STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4973

)

JAMES J. MULLALLY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 5, 1997, at Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leon M. Biegalski, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No Appearance for Respondent.

STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged violations of various specified provisions of Section 489.129(1), Florida Statutes.

The allegations are set forth in a seven count Administrative Complaint.

PRELIMINARY STATEMENT

By written notice of hearing mailed to all parties, the final hearing in this case was scheduled to begin at 11:00 a.m. on March 5, 1997. The Petitioner, through counsel, was present at the scheduled time and place. When the Respondent failed to appear at the scheduled time and place, the Administrative Law Judge waited until approximately 11:25 a.m. to begin the hearing. The hearing was called to order at 11:25 a.m., at which time the Respondent was still absent. The Respondent did not appear at any time during the course of the hearing. There has been no post-hearing communication from the Respondent regarding the reason for his failure to attend the hearing.

At the hearing on March 5, 1997, the Petitioner presented the testimony of two witnesses (the Respondent's customers) and offered 9 exhibits. All of the exhibits were received in evidence. The Petitioner requested, and was granted, official recognition of all of the relevant statutes and rules in effect at the times material to the allegations in the Administrative Complaint. The Petitioner also moved to have deemed admitted all of the requests for admission to which the Respondent had failed to reply. The motion was granted.

At the conclusion of the final hearing all parties were allowed ten days from the filing of the transcript within which

to file their respective proposed recommended orders. The transcript of the final hearing was filed on March 14, 1997.1 On March 21, 1997, the Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law.2 As of the date of this Recommended Order there has been no post-hearing submission by or on behalf of the Respondent.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was a Certified General Contractor, having been issued license number CG C046419, by the Florida Construction Industry Licensing Board.

2. At all times pertinent to this proceeding, Respondent was licensed in an individual capacity and thereby responsible for all his contracting activities.

3. On June 6, 1993, Respondent, doing business as Universal General Contractors, entered into a construction contract with the Fagnanis for the remodeling of a bathroom in their residence located at 3440 Northeast 170th Street, North Miami Beach, Florida 33160. The contracted price was three thousand eight hundred dollars ($3,800,00).

4. The Fagnanis paid at least two thousand seven hundred dollars ($2,700.00) to the Respondent as payment toward the contracted work.

5. The written contract between the Respondent and the Fagnanis did not include the Respondent's contractor's license number. That written contract had printed on it the business name "Universal General Contractors." When they entered into the contract, the Fagnanis thought they were doing business with a company named "Universal General Contractors."

6. At no time material hereto was Respondent registered with the Construction Industry Licensing Board as the licensed qualifier for Universal General Contractors.

7. Construction commenced on or about August 20, 1993.

   
   

8. Respondent failed to obtain a building permit or inspections for the Fagnani project.

9. Shortly after commencing the project, Respondent informed the Fagnanis he had to go to Boca Raton for an estimate, but would return to finish the project. Respondent failed to return to finish the Fagnani project. Respondent abandoned the Fagnani's project without just cause or notification to the Fagnanis. Respondent did not respond to any attempts by the Fagnanis to contact him concerning the completion of their project.

10. At the time Respondent abandoned the project the work was not complete. At the time of abandonment, the percentage of work completed was substantially less than the percentage of the contract price paid by the Fagnanis.

11. On December 28, 1993, as a result of Respondent's failure to complete the project, the Fagnanis filed a civil suit against Respondent in Case Number 93-16225 SP23(03), County Court in and for Dade County, Civil Division. On January 11, 1994, Respondent was properly served with notice of the civil suit. On January 27, 1994, a Default Final Judgment was entered against Respondent in favor of the Fagnanis. The Default Final Judgment entered against Respondent in the case was in the principal amount of two thousand five hundred dollars ($2,500.00) and costs of one hundred nine dollars ($109.00) for a total amount of two thousand six hundred nine dollars ($2,609.00), and bore interest at the rate of 12 percent per year. The Default Final Judgment is related to Respondent's practice of contracting.

12. To date, Respondent has failed to satisfy the terms of the Default Final Judgment. Respondent failed to satisfy the terms of the Default Final Judgment within a reasonable time. Respondent's incompetence and misconduct in overseeing the contracting and financial activities of his construction practice has resulted in a two thousand six hundred nine dollar ($2,609.,00) loss to the Fagnanis.

13. The Respondent has been the subject of prior disciplinary action by the Construction Industry Licensing Board. In two prior cases (DBPR Case Nos. 93-12155 and 94-04871) the Board has issued final orders finding the Respondent guilty of several provisions of the statutes regulating contractors.

    Several of the prior violations are of the same type as the violations at issue in this case.

    CONCLUSIONS OF LAW

    
    

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

15. Pursuant to Section 489.129, Florida Statutes (1992 Supp.), and Section 489.129, Florida Statutes (1993), the Florida Construction Industry Licensing Board is empowered to revoke, suspend, require financial restitution to a consumer, or otherwise discipline the license of a contractor who is found guilty of any of the grounds enumerated in Section 489.129(1), Florida Statutes. Statutes are cited for both years as the result of some charges occurring after the effective date of the latter statute, which contains a change in language of Section 489.129(1), Florida Statutes (1993).

16. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d

    112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So.2d 112, 116, at footnote 5, provides the following pertinent to the clear and convincing evidence standard:

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must

    be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy; as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)

17. Disciplinary action may only be based upon the offenses specifically alleged in the Administrative Complaint. See, Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

18. Section 489.129(1), Florida Statutes (1992 Supp.), authorizes the Petitioner to discipline contractors in the State of Florida and provides, in pertinent part, as follows:

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s. 489.1195, is found guilty of any of the following acts:

       * * *

       (g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth

       on the issued certificate or registration, or in accordance with the personnel of the certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this part.

