STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1315

)

EDDIE A. SHADEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on April 14, 1992, at Clearwater, Florida.

APPEARANCES

For Petitioner: David Sadowski, Esquire

315 Court Street Clearwater, FL 34616

For Respondent: Eddie A. Shaden, pro se

4583 20th Avenue North St. Petersburg, FL 33713

STATEMENT OF THE ISSUES

Whether Respondent violated provisions of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Administrative Complaint dated February 10, 1992.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 10, 1992, the Pinellas County Construction Licensing Board, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Eddie A. Shaden, Respondent, as a certified building contractor. As grounds therefor, it is alleged that Respondent, as qualifying contractor for Bay City Builders, Inc., contracted to construct a four bedroom, two bath, addition to a residence in Dunedin, Florida, took a down payment to commence the project and thereafter abandoned the project; that he failed to obtain a building permit before commencing this project; and that he contracted to replace the roof on a home in Seminole, Florida, failed to obtain a permit for this work, was not qualified to perform a reroofing job, the roof leaked, and he failed to honor the warranty given.

At the hearing, Petitioner called five witnesses, Respondent testified in his own behalf, and 14 exhibits were admitted into evidence.

Proposed findings submitted by Petitioner are accepted. Those proposed findings not included herein are deemed unnecessary for the conclusions reached. Having considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was licensed by Petitioner as a certified building contractor having been issued license C-608, and was qualifying agent for Bay City Builders, Inc.

   
   

2. Bay City Builders, Inc., entered into a contract to add four bedrooms and two baths to a residence in Dunedin, Florida, being used as an Adult Congregate Living Facility (ACLF) (Exhibits 1 and 2), at a price of $32,000.

   
   

3. The contract provided, inter alia, that the contractor would provide all permits and fees directly associated with the project.

   
   

4. Upon signing the original contract on September 26, 1991, the owner paid Bay City Builders $3200 (Exhibit 3). On October 8, 1991, the owner paid Bay City Builders an additional $7200 (Exhibit 3) when the plans were presented to the owner.

   
   

5. Prior to the issuance of the permit for this project, Bay City Builders poured the footing for the building addition. The permit application was signed by Respondent.

   
   

6. After entering into the contract, Bay City Builders found there was an impact fee involved, the project was never completed and was subsequently abandoned.

   
   

7. Bay City Builders prepared a second contract for this project which increased the price to $41,789 (Exhibit 5) and presented this to the owner who did not accept the new contract.

   
   

8. Respondent admits that he was the qualifying contractor for Bay City Builders, and the permit was pulled under his license, but contends he had nothing to do with the financial arrangements between Bay City Builders and the owner.

   
   

9. Respondent was paid a flat fee by Bay City Builders for obtaining permits under his license for work Bay City Builders contracted to perform. He occasionally visited the sites where work was being performed by Bay City Builders. Bay City Builders is not licensed.

   
   

10. The permit for the ACLF addition was applied for on November 1, 1991, but was not issued by the City of Dunedin until February 13, 1992 (Exhibit 6). It could have been picked up any time after November 30, 1991.

    
    

11. On September 5, 1991, Bay City Builders entered into a contract with an owner living in Seminole, Florida, to replace the roof over a rear porch of this residence for a total price of $900. (Exhibit 8) This was a flat roof, and the initial intent was to replace the tar and gravel roof with tar and gravel.

    
    

12. At the time construction started on September 11, 1991, the person doing the installation used a rubberized roof, which was satisfactory to the owner and gave the owner a 5 year unconditional warranty.

13. Respondent's license does not authorize him to reroof an existing building, and no permit was applied for to perform this job.

    
    

14. No certified roofer was engaged to do this reroofing, the rubberized compound applied to the roof was improperly applied and the roof started leaking when the first rain came. Workers from Bay City Builders came to the residence several times to attempt to patch the leaks, but the leaks persisted. Ultimately, the owner had to employ a qualified roofing contractor to redo the roof. While Bay City Builders was attempting to stop the leaks, the ceiling over the porch was also ruined and had to be replaced.

    
    

15. In his testimony, Respondent admitted that he was the sole qualifying contractor for Bay City Builders, that his function was to give Bay City Builders a price estimate for the work intended, including the ACLF addition, but the owner of Bay City Builders entered into a contract for $5000 less than Respondent's estimate for the ACLF.

