STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-6295

)

PAUL L. CROWDER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Shalimar, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 26, 1992. Petitioner filed a proposed recommended order on April 2, 1992, in which only two proposed findings of fact are numbered. These have been adopted, in substance.

APPEARANCES

William S. Cummins, Esquire For Petitioner: Department of Professional

Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Paul L. Crowder

Pro Se: 521 Shrewbury Road Mary Esther, FL 32569

STATEMENT OF THE ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated May 2, 1991, petitioner Department of Professional Regulation (DPR) alleged that respondent, "at all times material .

. . a Registered General Contractor, . . . [o]n or about February 20, 1990 . . . submitted a proposal to Dorothy Regoski for the construction of seawall at 232-D Brook Street, Fort Walton Beach, Florida for $10,227.00"; that he "abandoned said project without proper notification and without just cause" in violation of Section 489.129(1)(k) Florida Statutes (1991); that he "was paid over fifty percent (50%) of the contract price but performed less than fifty percent (50%) of the job" in violation of Section 489.129(1)(h), Florida Statutes (1991); and that he was guilty of "fraud or deceit or gross negligence, incompetency or misconduct" in violation of Section 489.129(1)(m), Florida Statutes (1991).

FINDINGS OF FACT

1. Respondent Paul L. Crowder first registered with petitioner as a general contractor on April 4, 1980. He held license No. RG 0035515 at least until July 1, 1987, when it "was placed on a delinquent status for non-renewal." Petitioner's Exhibit No. 12. Respondent's license "is considered invalid for the 1991-93 licensing period." Id.

   
   

2. On February 20, 1990, the late Dorothy Regoski accepted respondent's written proposal to construct a seawall 276 feet long to a height of four feet above mean high water on Santa Rosa Sound around the edge of her yard. She lived at 232 Brooks Street in Fort Walton Beach with her mother (to whom the house belonged).

   
   

3. By signing the proposal, Petitioner's Exhibit No. 6, Miss Regoski obligated herself to pay $10,227.00 for the seawall, which everybody agreed was needed to replace an existing seawall that had begun to fail. She gave respondent a check for $6,600 on February 20, 1990, Petitioner's Exhibit No. 7, and agreed to pay the rest when the project was completed.

   
   

4. Respondent Crowder testified he was too busy to begin work in February or March but he found time on April 17, 1990, to apply to the City of Fort Walton Beach for a building permit. Sometime thereafter he spent part of a day removing sand just landward of the existing seawall and severing the "tie backs" with which the top of the existing seawall had been anchored to "dead men" further landward.

   
   

5. It was necessary to break the "tie backs" in order to install the replacement seawall against the landward side of the existing seawall. Fortunately, removal of the sand diminished or eliminated the pressure or moment tending to tip the top of the existing seawall seaward. But, perhaps mainly because of salt water "cut worms" at work on the existing wall, only some sixty percent of the existing wall remained vertical by the time Mr. Lancaster inspected it in June of 1990.

   
   

6. On two or three occasions after the initial excavation, although never for more than a day at a time, respondent or his employees returned to the Regoski home, put in piles, and joined many of them with horizontal 3" x 6" stringers or "whalers." In mid-June, after they had failed to appear for over a month, Ms. Regoski engaged Wayne Lancaster to finish the job. Mother and daughter were understandably alarmed at the rate of erosion boat wakes, the southeast wind and the jetting action of tides created.

   
   

7. Mr. Lancaster supplied additional whalers and repositioned others, then installed two courses of 1" x 8" planks separated by filter cloth, and tied back the new seawall to its own deadman. He charged $6200, Petitioner's Exhibit No. 11, and he and his men finished the job in a week and a half.

   
   

8. The evidence put respondent's work at approximately two-fifths of the whole. Mr. Pelham, a professional engineer who has designed and supervised the erection of at least 100 seawalls (and who remembers the day respondent was born), put the fraction at 41%. Respondent claimed about 40%. The successor contractor testified it might have been as little as 30%.

   
   

9. Once respondent excavated, exposing the old seawall and tie backs, acceptable construction practice required staying with the job until it was

   finished. Respondent's handling of this project was closely analogous to a roofer's taking a roof off and leaving the roof uncovered.

   
   

10. Respondent conceded that the delay was not standard practice and that normally such a project should not be interrupted. He also testified that he knew the existing seawall was damaged and "fixing to go." The project should have been completed in a continuous operation, both to protect the upland against erosion and to avoid siltation of waters of the state.

    
    

    CONCLUSIONS OF LAW

    
    

11. Since DPR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

    
    

12. The Florida Construction Industry Licensing Board (CILB) has broad regulatory authority over contractors under Chapters 455 and 489 of the Florida Statutes and is specifically authorized

    
    

    to 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 . . . is found guilty of any of the following acts:

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

    . . .

    2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned;

    . . .

    (k) Abandoning 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 just cause or without proper notification to the prospective owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.

    . . .

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

    Section 489.29(1), Florida Statutes (1991). Here DPR has alleged that respondent violated Section 489.29(1)(h), (k) and (m) Florida Statutes (1991), by his conduct of the job he undertook for Ms. Regoski.

