STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1447

)

BRENT SOMERS GRAHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 10, 1998, in Shalimar, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire

355 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent's license as a certified residential contractor should be disciplined for the reasons given in the Administrative Complaint.

PRELIMINARY STATEMENT

This matter began on September 3, 1997, when Petitioner,

Department of Business and Professional Regulation, Construction Industry Licensing Board, issued an Administrative Complaint generally alleging that Respondent, Brent Somers Graham, a licensed residential contractor, had violated a number of provisions in Chapter 489, Florida Statutes (1995), when he undertook a construction project in the City of Mary Esther, Florida, in February 1996.

Respondent denied the allegations and requested a formal hearing under Section 120.569, Florida Statutes, to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on March 26, 1998, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

Pending efforts by the parties to settle the matter, the case was temporarily abated. After Respondent declined to sign a settlement stipulation, by Notice of Hearing dated September 1, 1998, a final hearing was scheduled on November 10, 1998, in Shalimar, Florida.

At final hearing, Petitioner presented the testimony of Katherine Cook Ward, the daughter of the alleged victim;

Noel Sasnett, a building official for the City of Mary Esther; and Keith Lynn Rockman, a building contractor. Also, it offered Petitioner's Exhibits 1-5. All exhibits were received in evidence. Although given timely notice of the hearing, Respondent did not appear.

After considerable delay, the transcript of hearing was filed on January 15, 1999. Proposed findings of fact and conclusions of law were filed by Petitioner on February 1, 1999, and they have been considerd by the undersigned.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. When the events herein occurred, Respondent, Brent Somers Graham, was licensed as a certified residential contractor having been issued license no. CR C056809 by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). Respondent was the licensed qualifying agent for G C Construction, Inc., whose business address is not of record. At the present time, Respondent's license is in a delinquent status.

2. In late 1995, a major hurricane struck the Panhandle section of Florida and damaged the home of Katherine M. Cook, who lived at 741 Miracle Strip, Mary Esther, in Okaloosa County, Florida. Among other things, the hurricane lifted an 78-foot porch off of her home, and a tree fell through its roof.

3. On January 18, 1996, Cook accepted a proposal by Respondent to repair the damage to her home for $9,000.00. A description of the work to be performed by Repondent is found on Petitioner's Exhibit 2, and it includes replacing a 78-foot by 12-foot screen porch and its roof, and other related work.

   Cook paid Respondent $2,700.00 as a down payment on the job on January 19, 1996.

4. On February 8, 1996, Respondent made application for a building permit with the City of Mary Esther (City). After receiving a permit, he then commenced to work on the repairs, mostly by himself but occasionally with the assistance of a few other helpers. When the job was supposedly completed in March 1996, Cook paid Respondent another $6,200.00, or a total of

   $8,900.00, pursuant to the parties' agreement.

   
   

5. Within a short time, Cook noticed that the porch roof was sagging and falling in. Efforts to reach Respondent were futile since he had disconnected his telephone and apparently left the area. She then asked that an inspector for the City, Neil Sasnett, to make an inspection of her home.

6. Sasnett quickly discovered that Respondent had never called for an inspection by the City, although the City Code required that he do so and Cook had paid for one. This omission constituted a violation of the local building code. It can be inferred from the evidence that, given the poor workmanship on the project, as described below, the violation was intentional, especially since a licensed contractor would be expected to be aware of this requirement.

7. Sasnett found numerous deficiencies in the work just completed by Respondent, including rafters that were notched to less than 4 inches about 3 feet inside the load bearing wall, a

   header on the outside bearing wall that was jointed in between the upright posts, and roofing metal panels improperly sealed. These deficiencies resulted in an unsafe roof in an uplift condition and one that would be dangerous to walk on. Because Cook lived on the Gulf of Mexico, and her home was subject to windy conditions, these deficiencies were especially egregious. All of the foregoing deficiencies constituted violations of the local building code.

8. Cook was forced to hire a second contractor to repair the porch since Respondent had left the area. For this additional work, Cook paid an additional $15,975.00, including

   $3,000.00 to tear out the faulty work previously performed by Respondent.

9. At hearing, the second contractor described Respondent's work as "very poor" and "substandard." Given this consideration, and the deficiencies described by the City's inspector, it is found that the faulty work constituted incompetency in the practice of contracting on the part of Respondent.

10. Throughout this process, Respondent refused to contact Cook or return to her home to make the needed repairs. After the complaint was issued by the Board, however, he telephoned Cook. Although he then offered to repair the porch, which had been repaired by another contractor some 18 months earlier, his main concern was that his license might be in jeopardy because of her complaint.

11. There is no record of Respondent having been previously disciplined by the Board. Therefore, it is fair to infer that these offenses were the first committed by Respondent.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (Supp. 1998).

