STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-1711

)

KIRK R. EVENSTAD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on July 13, 1990, in Clearwater, Florida.

APPEARANCES

For Petitioner: Robert B. Jurand, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Kirk R. Evenstad, pro se

17551 Second Street East Redington Shores, Florida 33708

STATEMENT OF THE ISSUES

Whether or not Respondent engaged in misconduct in the practice of contracting by commencing work on a construction project prior to obtaining a permit; failed to obtain the required final inspection for the project; failed to honor a warranty requiring his customer to obtain the assistance of another contractor at additional expense and thereby, wilfully or deliberately disregarded and violated applicable building codes or laws of this state or municipality; committed mismanagement or misconduct in the practice of contracting that caused financial harm to a customer and is thereby guilty of fraud, deceit, gross negligence, incompetency or misconduct in the practice of contracting, in violation of Subsections 489.129(1)(d),(h) and (m), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint signed October 2, 1989, Petitioner seeks to impose an administrative penalty against Respondent, and his license to practice contracting, for engaging in conduct allegedly in violation of Subsections 489.129(1)(d), (h) and (m), Florida Statutes. Petitioner timely executed an

Election of Rights Form and requested a formal hearing pursuant to Subsection 120.57(1) Florida Statutes. Thereafter, the matter was referred to the Division of Administrative Hearings on March 19, 1990, for the assignment of a Hearing Officer to conduct a formal hearing.

At the formal hearing, Petitioner presented the testimony of John R. Dunn, Jr. and introduced Petitioner's Exhibits 1 through 8, which were received in evidence at the hearing. Respondent testified on his behalf and introduced Exhibits 1 through 3, which were received in evidence at the hearing. Following the hearing, the parties were afforded leave to file proposed recommended orders. Petitioner filed a proposed recommended order on July 30, 1990, which was considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

1. Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 120, 455 and 489, Florida Statutes.

   
   

2. During times material hereto, Respondent, Kirk R. Evenstad, was licensed as a certified building contractor in Florida, holding license number CB C038008.

   
   

3. During times material, Respondent was the qualifying agent for American Weatherall Industries, Inc. (AWII)

   
   

4. On or about June 11, 1987, AWII entered into a contract with John J. Dunn, Jr., to construct an addition and reroof a portion of an existing roof at Mr. Dunn's home in Largo, Florida. Respondent was not personally privy to the terms of the contract entered into between AWII and John Dunn, although he reviewed a proposal between AWII and Dunn which required that a variance be obtained by Mr. Dunn prior to commencement of construction.

   
   

5. At about the time when Respondent reviewed the proposal for the Dunn project, strained relations developed between Respondent and AWII, with the result that Respondent and AWII parted company by severing their relationship during late July 1987.

   
   

6. AWII commenced performance of the work on the Dunn project during the last week of July 1987. When Respondent and AWII severed their relationship, Respondent was not allowed to enter AWII's offices to retrieve any of his books and records. Respondent, therefore canvassed the Largo/Clearwater area to try to recall any projects which were ongoing by AWII to make certain that there were no ongoing AWII projects for which he was responsible. At the time, it was not unusual for AWII to have in progress as many as two hundred (200) projects. Respondent drove by Mr. Dunn's home and observed AWII workers in his yard constructing the addition and reroofing project which was the subject of the proposal that he reviewed. Respondent looked around the Dunn residence to see if the project was permitted. After Respondent did not find a permit, he inquired of the workers if they had one. AWII did not have a permit and Respondent immediately contacted the Largo City Engineer's Office and requested that they stop the work at the Dunn residence as no permit had been obtained as was required. A "stop work" order was issued by the Largo City Building

   Department at Respondent's behest and work did not resume until August 27, 1987, after a permit was obtained by AWII. Fred S. Peterson succeeded Respondent as the qualifying contractor for AWII. (Petitioner's Exhibit #2.)

   
   

7. After Mr. Dunn paid the entire amount due to AWII, he noticed a leak from the reroofed portion of his roof and requested that AWII return to repair it. On numerous occasions the roof leaked and AWII refused to return to repair it. When AWII refused to return, Mr. Dunn retained Benchmark Roofing to repair the roof at a cost of $488.25.

   
   

8. Respondent did not negotiate with Mr. Dunn for the AWII project, nor was he otherwise familiar with the project other than the initial proposal that he reviewed which required a variance prior to commencement of construction and his chance meeting with several of AWII employees that he observed during late July/early August 1987. On August 21, 1987, Respondent provided formal letters to the Pinellas County local building department and the Department of Professional Regulation advising that he was no longer affiliated with AWII. Respondent also provided Petitioner with his intent to qualify another company when the corporate name information became available from the office of the Secretary of State . Respondent notified the local building officials and Petitioner as soon as he was aware that there was a contractual relationship ongoing between AWII and John J. Dunn, Jr. Respondent was unable to supervise this project as he had severed his relationship with AWII when he gained knowledge of AWII's construction activities at the Dunn's residence.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

11. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

12. Respondent, a certified building contractor, is subject to the disciplinary guidelines of Chapter 489, Florida Statutes.

    
    

13. Petitioner failed to establish, by clear and convincing evidence, that Respondent violated Subsections 489.129(1)(d), (h) and (m), Florida Statutes, as alleged. What the evidence shows is that Respondent severed his relationship with AWII, a company that he qualified, at about the same time that AWII entered into a contract with John J. Dunn, Jr. to construct an addition and reroof a portion of an existing roof, at the Dunn's residence in Largo, Florida. Respondent notified the local regulatory authorities and Petitioner as soon as practicable when he gained knowledge of the fact that AWII had commenced construction at the Dunn residence. Respondent's action was immediate and he requested that the local building officials issue a "stop work" order on the Dunn project when he learned of AWII's construction activities at the Dunn's residence. Respondent thereafter provided formal written notification to both the local and state regulatory construction agencies, advising of his non- affiliation with AWII. Given those circumstances, Respondent was not obliged to further supervise the construction activities of AWII. Likewise, Petitioner failed to establish, by clear and convincing evidence, that Respondent otherwise

engaged in incompetency and misconduct in the practice of contracting; that he failed to obtain the required building permits or that he failed to honor a warranty for a project that had begun while he was the qualifier. 1/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety.

DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 22nd day of August, 1990.

ENDNOTES

1/ Based on the conclusions found herein, Petitioner's proposed recommended disposition based on prior disciplinary conduct of Respondent by Petitioner was not deemed relevant to the issues herein and was, therefore, not considered.

COPIES FURNISHED:

Robert B. Jurand, Esquire Department of Professional

Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Kirk R. Evenstad

17557 Second Street East Redington Shores, Florida 3370

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Fred Seely, Executive Director Construction Industry Licensing Board

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Docket for Case No: 90-001711

Orders for Case No: 90-001711