    
    

16. Respondent also acknowledged that Bay City Builders, acting under Respondent's license, entered into contracts for some 150 jobs, but that Respondent was told or learned of only 60 of these projects. Respondent was paid a fixed fee by Bay City Builders for each permit obtained, and he prepared estimates of cost.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. In these proceedings, Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. With respect to the addition to the ACLF, the Administrative Complaint alleges that Respondent failed to obtain a permit prior to commencing work in violation of Section 103, Standard Building Code, and that he abandoned the project when the percentage of completion was less than the percentage of the total contract price paid.

    
    

20. With respect to the roofing job, the Administrative Complaint alleges that Respondent failed to obtain a permit in violation of Section 103, Standard Building Code, that the roof leaks in violation of Section 706.7, Standard Building Code, that he was not licensed to perform the reroofing job, and that he failed to honor the warranty given. These are the only offenses for which findings can be made, i.e., Respondent cannot, in these proceedings, be found guilty of offenses for which he has not been charged.

    
    

21. Chapter 75-489, Laws of Florida, Section 24(2), as amended, provides in pertinent part the following acts constitute cause for disciplinary action:

    
    

    1. Willfully or deliberately disregarding and violating the applicable building codes or laws of this state, this board, or of any municipality or county of this state;

    2. Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the

       certificate holder or registrant knows or has reasonable grounds to know that the person or entity was uncertified or unregistered;

    3. Knowingly combining or conspiring with an uncertified or unregistered person by allowing his certificate or registration to be used by the uncertified or unregistered person with the intent to evade the provisions of this part. When a certificate holder or registrant allows his certificate or registration to be used by one or more business organizations without having any active participation in the opera- tions, management, or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part;

       * * *

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

       * * *

       1. 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 aban- donment, unless the contractor is entitled to retain such funds under the terms of the con- tract or refunds the excess funds within 30 days after the date the job is abandoned.

       2. The contractor's job has been completed, and it is shown the customer has had to pay more for the contracted job than the original contract price . . .

       * * *

       (k) Abandoning a construction project in which the contractor is engaged or under contract as 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.

       * * *

       (n) Proceeding on any job without obtaining applicable local building department permits and inspections.

       
       

22. Respondent is charged with violation of Standard Building Code, abandonment of project, not obtaining permits, performing work for which he is not licensed, and failure to install a roof that does not leak all of which constitute violations of subsections (d), (h), (k) and (n), above cited. The facts presented at this hearing show the most serious of the offenses committed by Respondent are violations of subsections (e) and (f), above cited; however, since these violations were not charged, Respondent cannot be found guilty of aiding and abetting an unlicensed contractor to violate the laws regulating the construction industry.

23. Although they are not specifically applicable to these proceedings, the Disciplinary Guidelines for the Construction Industry as contained in Section 21E-17.001, Florida Administrative Code, sheds some light on a recommended penalty. These guidelines include the following recommended penalties.

    
    

    (3) Contracting beyond the scope of license--

    $250 to $750 fine.

    (5)(a) Late permits--First violation letter of guidance.

    (5)(b) Job finished without a permit having been pulled $250 to $750 fine.

    1. Misconduct by failure to reasonably honor warranty $250 to $750 fine.

    2. Abandonment--First violation $500 to $2000 fine.

    (19) Gross negligence or incompetency causing monetary harm $500 to $1000 fine.

    
    

24. From the foregoing, it is concluded that the Petitioner has proved, by clear and convincing evidence, that Respondent was the qualifying contractor of Bay City Builders, Inc., and that the above-noted violations of the laws enforced by the Pinellas County Construction Licensing Board occurred. Using the Disciplinary Guidelines above shown to the facts here presented, it is RECOMMENDED

That a Final Order be entered finding Eddie A. Shaden guilty of commencing projects without first obtaining permits, abandoning a project after receiving more money than work accomplished, and of incompetence in allowing an unlicensed roofer to reroof the residence in Seminole, Florida, thereby causing a customer to have to pay a qualified roofing contractor to replace the leaking roof. It is further recommended that the Respondent's license be suspended for a period of one year and that he pay an administrative fine of $1500; however, if the

$1500 fine is paid within 30 days of the date of the Final Order the suspension be stayed for a two year probationary period at the expiration of which, unless sooner vacated, the suspension be set aside.

ENTERED this 1st day of May, 1992, in Tallahassee, Florida.

K. N. AYERS 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 1st day of May, 1992.

Copies furnished to:

David Sadowski, Esquire

315 Court Street Clearwater, FL 34616

Eddie A. Shaden

4583 20th Avenue North St. Petersburg, FL 33713

Daniel O'Brien Executive Director Construction Industry

Licensing Board Post Office Box 2

Jacksonville, FL 32202

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

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. 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: 92-001315

Orders for Case No: 92-001315