STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5893

)

WILLIAM H. HOWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on May 15, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens

Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

For Respondent: Was not present at hearing and

was not represented by counsel. STATEMENT OF THE ISSUE

The issue for consideration in this hearing was whether Respondent's certification as a building contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By a four-count Administrative Complaint dated May 26, 1995, William J. Owens, Executive Director of the Pinellas County Construction Licensing Board (Board) alleged that Respondent, William H. Howell had, during the early part of 1994, violated several sections of Chapter 75-489, Laws of Florida, by, having contracted with an owner of property to construct a house for him and having taken at least one payment therefor, abandoning the project. This caused the owner to pay more for the construction than the contract price and caused the owner to spend additional funds for supplies and services, and Respondent was, thereby, guilty of fraud or deceit, gross negligence, incompetency or misconduct in the practice of contracting.

Respondent denied the allegations in the Administrative Complaint and demanded formal hearing, and thereafter the undersigned, to whom the file had

been transferred in the interim, set the matter for hearing in Largo on March 20, 1996. Because the Respondent did not receive timely notice of the hearing and was not prepared to proceed as scheduled, a continuance was granted at Respondent's request until May 15, 1996 so that Respondent could retain counsel and prepare for the hearing. Notice of the continuance and new hearing date was timely furnished to the Respondent by United States Mail and was not returned undelivered.

On May 15, 1996, the undersigned, Petitioner's Qualified Representative and the aggrieved party were present at the scheduled time and place for hearing.

Respondent did not appear even though the undersigned delayed the commencement of the hearing for an additional fifteen minutes beyond the scheduled starting time in the event Respondent had been delayed in traffic. When Respondent failed to appear, the hearing commenced and Petitioner presented evidence in support of the allegations in the Complaint. Respondent neither appeared nor did he contact the Hearing Officer or Petitioner's representative to seek additional time.

At the hearing, Petitioner presented the testimony of John M. Buntrock, the property owner in question, and Jeffrey Adams, a contractor. It also introduced Petitioner's Exhibits 1 through 3. Respondent presented no evidence. Neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, was the agency in Pinellas County, Florida responsible for the county-wide certification of contractors and the regulation of the contracting profession in Pinellas County. Respondent was certified as a building contractor in Pinellas County under license C-1804, and was the qualifying contractor for C&H Custom Homes, Inc., with which the complainant entered the contract in issue.

   
   

2. On May 5, 1994, John H. and Katherine L. Buntrock and Diane M. DiBiccari entered into a purchase agreement with C&H Homes for the construction of Model 1523 with extended den, a residence to be erected at Lot 5, Maximo Moorings Bayview Addition in St. Petersburg, for a contract price of $130,000. The purchasers put $100.00 down at the time the agreement was signed, with the remaining balance of $129,900 to be paid through subsequent cash payments and a mortgage. The contract, which was signed by Respondent for C&H Homes, Inc., provided for the project to be completed within 150 days from the start of construction. Mr. Buntrock made subsequent arrangements with his bank for future draws by the contractor for the cost of construction.

   
   

3. Somewhat later, Respondent drew $8,040 pursuant to those arrangements from the Barnett Bank, Mr. Buntrock's bank. After several weeks went by without any work being done, Mr. Buntrock contacted the bank and was told about the Respondent's initial draw. Buntrock then contacted the Respondent who said he was busy on a project and would start work on Buntrock's project when he finished his current project. Respondent indicated he had had fill dirt placed on the lot in anticipation of commencement of construction which, in fact, he did not do. He did have dirt delivered to the general area, but it cannot be determined if that dirt was for this project or other projects Respondent was working on. Respondent, however, did not pay the subcontractor for any dirt. Mr. Buntrock later paid the subcontractor the sum of $1,718.20 for the dirt.

4. Respondent also arranged with an architect to modify plans for this particular unit for a price of $500.00 which he also did not pay. The plans were modified as requested, but no permits were ever pulled by Respondent or the architect for this project.