       * * *

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

       
       

19. Section 489.129(1), Florida Statutes (1993), authorizes the Petitioner to discipline contractors in the State of Florida and provides in pertinent part, as follows:

    1. The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, or is a secondary qualifying agent responsible under s. 489.1195 is found guilty of any of the following acts:

       * * *

       (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. . . .

       * * *

       (k) Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.

       * * *

       (n) Committing incompetency or misconduct in the practice of contracting.

       * * *

       (p) Proceeding on any job without obtaining applicable local building department permits and inspections.

       * * *

       (r) 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.

       
       

20. Respondent, under Section 489.1195, Florida Statutes (1993), is responsible for "supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job."

21. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(h)2, Florida Statutes (1993), by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Mr. and Mrs. Fagnani paid Respondent the sum of two thousand seven hundred dollars ($2,700.00) and work completed by the Respondent was worth only a small fraction of that amount.

22. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(j), Florida Statutes

    (1992 Supp.), by failing to include his license number on the original contract between Respondent, doing business as Universal General Contractors, and Mr. and Mrs. Fagnani. Section 489.119(4)(b), Florida Statutes (1992 Supp.), requires, inter alia, that the license number of the contractor appear on every contract. Respondent's license number does not appear on the original contract between Respondent, doing business as Universal General Contractors, and Mr. and Mrs. Fagnani.

23. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(g), Florida Statutes (1992 Supp.), by acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration. Respondent, doing business as Universal General Contractors, contracted with the Fagnanis. At all times material to the contract with the Fagnanis, Respondent was licensed in an individual capacity; not as the licensed qualifying agent for Universal General Contractors.

24. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(k), Florida Statutes (1993), by abandoning a construction project in which Respondent was engaged or under contract as a contractor. Respondent advised the Fagnanis that he was going to another job and would return to finish their project; however, Respondent failed to return to complete the Fagnani's project. Additionally,

    Respondent failed to respond to all attempts by the Fagnanis to contact him regarding the completion of the project.

25. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(l)(p), Florida Statutes (1993), by proceeding on any job without obtaining applicable local building department permits and inspections. Respondent failed to obtain local building permits prior to commencing the Fagnani's project.

26. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(r), Florida Statutes (1993), by 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. Respondent has failed to satisfy the judgment obtained by the Fagnanis against him on January 27, 1994. The judgment was related to the practice of Respondent's profession. Respondent has made no attempt to satisfy the judgment. Three years and two months is more than a reasonable amount of time to satisfy the judgment.

27. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(n), Florida Statutes (1993), by committing incompetency or misconduct in the practice of contracting. Respondent, as a licensed contractor in the State of Florida failed to adequately supervise, control, and complete the contract between himself, doing business as Universal General Contractors, and the Fagnanis. Respondent's

    failure to adequately supervise, control, and complete the contract between himself, doing business as Universal General Contractors, and the Fagnanis is incompetence and misconduct in the practice of contracting and Respondent is guilty of same.

28. The Construction Industry Licensing Board has adopted disciplinary guideline rules. See Rule 61G4-17.001 and prior Rule 21E-17.001, Florida Administrative Code. Application of the disciplinary guideline rules to the violations proved in this case leads to the conclusion that the penalties proposed by the Petitioner are appropriate.3

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect:

1. Adopting the foregoing findings of fact and conclusions

   
   

   of law and concluding that the Respondent is guilty of the violations alleged in all seven counts of the Administrative Complaint;

2. Revoking the Respondent's license;

   
   

3. Ordering the Respondent to pay administrative fines in the total amount of twenty-five thousand dollars ($25,000.00);

4. Ordering the Respondent to pay restitution to Mr. and Mrs. Fagnani in the amount of two thousand six hundred nine dollars ($2,609.00); and

5. Ordering the Respondent to pay the costs incurred in the investigation and prosecution of this proceeding in an amount to be determined by the Construction Industry Licensing Board.

DONE AND ENTERED this 22nd day of April, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997.

ENDNOTES

1/ Actually, two original transcripts of the final hearing were filed on March 14, 1997; one bearing a court reporter certificate dated March 6, 1997, and the other bearing a certificate dated March 13, 1997. The transcript certified on March 6, 1997, suffers from numerous errors and omissions. The transcript certified on March 13, 1997, is somewhat improved, but still falls short of what one should be able to expect from a professional court reporter; however, it substantially reflects the events which occurred at hearing.

2/ The Petitioner's proposed recommended order was well-prepared and fully and fairly addresses all of the factual and legal issues presented in this case. Large portions of the Petitioner's proposals have been incorporated into this Recommended Order.

3/ The Petitioner's proposed recommended order contains an extensive discussion of the application of the disciplinary guideline rules to the violations proved in this case. (See pages 11-16 of Petitioner's proposed recommended order.) That discussion provides a persuasive basis for imposition of the penalty sought by the Petitioner.

COPIES FURNISHED:

Leon M. Biegalski, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

James J. Mullally

6551 Arleigh Court, No. 201 Boca Raton, Florida 33433

James J. Mullally

18620 Northeast 7th Court Miami, Florida 33179

James J. Mullally

109 Southwest 8th Court Hallandale, Florida 33009

Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, 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 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: 96-004973

Orders for Case No: 96-004973