in Findings of Fact 19 and 20, but modified. 8.-12. Adopted in Findings of Fact 18, 4, 5, 6, and 8,

respectively.

13.-14. Adopted in Findings of Fact 9 and 10, respectively, but modified.

1. Adopted in Findings of Fact 21 through 25.

2. Restatement of testimony; not stated as a Finding of Fact but see Findings of Fact 10 and 14.

3. Adopted in Findings of Fact 13 through 15.

4. Adopted in Findings of Fact 16, but modified.

Rulings of Proposed Findings of Fact Submitted by Respondent

1. Covered in Preliminary Statement.

2.-8. Adopted in Findings of Fact 1, 2, 3, 3, 15, 15, and 16, respectively.

9. Adopted in Findings of Fact 19 and 20.

10.-11. Adopted in Findings of Fact 18 but modified.

1. Adopted in Finding of Fact 4.

2. Adopted in Findings of Fact 4 and 6.

3. Adopted in Finding of Fact 5.

4. Adopted in Findings of Fact 8 and 9.

16.-20. Adopted in Findings of Fact 7, 7, 11, 13 and 14, respectively, but modified.

1. Not material.

2. Adopted in Finding of Fact 3, but modified.

3. Not material.

Copies furnished to:

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, FL 32202

Kenneth E. Easley, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

G. W. Harrell, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Fred A. Ohlinger, Esquire

P.O. Box 1007

Beverly Hills, FL 32665

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-001637

Orders for Case No: 90-001637