STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-6190

)

WAYNE CASSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on March 22, 1996, in Largo, Florida, before Carolyn S. Holifield, 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: Wayne Cassity, pro se

5000 Rena Street North

St. Petersburg, Florida 33709 STATEMENT OF THE ISSUE

Whether Respondent, Wayne Cassity, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's contractor's license.

PRELIMINARY STATEMENT

On or about December 13, 1995, Petitioner, Pinellas County Construction Licensing Board, filed an Administrative Complaint containing nine counts against Respondent. Count One alleged that Respondent abandoned a job without just cause and notification to owner or failed to perform work without just cause for ninety (90) days in violation of Section 489.129(1)(k), Florida Statutes. 1/ Count Two charged that Respondent abandoned a construction job and the percentage of work completed is less than the percentage of the total contract price paid at the time of abandonment in violation of Section 489.129(1)(k), Florida Statutes. 2/ Count Three charged that Respondent performed plumbing work without proper permits or inspections in violation of Section 489.129(1)(p), Florida Statutes. 3/ Count Four alleged that Respondent

failed to properly supervise work and to timely complete work, and is thereby guilty of incompetence or misconduct in the practice of contracting in violation of Section 489.129(1)(n), Florida Statutes. 4/

Count Five alleges that Respondent failed to obtain a permit prior to beginning work in violation of the Standard Building Code. Count Six charges Respondent with installing natural gas piping without a permit in violation of Section 3.2, NFPA 54, National Fuel Gas Code (1992). 5/ Count Seven charges that Respondent performed work on gas fuel lines thereby acting outside the scope of his competency in violation of Section 489.117(b), Florida Statutes. 6/ Count Eight alleges that Respondent acted as an electrical contractor thereby acting beyond the scope of his competency license in violation of Chapter 75-489, Laws of Florida, as amended in Chapter 89-504, Section 24 (2)(g), Laws of Florida. Count Nine alleges that Respondent committed unfair construction practices by deviating from or disregarding plans without consent of buyer and failing to timely complete construction project in violation of Rule 2-15.003, Florida Administrative Code. 7/

Petitioner further charges that the allegations contained in the Administrative Complaint constitute violations of Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24 (2) (d), (g), (h), (j), (m), and (n), Laws of Florida.

Respondent denied the allegations and timely requested a formal hearing. By letter dated December 22, 1995, the matter was referred to the Division of Administrative Hearings and this proceeding followed.

At the hearing, Petitioner presented the testimony of four witnesses and had eleven exhibits admitted into evidence. Respondent testified on his own behalf and introduced no exhibits into evidence. Following the presentation of evidence, Petitioner withdrew Count Three of the Administrative Complaint. At the request of the parties, the record remained open until April 8, 1996, for late-filed exhibits. Petitioner submitted six documents as late-filed exhibits, all of which were rejected as unsubstantiated hearsay.

The hearing was recorded but not transcribed. Neither party submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Wayne Cassity, was a certified building contractor having been issued license C-6620. Respondent was the qualifying contractor for Cassity Construction, 5000 Rena Street North, St. Petersburg, Florida.

   
   

2. On or about December 19, 1995, Respondent contracted with Mr. and Mrs. Ralph Thomas to build an addition to the back of their home located at 1537 Carson Circle Northeast, St. Petersburg, Florida. The contract provided that the construction project was to be completed in forty (40) working days, or about two months.

   
   

3. The contract was later modified by agreement of the parties on January 26, 1995. Except for an increase in the cost of the project, the amended contract was substantially the same as the original contract. Under the terms of the modified agreement, the cost increased from $14,400.00 to $15,900.00 The increased cost resulted from changes in the plans that were necessary to comply with certain FEMA regulations.

4. Under the terms of the agreement, payment for the work performed was to be made at various intervals during the construction project. The contract required that Mr. and Mrs. Thomas pay Respondent $3,300.00 upon execution of the contract; $5,040.00 after masonry work was completed; $5,040.00 after completion of framing; and $2,520.00 upon completion of the contract.

   
   

5. In regard to Respondent's obligations, the contract provided in pertinent part the following:

   
   

   1. Furnish drawing to owner for approval.

   2. Obtain a building permit from the City of St. Petersburg.

   3. Remove and dispose of existing grass where the new addition is to be built.

   4. Remove and dispose of existing walls in spare room on east side of the new addition.

   5. Remove and dispose of existing 12'-0" sliding glass door.

   6. Furnish and install all material to con- struct a new concrete slab, approximately 19'-0' x 12' -0' made up of 3000 PSI con- crete, 16" x 16" footing with two no. 5 rebar continuous and 4" thick slab with 6" x 6" x 10 wire mesh on 6 mil visqueen.

