STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1497

)

RONNIE BOLES, )

)

Respondent )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on the merits in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Lead Construction Attorney Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against Respondent's license to practice contracting number RC 0054458, based on the violations of Section 489.129(1)(j), (k), (h), (p) and (m), F.S., alleged in the five count Administrative Complaint.

PRELIMINARY STATEMENT

Formal hearing in this cause was commenced only after waiting an extra period of time to see if Respondent or anyone representing him would arrive. The record of this case establishes the presumption that Respondent had appropriate notice. No appearance was made by him or on his behalf.

The Prehearing Statement of Petitioner was entered in evidence as Hearing Officer Exhibit A.

Petitioner presented the oral testimony of William Charles Martin, Jean H. Martin, Ronald E. Holmes, and Thomas G. Bishop and had six exhibits admitted in evidence.

Petitioner was granted leave to file an after-filed attorney's fee and cost affidavit, which filing was timely accomplished.

Both parties were provided a post-hearing order explaining how to file their proposed findings of fact and conclusions of law. Respondent's copy of this order was not returned, again creating the presumption that he received it.

Petitioner filed a transcript in due course. Petitioner timely filed a proposed recommended order, the proposed findings of fact of which have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S. Respondent filed no proposals.

FINDINGS OF FACT

1. Since July 1968 and at all times material, Respondent Ronnie Boles, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0054458, and was registered to do business as "Ronnie Boles Roofing Company."

   
   

2. On January 8, 1990 Ronnie Boles, doing business as Ronnie Boles Roofing and Construction, contracted with William C. Martin to construct two pole barns at 10550 N.W. 36th Lane, Gainesville, Alachua County, Florida. The contract price was $21,000.00. There is no evidence that "Ronnie Boles Roofing and Construction" was authorized through a valid contractor to construct pole barns. Respondent's roofing contractor license also did not permit the construction of pole barns.

   
   

3. On January 12, 1990, Ms. Jean H. Martin, wife of William C. Martin, issued a personal check to the Respondent for $10,000 as partial payment on the January 8, 1990 contract.

   
   

4. The Respondent delivered some materials to the site for use in the construction of the aforementioned pole barns, but never began construction. Mr. Martin attempted to have the Respondent construct the pole barns for over three months without success.

   
   

5. The value of the materials provided by the Respondent was approximately

   $2,000.00, Mr. Martin attempted to have the Respondent refund the $8,000.00 balance of the money Ms. Martin previously paid Respondent on the uncompleted contract. Eventually, Mr. Martin retained attorney Ron Holmes who filed a civil suit against the Respondent based on the aforementioned contract. A judgment for Mr. Martin was obtained in the amount of $9,374.36 on October 1, 1991.

   
   

6. Mr. Holmes has attempted to collect the judgment for Mr. Martin on several occasions without success. The Respondent has been actively uncooperative. As of the date of the formal administrative hearing, Respondent had paid no portion of the aforementioned judgment.

   
   

7. Mr. Martin filed a complaint against the Respondent with the Department of Business and Professional Regulation. Tom Bishop, Department of Business and Professional Regulation Investigator, investigated the case and mailed the Respondent a notification letter on April 20, 1992. In addition, Mr. Bishop left two messages on the Respondent's answering machine. The Respondent did not respond to the notification letter or the phone messages left by Mr. Bishop.

8. The Department of Business and Professional Regulation has accumulated

   $22.40 in initial investigative costs, $267.50 in investigative costs, and

   $605.90 in legal costs associated with prosecution of this cause as of the date of Petitioner's Proposed Recommended Order, totalling $895.80.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

   
   

10. The Florida Construction Industry Licensing Board is empowered to revoke, suspend, or otherwise discipline the license of a contractor for any of the following violations of Section 489.129(1) F.S.

    
    

    1. Failing in any material respect to comply with the provisions of this part.

    2. Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after ninety (90) days if the contractor terminates the project without notification to the prospective owner and without just cause.

       (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.

       (p) Failing to satisfy within a reasonable time, the terms of a civil judgment obtained against the licensee relating to the practice of the licensee's profession.

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

       
       

11. Respondent violated Section 489.129(1)(j) F.S. by violating Section 489.117(2) F.S. [1989], which provides inter alia, that a registration allows the registrant to engage in contracting only for the type of work covered by the registration. The Respondent is licensed as a roofer, pursuant to Section 489.105(3)(e) F.S., and is not licensed to perform the structural work required for the construction of a pole barn, which is essentially an enclosed structure of four "supporting" sides with struts and a gabled roof.

