STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6442

)

STERLING E. WAITERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 25, 1994, in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Frank Freeman, Esquire

3550 Biscayne Boulevard, Suite 401

Miami, Florida 33137 STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Section 489.129(1), Florida Statutes. By Administrative Complaint the Respondent has been charged with having violated Subsections (k), (h), and

1. of Section 489.129(1), Florida Statutes, on the basis of allegations that he abandoned a construction project, that he committed misconduct or mismanagement in the practice of contracting causing financial harm to a customer, and that he committed misconduct in the practice of contracting.

   
   

   PRELIMINARY STATEMENT

   
   

   By means of a Notice of Hearing issued on December 9, 1993, the formal hearing in this case was scheduled to begin at 9:00 a.m. on February 25, 1994, and by separate order issued that same day, this case was consolidated with Case Nos. 93-6440 and 93-6441. Subsequently, Case No. 93-6440 was resolved when the Petitioner filed a Notice of Voluntary Dismissal, and Case No. 93-6441 was

   placed in abeyance due to a settlement stipulation. On February 24, 1994, a telephone conference call hearing was held, at which time the Hearing Officer changed the starting time of the hearing to 12:00 noon, to accommodate scheduling conflicts of the Respondent's newly-retained counsel. On February 25, 1994, the formal hearing in this case was held, beginning at 12:05 p.m.

   Thereafter, on March 7, 1994, an order was issued formally severing Case Nos. 93-6440, 93-6441, and 93-6442, due to the separate avenues the cases had taken towards their ultimate resolution.

   
   

   At the formal hearing on February 25, 1994, the Petitioner presented the testimony of three witnesses and offered twelve exhibits, of which eleven were received in evidence. The Respondent testified on his own behalf. The Respondent did not call any other witnesses and did not offer any exhibits.

   
   

   At the conclusion of the hearing, the parties were allowed twenty days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Division of Administrative Hearings on April 5, 1994. On April 25, 1994, the Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on the proposed findings of fact are contained in the Appendix hereto. As of the date of this Recommended Order, the Respondent has not filed a proposed recommended order or any other post-hearing document.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material, the Respondent was licensed as a general contractor, holding license number CG C003564, qualifying WSCON Corporation.

      
      

   2. On or about September 27, 1990, the Respondent, acting on behalf of WSCON Corporation, entered into a contract with Emilio and Jennie Delgado to build an addition to the Delgado's residence at 13562 Southwest 286th Terrace, Miami, Florida, for a price of $12,756.00.

      
      

   3. On or about January 5, 1991, the parties to the contract agreed to a change order which increased the contract price by $1,248.00, to a total of

      $14,004.00.

      
      

   4. The Respondent obtained a building permit for the job from Dade County and the Respondent began work on the job about a month after signing the contract.

      
      

   5. The Delgados made payments to the Respondent pursuant to the contract in the total amount of $10,500.00. The final payment was due upon completion of the job. The Delgados never made the final payment because the Respondent never finished the job.

      
      

   6. After about September or October of 1991, the Respondent performed no further work under the contract. At that time, the Respondent had completed the majority of the work, but there was still some work that remained to be completed. 1/

      
      

   7. The Respondent discontinued performing work called for by the contract because of financial problems he was having due to his not having received certain funds owed to him by Dade County. He offered to continue working on the job if the Delgados would advance him sums under the contract that were not yet due, but the Delgados refused to do so.

   8. The Delgados never discharged the Respondent. The Delgados completed the job themselves, paying a total of $6,046.21 to various suppliers of labor and materials other than the Respondent. 2/

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   10. The Construction Industry Licensing Board is the state agency charged with regulation of the practice of contracting pursuant to Chapter 489, Florida Statutes.

       
       

   11. The refusal by the Delgados to advance to the Respondent funds not yet due under the contract does not constitute a legally sufficient excuse for the Respondent's failure to complete his performance of the contract with the Delgados.

       
       

   12. The Respondent failed, without just cause, during the latter part of 1991, to continue work under the contract with the Delgados. This constituted an abandonment within the meaning of, and therefore in violation of, Section 489.129(1)(k), Florida Statutes (1991), as alleged in Count I of the Administrative Complaint.

       
       

   13. In Count II of the Administrative Complaint the Respondent is charged with mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Section 489.129(1)(h)2, Florida Statutes (1991), reads as follows, in pertinent part:

       
       

       (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. . . .

