STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1958

)

WAYNE CASSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 25, 1996, a formal administrative hearing was held in this case in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens

Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road

Largo, Florida 34643-5116

For Respondent: Wayne Cassity

5000 Rena Street

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 his building contractor's license.

PRELIMINARY STATEMENT

On or about March 20, 1996, Petitioner, Pinellas County Construction Licensing Board (Petitioner), filed an Administrative Complaint against Respondent, Wayne Cassity, alleging in three counts, that he violated Section 489.129(1)(h), Florida Statutes, and Chapter 75-489, Laws of Florida, as amended.

Specifically, Count One alleges that the Respondent violated Section 489.129(1)(h), Florida Statutes, by failing to return funds paid to him as partial payment for a construction project although he performed no work on the project. Count Two alleges that the Respondent abandoned the job and that the percentage of work completed by the Respondent was less than the total contract price paid at the time of abandonment. Count Three alleges that the Respondent

is guilty of fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting. Petitioner alleges that these acts by the Respondent constitute violations of Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24(2)(d),(h),(j), and (m), Laws of Florida.

The Respondent denied the allegations contained in the Administrative Complaint and requested a formal hearing. By letter dated April 22, 1996, the matter was referred to the Division of Administrative Hearings to conduct a formal proceeding. The formal hearing was originally set for July 17, 1996.

However, based on a motion filed by Petitioner, the hearing was reset for September 25, 1996, when it was held as scheduled.

At the hearing, Petitioner presented the testimony of Nan Ralston and Michael Ralston and had Exhibits P-1 and P-2 admitted into evidence. Respondent testified on his own behalf and introduced Respondent Exhibits Numbers 1-4 into evidence. At the request of the parties, the record remained open until October 7, 1996, for late-filed exhibits, although none were filed. The hearing was recorded but not transcribed. Neither party submitted proposed recommended orders.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Respondent, Wayne Cassity (Respondent), was a certified building contractor having been issued license number C-6620. Respondent was doing business as Cassity Construction, 5000 Rena Street, St. Petersburg, Florida.

   
   

2. On or about June 13, 1995, Respondent entered into an agreement (Agreement) with Michael Ralston to build a room addition. The addition was to be constructed at the Ralston's residence located at 527 38th Avenue Northeast, St. Petersburg, Florida, at a cost of $38,800.00.

   
   

3. According to the Agreement, the work was to begin after the building permit and the Notice of Commencement were issued and was to be completed no more than one hundred twenty (120) days from the start date. Notwithstanding this provision, Respondent and Mr. Ralston understood that performance by both parties under the contract was contingent on the Ralstons' securing financing for the project.

   
   

4. On or about October 2, 1995, Michael Ralston and his wife, Nan Ralston, received financing for the project and shortly thereafter paid Respondent

   $3780.00, or approximately ten percent of the total contract price

   
   

5. The day after Respondent received the check, he and Michael Ralston went to the permitting office to obtain a building permit for the Ralston addition. While in the permitting office, Respondent and Mr. Ralston reviewed a document which indicated that the Ralston's home was in a flood zone. Before executing the Agreement, Respondent failed to obtain and review a survey of the Ralston property or other documents which would have provided this information. Consequently, prior to applying for the building permit, Respondent was unaware that the Ralston home was located in a flood zone.

   
   

6. Because the Ralston home was located in a flood zone, Federal Emergency Management Agency regulations precluded construction of the addition that Respondent contracted to build. Realizing that the plans for the addition specified in the Agreement were no longer a viable option, Respondent requested

   that Mr. Ralston give him a week to provide alternative plans which would allow construction of an addition to the Ralston home.

   
   

7. As he promised, Respondent provided the Ralstons with two options for construction of an addition which he believed would not run afoul of applicable federal regulations. Under the first option, Respondent would construct the addition, but at an elevation eight inches higher than what was called for in the original plans. The second option provided by Respondent was to construct the addition according to the original plans; however the "addition" would not adjoin the existing house, but would be a separate structure.

   
   

8. Respondent offered these options in a good faith attempt to provide the Ralstons with alternatives that would meet their needs. However, both of the options represented a significant departure from the addition that was provided for in the Agreement. After considering and reviewing the two options proposed by Respondent, the Ralstons rejected both of them.

