STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-5984

)

GARY FREEMAN, )

d/b/a FREEMAN AND ASSOCIATES )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on September 15, 1997, in Melbourne, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Qualified Representative Boyd, Lindsey, Williams & Branch, P.A.

1407 Piedmont Drive East Post Office Box 14267 Tallahassee, Florida 32317

For Respondent: Gary Freeman, pro se

796 Hawser Street North East Palm Bay, Florida 32907

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and

1. , and 489.531(1)(a), Florida Statutes (1995), 1/ and, if so,

   what, if any, penalty should be imposed in accordance with Florida Administrative Rule 61G4-17.001. 2/

   PRELIMINARY STATEMENT

   Petitioner filed an Administrative Complaint against Respondent on November 5, 1996. Respondent timely requested an administrative hearing.

   At the hearing, Petitioner presented the testimony of three witnesses and submitted 13 exhibits for admission in evidence.

   Respondent presented the testimony of three witnesses and submitted 11 exhibits for admission in evidence. The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed with the undersigned on September 24, 1997.

   Petitioner timely filed its proposed recommended order ("PRO") on October 21, 1997. Respondent did not file a PRO.

   FINDINGS OF FACT

   1. Petitioner is the state agency responsible for regulating contractors in the state. Respondent is not licensed as a general contractor and is not the qualifying agent for Freeman Associates ("Freeman").

   2. In April 1995, Respondent entered into a contract with Charles and Lenore Brunty to renovate the Brunty residence located at 1301 Kanab Avenue North West, Palm Bay, Florida. The contract price for the renovation was $48,494.86.

   3. Respondent provided the Bruntys with a written estimate of cost. The written estimate bears the headings, "Freeman

      Associates," "General Contracting," and "Property Improvements." It describes the type of work to be performed and separate costs for "Roofing," "Exterior Paint," "Exterior Windows/Screens," "Interior Woodwork," "Interior Cabinets," "Plumbing," "Electrical," "Air Conditioning/Hearing," "Interior Paint," "Flooring," and "Addition-Kitchen, Breakfast, Bath."

   4. Respondent represented to the Bruntys that he would oversee or supervise all of the renovations to their residence and would provide all permits. The contract states:

      Any and all work requiring permits shall be obtained by me and/or subcontractors prior to starting of any work on this project.

      Petitioner's Exhibit 2.

      Respondent obtained bids from subcontractors, oversaw their work, and charged the Bruntys for the work performed by the subcontractors.

   5. Respondent agreed to begin work on June 12, 1995. However, he performed no work before July 21, 1995.

   6. The work performed by Respondent did not comply with industry standards. Respondent removed the roof without providing adequate protection for the interior of the home. The weather damaged the ceilings and the Mexican tile.

   7. The ceilings had to be replaced by the Bruntys. The Mexican tile has not been replaced because of cost.

   8. On September 9, 1995, the Bruntys cancelled the contract. On September 19, 1995, Respondent presented a bill to the Bruntys for $16,826.38.

   9. The Bruntys telephoned the suppliers and discovered that Respondent had not paid the suppliers. The tile supplier's invoice was altered. The price had been exaggerated by $2,120, or more than 100 percent. The Bruntys refused to release any funds to Respondent until Respondent provided a full accounting.

   10. On October 6, 1995, Respondent filed a mechanic's lien against the Brunty property for $16,826.38. Thereafter, Respondent filed a second lien for $34,835.33.

   11. Respondent certified in the liens that he had paid for materials and performed all work. However, the two liens overstate the work performed and the cost of materials. Respondent in fact failed to pay all liens.

   12. The combined total of the two liens exceeds the contract price by $3,166.85. Respondent did not complete the renovations to the Brunty property and is not entitled to full payment of the contract price.

   13. The liens caused the lender to withhold construction funds for the renovations until the matter was resolved in civil court. In the interim, the Bruntys paid materials, subcontractors, and legal fees out of their own funds.

   14. In May 1995, Respondent acted as a general contractor in a second transaction. Respondent contracted with Mr. Curt Iffinger, a licensed air conditioning contractor, to install an air conditioning system at the home of Mr. Albert Bresch located at 4149 Sherwood Boulevard, Melbourne, Florida.

   15. Respondent represented to Mr. Iffinger that Respondent was a general contractor. Mr. Bresch paid Respondent for the installation.

   16. Mr. Iffinger performed the required installation. Respondent refused to pay Mr. Iffinger.

   17. Mr. Iffinger filed a mechanic's lien against the Bresch property. Respondent failed to cause the lien to be removed within 75 days and executed an affidavit stating that all liens were paid in full.

       CONCLUSIONS OF LAW

   18. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

   19. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that

       Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty.

       Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner satisfied its burden of proof.

   20. Respondent violated Section 489.127(1)(a) by falsely holding himself and his business out as a licensed general contractor. Respondent violated Section 489.127(1)(a) in the Brunty and Bresch transactions.

   21. Respondent violated Section 489.127(1)(f) in both the Brunty and Bresch transactions by engaging in the business of contracting, acting in the capacity of a contractor, and

       advertising himself and his business as available for such activity without being properly licensed. Respondent is an unlicensed individual who acted in the capacity of a general contractor in the renovations to the Brunty property and in the installation of air conditioning at the Bresch property.