    
    

13. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

    391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

    See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

    393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

14. DPR proved clearly and convincingly that respondent Crowder committed "gross negligence, incompetency, or misconduct in the practice of contracting," Section 489.129(1)(m), Florida Statutes (1991), in leaving the project at a crucial juncture (although only for 30 days) in light of the fact that he knew the old sea wall, whose connections to supporting "deadman" he had broken, was "fixing to go," and did in fact collapse in substantial part, leaving the property unprotected.

    
    

15. DPR did not prove that Mr. Crowder failed to perform work on the job for 90 consecutive days and failed, therefore, to establish a violation of Section 489.129(1)(k), Florida Statutes (1991). Since subsection (h) specifies no other definition for abandonment, the same 90-day requirement presumably obtains for purposes of that provision, as well. Even though the evidence did not show "abandonment" (or financial misconduct by virtue of "abandonment"), the proof was clear that respondent's dereliction cost Ms. Regoski $2,573, the difference between the originally agreed $10,227 and the $12,800 ($6,600 to respondent and $6,200 to Mr. Lancaster) Ms. Regoski was ultimately obliged to pay.

RECOMMENDATION

It is, accordingly, and in keeping with Rule 21E-17.002, Florida Administrative Code,

RECOMMENDED:

That the CILB suspend respondent's license for thirty (30) days, and thereafter until he has paid Ms. Regoski's estate two thousand five hundred seventy-three dollars ($2,573).

DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 7th day of May, 1992.

Copies furnished to:

William S. Cummins, Esquire Department of Professional

Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Paul L. Crowder

521 Shrewbury Road Mary Esther, FL 32569

Daniel O'Brien, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, FL 32202

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

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. 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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NO.: 90-06919

vs. DOAH CASE NO.: 91-6295

PAUL L. CROWDER, LICENSE NO.: RG 0035515,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 120.57(1)(b)(9), Florida Statutes, on September 10, 1992, in Orlando, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Wellington Meffert.

The Respondent was neither present nor represented by counsel 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, including the 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 Officers Conclusions of Law are hereby approved and adopted in toto except where they are contrary to the Petitioner's Exceptions to Recommended Order which is hereby approved and adopted and incorporated herein by reference.

3. Respondent is guilty of violating Section 489.129(1)(h), (k), and (m), Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby rejected for those reasons set forth in Petitioner's exceptions.

   
   

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

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay to the Board costs of four thousand nine hundred ten dollars and ninety three cents ($4,910.93), and provide written proof satisfactory to the Board's Executive Director of having paid restitution of two thousand five hundred seventy three dollars ($2,573.00) to Ms. Dorothy Regoski of Fort Walton Beach. Said costs and restitution shall be paid in thirty (30) days. Respondent's license and eligibility for licensure is hereby suspended for thirty (30) days and indefinitely thereafter until said costs and restitution are paid. Upon payment of the costs and restitution after the thirty (30) days, the suspension imposed shall be lifted; in no event shall Respondent resume use of Respondent's licensure under this provision until notified in writing by the Executive Director that said licensure has been restored to good standing.

At the conclusion of the imposed suspension Respondent shall be on probation in this case for two years, and in connection therewith shall appear before the Board's Probation Committee, to stand for and answer questions from the Department and the Board, at the Board's regularly scheduled monthly meetings every six months, wherever said meetings shall be held; provided Respondent's license is in good standing. Should Respondent's license be suspended or go inactive the probation period shall similarly go inactive and shall be reactivated for the remainder of the specified time upon reactivation of said license. The first probation appearance to be six months after said license is reactivated with subsequent probation appearances every six months until the original probation period is completed.

In connection with each probation appearance, Respondent will provide such information and documentation as the Department or Board shall request, within the time constraints set by the Department, said documentation to include, but not be limited to, monthly bank statements, financial statements, permit applications, contracts, and operations questionnaires. The burden shall be solely upon Respondent to remember the requirement for said appearance, and to take the necessary steps in advance of said appearances to contact the Board office and ascertain the specific time, date, and place of said appearance, the Respondent will not rely on getting notice of said appearances from the Board or Department. It shall be considered misconduct under Section 489.1129(1)(m) for Respondent to violate any condition of this probation.

To ensure successful completion of probation it is ordered that Respondent's license is suspended for twenty years with the suspension stayed for the period of probation. If Respondent successfully completes probation the suspension shall terminate. If Respondent fails to properly respond to or make successful probationary appearances as directed, upon notification to the Department by the Probation Committee Chairman, the stay shall be lifted. The suspension shall remain in effect for the remainder of the twenty year period or until a further stay is granted by the Board.

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 32399-0792, 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 20th day of January, 1992.

CARLOS LOPEZ-CANTERA, Chairman

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of tile foregoing Final Order has been provided by U.S. Mail to

Paul L. Crowder Paul L. Crowder

311 East Miracle Parkway 521 Shrewsbury Road

Mary Esther, Florida 32569 Mary Esther, Florida 32569

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 20th day of January, 1993.

Docket for Case No: 91-006295

Orders for Case No: 91-006295