       
       

   14. The evidence in this case is too insufficient and incomplete to establish what percentage of completion was achieved by the Respondent. Absent proof of that percentage, the evidence is insufficient to establish a violation of Section 489.129(1)(h)2, Florida Statutes.

       
       

   15. The Petitioner argues that the Respondent has violated Section 489.129(1)(h)3, Florida Statutes, which provides that financial mismanagement or misconduct also occurs when:

       
       

       3. The contractor's job has been completed, and it is shown that the customer has had to pay more for the contracted job than the

       original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances

       beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.

       
       

       Again, the evidence is insufficient to establish an essential element of the offense. Although the evidence shows that the customer in this case did pay more than the contract price, as adjusted, the evidence is insufficient to show that the customer had to do so, because, as noted in endnote number 2, the evidence is insufficient to show whether the amounts paid were reasonably necessary to finish the job and is insufficient to show that the customer finished the job in a manner consistent with the contract with the Respondent. 3/ Accordingly, Count II of the Administrative Complaint should be dismissed.

       
       

   16. In Count III of the Administrative Complaint the Respondent is charged with being guilty of misconduct in the practice of contracting and is alleged to thereby be in violation of Section 489.129(1)(m), Florida Statutes (1991). The cited statutory provision authorizes disciplinary action against a licensee found to be guilty of:

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

It is first noted that the Respondent has not been charged with committing fraud, deceit, gross negligence, or incompetency. Accordingly, he cannot be found guilty of any of those acts. With regard to the charge of misconduct in the practice of contracting, in the broadest sense of the term the Respondent's act of abandoning the job constitutes "misconduct in the practice of contracting." However, that conduct is specifically addressed in Count I of the Administrative Complaint and in Subsection (k) of Section 489.129(1), Florida Statutes (1991). Apart from the abandonment, no separate act of misconduct has been proved. Because no separate act of misconduct has been established, there is no basis for finding the Respondent guilty of a separate violation and imposing a separate penalty. Therefore, Count III of the Administrative Complaint should be dismissed.

RECOMMENDATION

On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect:

1. Dismissing the charges alleged in Counts II and III of the Administrative Complaint;

   
   

2. Finding the Respondent guilty of a violation of Section 489.129(1)(k),

   Florida Statutes, as charged in Count I of the Administrative Complaint; and

   
   

3. Imposing the following penalty: an administrative fine in the amount of one thousand dollars ($1,000.00) and a one year period of probation.

DONE AND ENTERED this 23rd day of June 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 23rd day of June 1994.

ENDNOTES

1/ The evidence in this case is too vague and incomplete to state with any greater specificity how much work remained to be completed.

2/ The evidence is too insufficient and incomplete to support a finding as to whether the Delgados finished the job in a manner consistent with their contract with the Respondent. The evidence is also too insufficient and incomplete to support a finding as to whether the amounts paid by the Delgados were reasonably necessary to finish the job. In this regard it should be noted that the evidence in this case does not include the plans and specifications that describe what the Respondent agreed to do, does not include any clear evidence of how much the Respondent finished, and does not include any clear evidence of what work was done by the Delgados.

3/ It is also uncertain whether Section 489.129(1)(h)3, Florida Statutes, applies to a contractor who abandons a job. The language of the opening clause of the subject statutory provision is, at best, ambiguous. Such statutes are usually strictly construed and any ambiguities in the statutes are usually resolved in favor of the licensees. See, generally Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979); Lester v. DPR, Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977); and Farzad v. Department of Professional Regulation, 443 So.2d 373, (Fla. 1st DCA 1983).

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by the parties:

Proposed findings submitted by Petitioner.

Paragraphs 1 through 6: Accepted.

Paragraph 7: Accepted, with the exception of the word "substantial". The evidence is insufficient to describe how much work remained to be completed.

Not much weight has been given to the testimony of the customer. She was an enthusiastic critic of the Respondent with her own financial interests to advance, rather than a disinterested, unbiased witness. Her testimony was in many respects vague and incomplete, and at times inconsistent. Further, her

opinions are not supported by any experience or education in the field of contracting.

Paragraph 8: Accepted.

Paragraphs 9 and 10: Rejected as subordinate and unnecessary details. Paragraphs 11 and 12: Accepted.

Proposed findings submitted by Respondent. (None submitted)

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue #N-607 Miami, Florida 33128

Frank Freeman, Esquire

3550 Biscayne Boulevard, Suite 401

Miami, Florida 33137

Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 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 ten 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: 93-006442

Orders for Case No: 93-006442