   7. Furnish and install all material to con- struct exterior block wall for new addition

   8. Furnish and install all material to con- struct a new roof over new addition made up of 2" X 8" rafters 24" on center with 3/3" plywood. Overhangs to match existing house as close as possible.

   9. Furnish and install 90 lb. torch down roll roofing, for new room of new addition. (Entire flat room)

   10. Frame interior walls of new addition.

   11. Apply 1/2" drywall to interior of all walls and prepare for paint.

   12. Install electricity to new addition to include seven receptacles, four light switches and three overhead lights.

   13. Install rough plumbing for new bath to supply shower, toilet and sink.

   14. Install two new A/C ducts to new addi- tion tapping into existing trunk line.

       
       

6. Under the terms of the contract, Mr. and Mrs. Thomas were to supply and install the following: toilet; sink; vanity; all doors; base trim; door trim; interior paint; exterior paint; carpet; bath floor tile; shower fixtures, exterior stucco; and exterior soffit.

   
   

7. Notwithstanding the written contract terms, at some point prior to completing the project, the parties verbally agreed that the owners, not Respondent, would remove and dispose of the existing walls in the spare room and the sliding glass door. Additionally, the parties verbally agreed to reduce the price to be paid under the contract from $15,900.00 to $15,780.00. Although the

   written contract provided for increases and reductions pursuant to authorized change orders, no evidence was presented regarding the specific reason for the decrease in the construction cost.

   
   

8. The Pinellas County Building Office issued the building permit to Respondent on December 18, 1994 and Respondent began work on the Thomas' project several days later.

   
   

9. The Pinellas County Building Code requires contractors to call for inspection at various intervals during construction. This allows any code violations to be identified and corrected prior to completion of a given project. Although contractors are required to call for inspections, building inspectors sometimes make unrequested inspections.

   
   

10. On January 10, 1995, an initial unrequested inspection was made of the Thomas construction project. Respondent's slab/footer work on the project was rejected by the inspector because it did not meet FEMA requirements. Another unrequested inspection was made by a Pinellas County inspector on January 25, 1995, and again the footer work was rejected. Respondent called for an inspection of the project on January 29, 1995. Pursuant to Respondent's request, an inspection of the work was made on February 17, 1995, by a Pinellas County building inspector. At the time of the February inspection, the footer work was in progress but not yet complete. Two or three days later, after the footer and slab were completed, the work passed inspection.

    
    

11. The Thomas' made the first three payments to Respondent in accordance with the terms of the contract, but never made the final payment. On December 28, 1994, Respondent was paid $3,300.00 by Mr. and Mrs. Thomas. The second and third payments of $5,040.00 each were made on January 26, 1995 and February 10, 1995, respectively. The total payment paid to Respondent by the Thomas' was

    $13,380.00, and represents 85 percent of the total contract price. The percentage corresponds to the 85 percent of work completed by Respondent on the Thomas construction project.

    
    

12. On March 28, 1995, Mr. and Mrs. Thomas notified Respondent in writing of their general dissatisfaction with his work. Specifically, the owners expressed a concern that Respondent had failed to complete his designated responsibilities under the contract. Mr. and Mrs. Thomas further indicated that Respondent failed to do a quality job. While several items were of concern to the owners, their primary concern was that the floor level of the new addition was not even with the existing structure.

    
    

13. In order to placate the owners, Respondent agreed to return to the Thomas' home and perform the work which the Thomas' believed should have been done by Respondent. Respondent's attempts to comply with the Thomas' request were unsuccessful and attempts to satisfy the owners were futile. Despite the owners' personal dissatisfaction with Respondent's work, no competent and substantial evidence was presented regarding whether the actual work completed by Respondent was consistent with the approved plans and the actual contract.

    
    

14. The contract between Respondent and Mr. and Mrs. Thomas contained a dispute resolution clause. According to that provision, "all disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association." Mr. and Mrs. Thomas have failed to utilize the dispute resolution method prescribed in the contract.

15. An investigative inspection was performed by a Pinellas County inspector on March 19, 1996, approximately one year after Respondent initially completed his work on the Thomas home. Typically, three types of inspections are conducted: construction, electrical, and roofing. However, the March 19, 1996 inspection was limited to a construction inspection, and did not include a roofing or electrical inspection. The construction inspection revealed three code violations: the framing for the roof was improperly anchored; the air flow duct was blocked by the insulation; and the window frames were not sealed. The Code violations discovered as a result of the March 19, 1996, inspection were not included in the Administrative Complaint filed against Respondent.