   22. Respondent violated Section 489.129(1)(h) in the Bresch transaction by committing mismanagement and misconduct in the practice of contracting which caused financial harm to the customer. Respondent caused financial harm to Mr. Bresch by allowing a lien to be recorded against the Bresch property when Respondent had already received payment for the work and then failing to cause the lien to be removed within 75 days.

   23. Respondent violated Section 489.129(1)(o) in the Brunty transaction by committing incompetency and gross negligence which resulted in significant danger to the property of the homeowner. Respondent removed the roof from the Brunty home and failed to protect the interior of the home.

   24. Respondent violated Section 489.129(1)(m) in the Brunty and Bresch transactions by committing fraud and deceit. Respondent represented himself as a general contractor when he knew that he was unlicensed. Respondent signed an affidavit in the Bresch transaction stating that all liens had been paid. Respondent filed two false liens against the Brunty property.

   25. Respondent violated Section 489.531 by practicing electrical contracting without a license. Respondent practiced electrical contracting within the meaning of Sections 489.505(9) and 489.505(12).

   26. Respondent negotiated a contract to perform electrical work for the Bruntys and bid the contract within the meaning of Section 489.505(9). Respondent installed, repaired, and altered electrical wiring, fixtures, and appliances in the Brunty home and replaced air handlers and compressor units in the Bresch home. In each case, Respondent performed electrical work within the meaning of Section 489.505(12).

   27. Section 455.228 authorizes Petitioner to impose a fine of up to $5,000 for each of the incidents in which Respondent violated any of the provisions of Sections 489.127, 489.129, and

       489.531. The Brunty and Bresch transactions comprise two separate incidents in which Respondent violated the provisions of Sections 489.127, 489.129, and 589.531. Under Section 455.228, Respondent is subject to a maximum fine of $10,000.

   28. Rule 61G4-17.001 prescribes specific penalties for violations of Section 489.129. However, Rule 61G4-17.001 does not prescribe specific penalties for violations of Sections 489.127(1)(a) and (f) and 489.531.

   29. For the first violation of Section 489.129(1)(h), Rule 61G4-17.001(8), in relevant part, authorizes a fine of $750 to

       $1,500. For the first violation of Section 489.129(1)(m) which results in monetary harm or damage to property, Rule 61G4-

       17.001(13)(b) authorizes a fine of $500 to $2,000. For the first violation of Section 489.129(1)(o), Rule 61G4-17.001(15), in relevant part, authorizes a fine of $500 to $1,500.

   30. The maximum fines prescribed in Rules 61G4-17.001(8) and (13)(b), in the respective amounts of $1,500 and $2,000, apply to each of the Brunty and Bresch transactions. The $1,500 maximum fine prescribed in Rule 61G4-17.001(15) applies only to the Brunty transaction. The maximum fine prescribed in Rule 61G4-17.001 for both transactions is $8,500.

   31. Rule 61G4-17.002 lists several aggravating and mitigating circumstances that may be considered in imposing a penalty. They include monetary or other damage to customers, job-site violations, the severity of the offense, the danger to the public, the number of offenses, the number of complaints

       filed, actual damage to the customer, the deterrent effect of the penalty, and its effect on Respondent's livelihood.

   32. There are several aggravating circumstances present in this case. The violations by Respondent caused monetary and other damage to the Bruntys and to Mr. Bresch.

   33. The Bruntys were damaged by incurring the expense of removing false liens from their property. The title to the Brunty and Bresch properties was clouded for a substantial period. Respondent's actions represent a danger to the public.

   34. Respondent's violations in the Brunty transaction involved actual job-site violations. The job-site violations

       were severe and involve incompetence, gross negligence, and misconduct. They represent a danger to the public.

   35. Respondent's violations resulted in actual damage to the customers. The amount of money involved in the Brunty transaction was substantial.

       
       

   36. Respondent has no prior disciplinary history. Respondent's violations are limited to two transactions and do not involve multiple transactions over an extended period.

   37. Neither party presented any evidence of the deterrent effect of a fine. Neither party presented any evidence of the effect of a penalty on Respondent's livelihood.

   38. The aggravating circumstances far outweigh the mitigating circumstances. Petitioner should impose the maximum fine authorized in Petitioner's rules for first offenses.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and (o), and 489.531(1)(a) and imposing an administrative fine of $8,500.

DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida.

DANIEL MANRY

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) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997.

ENDNOTES

1/ All references to chapters and sections are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.

COPIES FURNISHED:

Lynda Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399-0792

John O. Williams, Esquire

Maureen L. Holz, Qualified Representative Boyd, Lindsey, Williams & Branch, P.A.

1407 Piedmont Drive East Post Office Box 14267 Tallahassee, Florida 32317

Gary Freeman, pro se

796 Hawser Street North East Palm Bay, Florida 32907

Rodney Hurst, Executive Director Department of Business and

Professional Regulation Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

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: 96-005984

Orders for Case No: 96-005984