   
   

5. After some time had passed without any work beginning on the property, Mr. Buntrock consulted his attorney who wrote to Respondent demanding an explanation. Aside from phone calls from the Respondent in response and many promises by the Respondent to start the project, no work on it was done by Respondent or anyone on his behalf. Finally, on October 21, 1994, more than five months after the contract was signed, when no construction had been started by the Respondent, Mr. Buntrock's attorney advised the Respondent not to do any work pursuant to the contract. Mr. Buntrock then hired Jeff Adams, another contractor, to do the work originally called for under the contract with the Respondent.

   
   

6. When Mr. Adams was contacted with regard to taking over this project, he was told by Buntrock's attorney and the bank that the site work and the fill dirt had been paid for. This was not true. All Respondent had done was to push debris from two adjoining lots, on which he had been building, onto the Buntrocks' lot. No sitework other than scraping and clearing was done. No survey had been done and no pad building had been done. The architect's plans were merely a stock set of plans with annotations of what the Buntrocks wanted placed on them. No drawings were done specifically for this construction. The

   $500.00 previously paid was for making prints of the plans which had been ordered by the Respondent and which, incidentally, were not correct.

   
   

7. Mr. Adams had to obtain additional dirt for the building site because much more was needed than what had been procured. He contacted the same subcontractor used by Respondent and was told that the dirt that was on site had not been paid for. The subcontractor threatened to file a lien on the property if it was used. Mr. Buntrock thereafter authorized Adams to pay for the dirt for which he would be reimbursed. Mr. Adams also contacted the architect who refused to release a good set of plans for this project until he was paid for those he had already provided.

   
   

8. Once Mr. Adams started work, he finished the project within ninety days. The more than five months that Respondent consumed without working on the project was neither justified nor normal practice within the trade.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Sections 120.57(1), and 120.65(8), Florida Statutes.

   
   

10. Petitioner alleges in its Administrative Complaint that the respondent contracted with a property owner to build a house for him and thereafter acquired start-up and draw payments totaling $8,050. Thereafter, he allegedly abandoned the project without doing any work which resulted in the owner paying more than the contract price for the work and more than was called for to reimburse subcontractors for supplies and services provided but not paid for. All of this, it is alleged, constituted fraud or deceit or gross negligence, incompetency or misconduct in the practice of contracting which are violations of Sections 24(2), Chapter 75-489, Laws of Florida.

11. The burden is on the Petitioner to prove the allegations made by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The undisputed evidence of record clearly establishes that the Respondent entered into a contract with a property owner for the construction of a residence for a certain price; and that thereafter, he acquired a down payment from the owner and at least one draw from the account established by the owner at the bank to provide funds for construction of the building. The evidence also clearly establishes that Respondent, over a period of more than five months from the contract date, did no work toward construction of the premises other than to scrape some debris onto the property from two other lots on which he had been working. Certain dirt which Respondent ordered, presumably for this construction, was not used for it nor was it paid for. The stock plans which Respondent ordered modified by the architect were neither correct nor paid for by the Respondent. As a result, the owner had to hire another contractor to accomplish the project and ended up paying more than the contract price for the project and paying again for the dirt fill and the plans.

    
    

12. Financial mismanagement or misconduct occurs when the work has been abandoned or when the job has been completed and the customer has had to pay more for the job than the original job price.

    
    

13. The cited evidence of Respondent's activities is both clear and convincing and supports the charge of abandonment and misconduct and borders on gross negligence and incompetency. Consequently, all allegations in the Administrative Complaint have been proven by clear and convincing evidence.

    
    

14. Petitioner has not indicated what it considers to be a proper quantum of punishment for the offenses alleged and of which the evidence establishes Respondent's guilt. The practice of the Board to consider restitution as a factor to be considered is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order finding Respondent guilty of the offenses alleged and imposing an appropriate penalty which may include revocation of Respondent's license and imposition of an administrative Fine of $5,000.00.

DONE and ENTERED this 6th day of June, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 6th day of June, 1996.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

William H. Howell

C & H Homes, Incorporated 7542 Cumberland Court

Largo, Florida 34647

Howard Bernstein

Senior Assistant County Attorney City Attorney's Office

315 Court Street

Clearwater, Florida 34616-5165

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 95-005893

Orders for Case No: 95-005893