   
   

9. After learning that federal regulations precluded construction of the addition specified in the Agreement and rejecting Respondent's alternative proposals, the Ralstons asked Respondent to refund the $3780.00. Respondent refused to return the money even though he never performed any work pursuant to the Agreement.

   
   

10. Before entering the Agreement with the Ralstons, Respondent incurred an $800.00 cost to have the original plans for the Ralston addition developed by an architect. Although Respondent contends that the Ralstons owe him $800.00 for the plans, Respondent never billed them for the costs associated with development of the plans.

    
    

11. Furthermore, there is no provision in the Agreement which addresses payment for the plans. According to the Agreement, Respondent was required to "furnish all of the materials and perform all of the work shown on the Drawings and/or described in the Specifications entitled Exhibit A." With regard to Mr. Ralston's obligation, the Agreement states that he is to pay Respondent

    $38,800.00 "for the material and labor to be performed under the Contract...subject to additions and deductions pursuant to authorized change orders." In absence of any provision in the Agreement to the contrary, Mr. Ralston is not obligated to pay Respondent for the plans.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The Pinellas County Construction Licensing Board is statutorily empowered to discipline the licenses of building contractors based upon any of the grounds enumerated in Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24, Laws of Florida, and Section 489.129, Florida Statutes.

    
    

14. Respondent, as a licensed building contractor, is subject to disciplinary guidelines of Chapter 89-504, Section 24, Laws of Florida, and Section 489.129, Florida Statutes.

    
    

15. In license discipline cases such as this, Petitioner must prove the alleged violations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

16. Petitioner alleges that Respondent is guilty of violating the following provisions of Chapter 89-504, Section 24, Laws of Florida:

    
    

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

    * * *

    (h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer....

    * * *

    (j) Failing in any material respect to comply with the provisions of this part.

    * * *

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

    
    

17. Respondent is also charged with violating Section 489.129 (1)(h), Florida Statutes. That section authorizes disciplinary action if a licensee or certificate holder is guilty of the following:

    
    

    (h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer....

    
    

18. Petitioner established by clear and convincing evidence the allegations contained in Counts One and Two of the Administrative Complaint. It is undisputed that after entering into a contract to build a room addition, Respondent was paid $3780.00, approximately ten percent of the total contract amount. Furthermore, the evidence established that after receiving the money, Respondent learned that the site on which the addition was to be built was in a flood zone; as a result thereof, applicable regulations precluded construction of the addition. Although Respondent was unable to perform any work under the contract, he failed to refund the money paid to him by the homeowners. Such failure constitutes a violation of Section 489.129(1)(h), Florida Statutes, and Chapter 89-504, Section 24(2)(d) and (h), Laws of Florida.

    
    

19. Petitioner proved by clear and convincing evidence that Respondent is guilty of the conduct alleged in Count Three of the Administrative Complaint The evidence established that prior to contracting with Mr. Ralston, Respondent failed to secure necessary information regarding the type of zone in which the Ralston property was located. As a result of his failure to secure such information, Respondent contracted to construct an addition which was not allowed under governing regulations. This act by Respondent demonstrated incompetency or misconduct in the practice of contracting and is a basis for disciplinary action pursuant to Chapter 89-504, Section 24(2)(m), Laws of Florida.

    
    

20. Petitioner is authorized to suspend certificate holders from all operations as contractors; suspend or revoke certificates; impose administrative fines not to exceed $1000.00; 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 the Pinellas County Construction Licensing Board enter a

final order finding Respondent, Wayne Cassity, guilty of violating Section

489.129 (1)(h), Florida Statutes, and Chapter 89-504, Section 24(2)(d),(h),(j) and (m), Laws of Florida; imposing an administrative fine of $500.00; and requiring restitution in the amount of $3780.00 be paid to Nan and Michael Ralston.

DONE and ENTERED this 12th day of November, 1996, in Tallahassee, Leon County, Florida.

CARLOYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-647

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 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 Rena Street

St. Petersburg, Florida 33709

Howard Bernstein

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 within 15 days from the date of 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: 96-001958

Orders for Case No: 96-001958