    
    

16. On or about March 24, 1995, Respondent entered into a contract with B.

    G. Diehl to convert an apartment building to an Assisted Living Facility. The first payment under the contract was made on or about March 28, 1995. Work on the remodeling project began on March 28, 1995, although the permit was not obtained until the first week of May 1995. Respondent's failure to obtain the building permit was based on his belief that Ms. Diehl had verbal assurance from county or city officials that prior problems with permitting for this project had been resolved and that the permit would be issued.

    
    

17. The Pinellas County Building Code requires that building permits be obtained by contractors prior to beginning a project. This requirement is directed to licensed contractors, and it is the responsibility of the contractor, not the property owner, to ensure that proper permits were obtained prior to beginning the Diehl construction project.

    
    

18. The contract provided that the job would be complete on August 15, 1995, and also included a "time is of the essence" provision. The work was substantially complete by August 15, 1995, and certified for occupancy in October 1995. One of the reasons for the delay was the issuance of a Stop Work Order issued in April 1995.

    
    

19. Ms. Diehl's dissatisfaction with Respondent was affected by and escalated when Respondent placed a lien against her property. Though Ms. Diehl indicated she was generally not satisfied with Respondent's work, no competent and substantial evidence was presented demonstrating that the work was not completed or performed in a workmanlike manner.

    
    

20. During the course of the construction project there were numerous disputes between Ms. Diehl and Respondent. The primary dispute involved a work order which would have required Ms. Diehl to pay an additional $10,000-$20,000. The change was deemed necessary by Respondent after he consulted with the civil engineer employed by Ms. Diehl for this project. The civil engineer informed Respondent that the plans initially drawn by the engineer and which had been relied upon by Respondent in his bid would not work. Similarly, additional changes were required after Respondent conferred with the structural engineer retained by Ms. Diehl. These changes, at least in part, required a modification of the location of bathroom fixtures.

    
    

21. The essence of Ms. Diehl's complaints regarding the work performed by Respondent involve changes that were made to the plans without her approval. However, Ms. Diehl met with Respondent, the civil engineer and the structural engineer, and was aware that the engineers knew and agreed that the changes were necessary.

    
    

22. Ms. Diehl was responsible for the electrical work involved in this project, and approved Randy's Electric as the company to perform the electrical

    work required by the contract. Respondent subcontracted with Rainbow Gas Company to install the gas piping which was required for this remodeling project.

    
    

23. The total contract amount for the Diehl construction project was

    $158,750.00. Ms. Diehl paid Respondent all payments except the last one and employed another contractor to complete the job. No evidence was presented indicating the amount of money Ms. Diehl paid to Respondent or the amount of money, if any, paid to the contractor who completed the work.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter in this proceeding pursuant to Sections 120.57(1) and 120.68(8), Florida Statutes (1995).

    
    

25. The Pinellas County Construction Licensing Board is statutorily empowered to discipline the license of building contractors based upon any of the grounds enumerated in Chapter 75, Laws of Florida, as amended by Chapter 89- 504, Section 24, Laws of Florida.

    
    

26. Respondent, a licensed building contractor, is charged with the responsibility of complying with all applicable building codes and regulations adopted by Petitioner. Likewise, Respondent is subject to disciplinary guidelines of Chapter 89-504, Section 24, Laws of Florida.

    
    

27. Petitioner has adopted the Standard Building Code pursuant to Chapter 89-504, Section 28, Laws of Florida.

    
    

28. In license discipline cases, such as this, the burden is on Petitioner to establish Respondent's guilt by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walter, 429 So.2d 797, at 800 (Fla. 4th DCA 1983) as follows:

    
    

    ... clear and convincing evidence requires

    that the evidence must be found to be credible; that the facts to which the witnesses testified must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts

    at issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

29. The allegations in this case are that Respondent is guilty of violating the following provisions of Chapter 85-504, Section 24, Laws of Florida:

    
    

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

    * * *

    1. Acting in the capacity of a contractor under any certificate or registration issued certificate holder or registrant as set forth

       in the certificate or registration, or in accor- dance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or regis- tration, or as later changed as provided in

       this part;

    2. 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.

    * * *

    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 90 days if the contractor terminates the project without notification

    to the prospective owner and without just cause.

    * * *

    1. Being found guilty of fraud or deceit or of gross negligence, incompetency, or miscon- duct in the practice of contracting.

    2. Proceeding on any job without obtaining applicable local building department permits and inspections.

    
    

30. Petitioner had failed to meet its burden this case. As to Count One, there was no evidence presented which indicated that Respondent abandoned the job. Rather the evidence established only that the Thomas' were not satisfied with Respondent's work. In this case, the contract was changed by verbal agreements between the parties, and under the contract a substantial amount of the work was to be completed by the owners. Therefore, the facts established that Respondent left the job when he thought it had been completed although the Thomas' did not agree that everything had been completed by Respondent.