13. Because Respondent's license is at risk, Petitioner bears the burden of proving by clear and convincing evidence that

    the allegations in the complaint are true. See, e.g., Ferris v. Turlington, 510 So. 2d 292 (Fla. 1982).

14. The complaint alleges that Respondent: (a) violated Section 489.227(1)(a), Florida Statutes (1995), which in turn constitutes a violation of Section 489.129(1)(c), Florida Statutes (1995), "by failing to perform any statutory or legal obligation placed upon a licensee by failing to call for a final inspection of the porch addition and by failing to perform construction work according to code" (Count I); (b) violated Section 489.129(1)(d), Florida Statutes (1995) "by knowingly violating the applicable building code or laws of the state or of any muncipalities or counties thereof" (Count II); (c) violated Section 489.129(1)(p), Florida Statutes (1995) by "proceeding on any job without obtaining the applicable local building department permits and inspections" (Count III); and (d) violated Section 489.129(1)(n), Florida Statutes (1995), by "committing incompetency or misconduct in the practice of contracting"

    (Count IV).

    
    

15. As to Count I, Petitioner has established by clear and convincing evidence that Respondent failed to perform work according to the local building code and failed to call for a final inspection, both required under the local building code. This conduct violated Section 455.227(1)(k), Florida Statutes (1995), which makes it unlawful for a licensee to fail "to perform any statutory or legal obligation." By doing so,

    Respondent also violated Section 489.129(1)(c), Florida Statutes

    (1995), which makes it unlawful to violate any provision in Chapter 455, Florida Statutes.

16. As to Count II, Petitioner has established by clear and convincing evidence that Respondent knowingly failed to obtain a final inspection of his work in violation of the local code. This in turn constitutes a violation of Section 489.129(1)(d), Florida Statutes (1995), which makes it unlawful for a licensee to violate the applicable building code of any municipality.

17. As to Count III, the evidence shows clearly and convincingly that Respondent proceeded with the job without calling for the required inspection. This constituted a violation of Section 489.129(1)(p), Florida Statutes (1995), which proscribes the same conduct.

18. Finally, Petitioner has established by clear and convincing evidence that Respondent's substandard workmanship equated to incompetency in the practice of contracting within the meaning of Section 489.129(1)(m), Florida Statutes (1995). Therefore, Count IV has been sustained.

19. Rule 61G4-17.001, Florida Administrative Code, prescribes a range of penalties to be imposed for violations of Chapter 489, Florida Statutes. For a first-time violation of local building codes in violation of Section 489.129(1)(d), Florida Statutes, the rule calls for a penalty ranging from a

    $500.00 to $1,250.00 fine; for failing to obtain an inspection in violation of Section 489.129(1)(p), the rule specifies no penalty

    for a first violation; for having been found guilty for the first time of incompetency in the practice of contracting in violation of Section 489.129(1)(n), the rule calls for a penalty ranging from a $500.00 to $1,500.00 fine; and for a violation of Section 489.189(1)(c), which makes it unlawful to violate any provision within Chapter 455, the rule calls for a penalty "within [the] ranges prescribed by Section 455.227, unless otherwise specified herein." That section authorizes the Board to suspend or permanently revoke a license upon the licensee having been found guilty of violating that statute.

20. In its proposed order, and without greater specificity, Petitioner suggests that Respondent "be penalized to the maximum extent allowed under the statute and rules including, but not limited to, financial restitution to the customer for financial harm directly related to Respondent's [conduct]."

21. Given Respondent's conduct, and the lack of any mitigating circumstances, revocation of his license is appropriate, without the imposition of a fine. In addition, as authorized by Section 489.129(1), Florida Statutes, the Board may require the licensee to make "financial restitution to a consumer for financial harm directly related to a violation of a provision of [Chapter 489]." Because Katherine M. Cook suffered financial harm directly related to a violation of Chapter 489, Respondent should be required to pay restitution to her in the amount of

$8,900.00, which represents the amount paid by her to Respondent

for his work, plus $3,000.00 for costs she incurred in having to have his shoddy work removed by another contractor, or a total of

$11,900.00.

RECOMMENDATION

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

RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding that Respondent is guilty of the violations described in Counts I through IV of the Administrative Complaint. For those violations, it is recommended that Respondent's license be revoked, and that he be required to pay Katherine M. Cook $11,900.00 as restitution for her costs incurred in her dealings with Respondent.

DONE AND ENTERED this 9th day of February, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1999.

COPIES FURNISHED:

John O. Williams, Esquire Maureen L. Holz, Esquire

355 North Monroe Street Tallahassee, Florida 32301

Brent Somers Graham 6156 White Oak Drive

Flowery Brand, Georgia 30542

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 Construction Industry Licensing Board.

Docket for Case No: 98-001447

Orders for Case No: 98-001447