12. Respondent violated Section 489.129(1)(k) F.S. [1989], by abandoning the Martins' construction project without just cause and without proper notification. Respondent ordered materials for the project, but thereafter performed no additional work for over three months without just cause or explanation to Mr. Martin.

    
    

13. Respondent violated Section 489.129(1)(h) F.S. [1989], by committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer. Respondent failed to proceed on the project after supplying

    $2,000.00 worth of material and failed to refund any of Martin's $10,000.00 down payment. Since the total contract price was $21,000.00, this resulted in the Respondent abandoning the project when the percentage of completion was less than the percentage of the total contract price paid to Respondent by the Martins.

    
    

14. Respondent violated Section 489.129(1)(p) F.S. [1991], by failing within a reasonable time to satisfy the terms of the October 5, 1991 civil judgment obtained against him, which is directly related to the practice of contracting, and then failing to timely honor that judgment. Even when a debtor truly cannot pay, he has an obligation to cooperate with lawful attempts to enforce a judgment against him. Respondent has not done this.

    
    

15. This scenario does not amount to gross negligence or fraud but is clearly gross misconduct, pursuant to Section 489.129(1)(m) F.S. [1989].

    
    

16. Section 61G4-17.001 F.A.C. (formerly 21E-17.001) provides,

    
    

    The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provision of this chapter:

    
    

    (3) 389.117, 489.113: contracting beyond scope of license - no safety hazard. First violation, a letter of caution, repeat violation, $250.00 to $750.00 fine.

    (12) 489.129(1)(k): Abandonment. First violation, $500.00 to $2,000.00 fine; repeat violation, revocation.

    (10) 489.129(1)(h): Diversion of funds. First violation, $750.00 to $1,500.00 fine, repeat violation, revocation.

    (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500.00 to

    $1,500.00 fine; repeat violation, $1,000.00 to $5,000.00 and suspension or revocation.

    (21) The absence of any violation from this chapter shall be viewed as an oversight, and shall not be constructed as an indication

    that no penalty is to be assessed.

17. Section 21E-17.002 F.A.C. provides that the circumstances which may be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

    
    

    (1) Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed.

    (8) Actual damage, physical or otherwise, to the licensee's customer.

    (11) Any efforts at rehabilitation.

    
    

18. Section 489.129(1) F.S. permits the Board to assess costs of investigation and prosecution where the violations and the costs are proven.

    
    

19. The Respondent has committed violations, which, absent factors of aggravation, could result in a cumulative fine ranging from $2,000 to $5,000.00. Assuming Respondent would be found guilty of five violations, Petitioner sought a penalty requiring Respondent to pay the costs of investigation and prosecution, a fine of $5,000.00, restitution to Mr. Martin in the amount of

    $9,374.36, and revocation of Respondent's licensure based on the applicable guidelines and the aggravating circumstances, characterized by Petitioner as follows:

    
    

    1. The Respondent made no attempt to complete the work contracted for or to refund contract monies paid to him which he was not entitled to retain. The Respondent's customer has suffered significant financial damage.

       
       

    2. The Respondent has made no effort to honor the civil judgment obtained against him in this matter and has been uncooperative regarding any efforts to collect payment. The Respondent refused to contact Petitioner's investigator or furnish any response to the customer's complaint. The Respondent's recalcitrance in this matter is indicative of an unprofessional attitude and scorn for the professional status of his licensure. He has made no effort at rehabilitation and his pattern of behavior constitutes a danger to the public.

    
    

20. It is, however, noted that Respondent has been licensed since July of 1968 and the agency has put on no evidence of prior offenses. A clean record from 1968 to 1990 and the situation herein where all five first violations stem from a single incident is suggestive that this Respondent may be redeemable. Accordingly, a penalty less than revocation is in order.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order which provides as follows:

1. Finds Respondent guilty of all violations as set out above.

2. Requires Respondent to pay a collective fine of $5,000.00;

3. Requires Respondent to pay restitution to Mr. Martin of $9,374.36;

4. Requires Respondent to pay costs of investigation and legal fees in the amount of

   $895.80; and

5. Suspends Respondent's license for three years, thereafter renewal of his license to

be subject to proof of Respondent's compliance with requirements (2) - (4) inclusive.

RECOMMENDED this 1st day of February, 1994, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1497

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1 Rejected as unnecessary.

2-9 Accepted as modified to remove rhetoric and cumulative material.

Respondent's PFOF:

None Filed.

COPIES FURNISHED:

G. W. Harrell, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ron Boles

Route 2 Box 417

Alachua, Florida 32615

Richard Hickok, Executive Director Construction Industry Licensing 7960 Arlington Expressway

Jacksonville, Florida 32211-7467

Jack McRay, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 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: 93-001497

Orders for Case No: 93-001497