    
    

31. With regard to Count Two, Petitioner failed to meet its burden. Count Two alleges that Respondent abandoned the job and the percentage of completion was less than the percentage of the total contract price paid at the time of the abandonment. This allegation was refuted by one of Petitioner's own witnesses who admitted that eighty-five percent of the work at the Thomas residence had been completed by Respondent. This percentage corresponds to the percentage of the total contract price paid to Respondent by the Thomas'. No contrary evidence was presented by Petitioner.

32. Petitioner did not meet its burden as to Count Four of the Administrative Complaint. No evidence was presented that established that Respondent failed to properly supervise the work or failed to complete the work, and is therefore, guilty of incompetence or misconduct in the practice of contracting in violation of Section 489.129(1)n), Florida Statutes.

    
    

33. Petitioner established by clear and convincing evidence the allegations contained in Count Five of the Administrative Complaint. It was undisputed that Respondent proceeded with the remodeling project prior to obtaining the required building permit. His failure to obtain the necessary permit prior to undertaking the work constitutes a willful disregard and violation of the Standard Building Code. Consequently, the proof demonstrates that Respondent violated Chapter 89-504, Section 24(2)(d) and (n), Laws of Florida.

    
    

34. With regard to Count Six , Petitioner failed to meet its burden. No evidence was presented to prove that Respondent installed gas piping for a commercial range without a permit, without inspection, and in violation of the National Fuel Gas Code. Rather, competent and substantial evidence demonstrated that Respondent subcontracted the installation of the gas piping to Rainbow Gas Company.

    
    

35. As to Count Seven, Petitioner has not met its burden. The allegation that Petitioner, by performing work on natural gas fuel lines, operated outside the scope of his competency license is not supported by the record in this case. As noted in the preceding paragraph, Respondent subcontracted the gas installation to Rainbow Gas Company. By subcontracting the gas installation work to a company in the business of doing this type of work, Respondent cannot be charged with operating outside the scope of his competency license. No evidence was presented to show that Rainbow Gas Company was not properly licensed and did not obtain the requisite permits or inspections.

    
    

36. Petitioner failed to prove by clear and convincing evidence that Respondent acted as an electrical contractor beyond the scope of his competency in violation of Chapter 89-504, Section 24(2)(g), Laws of Florida. Competent and substantial evidence adduced at hearing established that Ms. Diehl was responsible for the electrical work and that she selected and approved Randy Electric Company for the remodeling project. Consequently, Petitioner failed to meet its burden as to Count Eight of the Administrative Complaint.

    
    

37. Several documents were submitted by Petitioner as late-filed exhibits. These documents consisted primarily of letters supportive of Petitioner's position as to the Diehl remodeling project. These documents are deemed to be hearsay, and in accordance with Section 120.58(1)(a), Florida Statutes, are insufficient to support a finding of fact.

    
    

38. Petitioner failed to meet its burden with regard to Count Nine of the Administrative Complaint. No competent and substantial evidence was presented that Respondent committed unfair construction practices in violation of Rule 2- 15.003, Florida Administrative Code, by deviating or disregarding plans without consent of the buyer and failing to complete construction by the contracted completion date.

    
    

39. Petitioner is authorized to suspend certificate holders from all operations as contractors, suspend or revoke certificates, impose administrative fines not to exceed $1,000.00, require restitution, and impose reasonable

investigative and legal costs. Chapter 89-504, Section 24, Laws of Florida, and Chapter 93-387, Section 24, Laws of Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Pinellas County Construction Licensing Board

enter a final order that finds that:

1. Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(d), (h)2., and (d), Laws of Florida, as alleged in Counts One, Two, and Four of the Administrative Complaint.

   
   

2. Respondent violated the provisions of Chapter 89-504, Section 24(2)(n), Laws of Florida, as alleged in Count Five of the Administrative Complaint, and which assesses an administrative fine against Respondent in the amount of

   $100.00 for that violation.

   
   

3. Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(g) and (n), as alleged in Counts Six, Seven and Eight of the Administrative Complaint.

   
   

4. Respondent did not violate Rule 2-15.003, Florida Administrative Code, as alleged in Count Nine of the Administrative Complaint.

DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida.

CARLOYN S. HOLIFIELD, 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 4th day of June, 1996.

ENDNOTES

5/ Counts Five and Six correspond to Chapter 89-504, Section 24(2)(n), Laws of Florida.

6/ Correspond to Chapter 89-504, Section 24(2)(g), Laws of Florida. 7/ Repealed February 11, 1996.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

Wayne Cassity

5000 Renas Street North

St. Petersburg, Florida 33709

Howard Bernstein, Esquire

Senior Assistant County Attorney

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: 95-006190

Orders for Case No: 95-006190